Exhibit 4
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BCAP TRUST LLC 2006-AA2
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-AA2
MASTER SERVICING AND TRUST AGREEMENT
between
BCAP LLC,
Depositor,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer, Securities Administrator and Custodian
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
Dated November 1, 2006
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions..................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Master Servicer of the Mortgage Loans......
Section 2.03 Execution and Delivery of Certificates.......................
Section 2.04 REMIC Matters................................................
Section 2.05 Representations and Warranties of the Depositor..............
Section 2.06 Representations and Warranties of the Trustee................
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Distribution Account and Excess Reserve Fund Account.........
Section 3.02 Investment of Funds in the Distribution Account..............
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution...................................
Section 4.02 Monthly Statements to Certificateholders.....................
Section 4.03 Allocation of Applied Realized Loss Amounts..................
Section 4.04 Certain Matters Relating to the Determination of LIBOR.......
Section 4.05 Supplemental Interest Account................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.....................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.04 Persons Deemed Owners........................................
Section 5.05 Access to List of Certificateholders' Names and Addresses....
Section 5.06 Maintenance of Office or Agency..............................
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor......................
Section 6.02 Merger or Consolidation of the Depositor.....................
Section 6.03 Limitation on Liability of the Depositor and Others..........
Section 6.04 Option to Purchase Defaulted Mortgage Loans..................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Master Servicer to Act; Appointment of Successor.............
Section 7.03 Master Servicer to Act as Servicer...........................
Section 7.04 Notification to Certificateholders...........................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee........................................
Section 8.02 [Reserved]...................................................
Section 8.03 Certain Matters Affecting the Trustee........................
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans........
Section 8.05 Trustee May Own Certificates.................................
Section 8.06 Trustee's Fees and Expenses..................................
Section 8.07 Eligibility Requirements for the Trustee.....................
Section 8.08 Resignation and Removal of the Trustee.......................
Section 8.09 Successor Trustee............................................
Section 8.10 Merger or Consolidation of the Trustee.......................
Section 8.11 Appointment of Co-Trustee or Separate Trustee................
Section 8.12 Tax Matters..................................................
Section 8.13 Annual Statement as to Compliance............................
Section 8.14 Annual Reports on Assessment of Compliance with Servicing
Criteria; Annual Independent Public Accountants'
Attestation Report..........................................
Section 8.15 Periodic Filings.............................................
Section 8.16 Tax Classification of the Excess Reserve Fund Account,
the Supplemental Interest Account and the Interest Rate
Swap Agreement..............................................
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's
Obligations.................................................
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance...................................................
Section 9.03 Representations and Warranties of the Master Servicer........
Section 9.04 Master Servicer Events of Default............................
Section 9.05 Waiver of Default............................................
Section 9.06 Successor to the Master Servicer.............................
Section 9.07 Compensation of the Master Servicer..........................
Section 9.08 Merger or Consolidation......................................
Section 9.09 Resignation of the Master Servicer...........................
Section 9.10 Assignment or Delegation of Duties by the Master Servicer....
Section 9.11 Limitation on Liability of the Master Servicer...............
Section 9.12 Indemnification; Third Party Claims..........................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator...........................
Section 10.02 Certain Matters Affecting the Securities Administrator.......
Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans..............................................
Section 10.04 Securities Administrator May Own Certificates................
Section 10.05 Securities Administrator's Fees and Expenses.................
Section 10.06 Eligibility Requirements for Securities Administrator........
Section 10.07 Resignation and Removal of Securities Administrator..........
Section 10.08 Successor Securities Administrator...........................
Section 10.09 Merger or Consolidation of Securities Administrator..........
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator...............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.......................................................
Section 11.02 Final Distribution on the Certificates.......................
Section 11.03 Additional Termination Requirements..........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Governing Law................................................
Section 12.04 Intention of Parties.........................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Limitation on Rights of Certificateholders...................
Section 12.08 Certificates Nonassessable and Fully Paid....................
Section 12.09 Waiver of Jury Trial.........................................
Section 12.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness..............................................
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
EXHIBIT A Form of Class A and Class M Certificates
EXHIBIT B Form of Class R Certificates
EXHIBIT C Form of Class CE Certificates
EXHIBIT D Form of Request for Release
EXHIBIT E Form of Initial Certification of Master Servicer
EXHIBIT F Form of Document Certification and Exception Report of Master
Servicer
EXHIBIT G Form of Residual Transfer Affidavit
EXHIBIT H Form of Transferor Certificate
EXHIBIT I Form of Rule 144A Letter
EXHIBIT J Form of Certification to be Provided with Form 10-K
EXHIBIT K-1 Form of Securities Administrator Certification to be Provided
to Depositor
EXHIBIT K-2 Form of Master Servicer Certification to be provided to
Depositor
EXHIBIT L Sale Agreements
EXHIBIT M Servicing Agreements
EXHIBIT N Reserved
EXHIBIT O Interest Rate Swap Agreement
EXHIBIT P Servicing Criteria
EXHIBIT Q Additional Form 10-D Disclosure
EXHIBIT R Additional Form 10-K Disclosure
EXHIBIT S Form 8-K Disclosure Information
EXHIBIT T Additional Disclosure Notification
EXHIBIT U Amendment Reg AB
THIS MASTER SERVICING AND TRUST AGREEMENT, dated as of November 1,
2006 (this "Agreement"), is hereby executed by and between BCAP LLC, a Delaware
limited liability company (the "Depositor"), ▇▇▇▇▇ FARGO BANK, N.A., as
securities administrator (in such capacity, the "Securities Administrator"), as
master servicer (in such capacity, the "Master Servicer") and custodian (in such
capacity, the "Custodian") and HSBC BANK USA, NATIONAL ASSOCIATION, as trustee
(the "Trustee").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator shall elect that four segregated asset
pools within the Trust Fund (exclusive of (i) the Interest Rate Swap Agreement,
(ii) the Supplemental Interest Account, (iii) the Excess Reserve Fund Account,
and (iv) the right of the Offered Certificates to receive Basis Risk Carry
Forward Amounts and, without duplication, Upper Tier Carry Forward Amounts and
the obligation to pay Class IO Shortfalls) be treated for federal income tax
purposes as comprising four REMICs (each, a "Trust REMIC" or, in the
alternative, Pooling Tier REMIC-1, Pooling Tier REMIC-2, the Lower Tier REMIC
and the Upper Tier REMIC, respectively). Each Class of Certificates (other than
the Class R Certificates), other than the right of each Class of Offered
Certificates to receive Basis Risk Carry Forward Amounts and, without
duplication, Upper Tier Carry Forward Amounts and the obligation to pay Class IO
Shortfalls and the right of the Class CE Certificates to receive payments from
the Interest Rate Swap Agreement and the right to receive Class IO Shortfalls,
represents ownership of a regular interest in the Upper Tier REMIC for purposes
of the REMIC Provisions. The Class R Certificates represent ownership of the
sole class of residual interest in each of Pooling Tier REMIC-1, Pooling Tier
REMIC-2, the Lower Tier REMIC and the Upper Tier REMIC for purposes of the REMIC
Provisions. The Startup Day for each Trust REMIC is the Closing Date. The latest
possible maturity date for each regular interest is the latest date referenced
in Section 2.04.
The Upper Tier REMIC shall hold as assets the several classes of
uncertificated Lower Tier REMIC Regular Interests, set out below. The Lower Tier
REMIC shall hold as assets the several classes of uncertificated Pooling Tier
REMIC-2 Regular Interests. Pooling Tier REMIC-2 shall hold as assets the several
classes of uncertificated Pooling Tier REMIC-1 Regular Interests. Pooling Tier
REMIC-1 shall hold as assets the assets of the Trust Fund (exclusive of (i) the
Interest Rate Swap Agreement, (ii) the Supplemental Interest Account, (iii) the
Excess Reserve Fund Account, and (iv) the right of the Offered Certificates to
receive Basis Risk Carry Forward Amounts and, without duplication, Upper Tier
Carry Forward Amounts and the obligation to pay Class IO Shortfalls).
For federal income tax purposes, each Class of Offered Certificates
represents beneficial ownership of a regular interest in the Upper Tier REMIC
and the right to receive Basis Risk Carry Forward Amounts and, without
duplication, Upper Tier Carry Forward Amounts, subject to the obligation to pay
Class IO Shortfalls, and the Class CE Certificates represent beneficial
ownership of two regular interests in the Upper Tier REMIC and the right to
receive Class IO Shortfalls, the Excess Reserve Fund Account, the Supplemental
Interest Account and the Interest Rate Swap Agreement, which portions of the
Trust Fund shall be treated as a grantor trust.
Pooling Tier REMIC-1
Pooling Tier REMIC-1 shall issue the following interests in Pooling
Tier REMIC-1, and each such interest, other than the Class PT1-R Interest, is
hereby designated as a regular interest in the Pooling Tier REMIC-1. Pooling
Tier REMIC-1 shall also issue the Class PT1-R Interest. The Class PT1-R Interest
is hereby designated as the sole class of residual interest in Pooling Tier
REMIC-1.
Initial Pooling
Pooling Tier Tier
Pooling Tier REMIC-1 REMIC-1 Interest REMIC-1
Interest Rate Principal Amount
----------------------- ------------------- -------------------
Class PT1-1A (1)
Class PT1-1B (2)
Class PT1-2A (1)
Class PT1-2B (2)
Class PT1-3A (1)
Class PT1-3B (2)
Class PT1-4A (1)
Class PT1-4B (2)
Class PT1-5A (1)
Class PT1-5B (2)
Class PT1-6A (1)
Class PT1-6B (2)
Class PT1-7A (1)
Class PT1-7B (2)
Class PT1-8A (1)
Class PT1-8B (2)
Class PT1-9A (1)
Class PT1-9B (2)
Class PT1-10A (1)
Class PT1-10B (2)
Class PT1-11A (1)
Class PT1-11B (2)
Class PT1-12A (1)
Class PT1-12B (2)
Class PT1-13A (1)
Class PT1-13B (2)
Class PT1-14A (1)
Class PT1-14B (2)
Class PT1-15A (1)
Class PT1-15B (2)
Class PT1-16A (1)
Class PT1-16B (2)
Class PT1-17A (1)
Class PT1-17B (2)
Class PT1-18A (1)
Class PT1-18B (2)
Class PT1-19A (1)
Class PT1-19B (2)
Class PT1-20A (1)
Class PT1-20B (2)
Class PT1-21A (1)
Class PT1-21B (2)
Class PT1-22A (1)
Class PT1-22B (2)
Class PT1-23A (1)
Class PT1-23B (2)
Class PT1-24A (1)
Class PT1-24B (2)
Class PT1-25A (1)
Class PT1-25B (2)
Class PT1-26A (1)
Class PT1-26B (2)
Class PT1-27A (1)
Class PT1-27B (2)
Class PT1-28A (1)
Class PT1-28B (2)
Class PT1-29A (1)
Class PT1-29B (2)
Class PT1-30A (1)
Class PT1-30B (2)
Class PT1-31A (1)
Class PT1-31B (2)
Class PT1-32A (1)
Class PT1-32B (2)
Class PT1-33A (1)
Class PT1-33B (2)
Class PT1-34A (1)
Class PT1-34B (2)
Class PT1-35A (1)
Class PT1-35B (2)
Class PT1-36A (1)
Class PT1-36B (2)
Class PT1-37A (1)
Class PT1-37B (2)
Class PT1-38A (1)
Class PT1-38B (2)
Class PT1-39A (1)
Class PT1-39B (2)
Class PT1-40A (1)
Class PT1-40B (2)
Class PT1-41A (1)
Class PT1-41B (2)
Class PT1-42A (1)
Class PT1-42B (2)
Class PT1-43A (1)
Class PT1-43B (2)
Class PT1-44A (1)
Class PT1-44B (2)
Class PT1-45A (1)
Class PT1-45B (2)
Class PT1-46A (1)
Class PT1-46B (2)
Class PT1-47A (1)
Class PT1-47B (2)
Class PT1-48A (1)
Class PT1-48B (2)
Class PT1-49A (1)
Class PT1-49B (2)
Class PT1-50A (1)
Class PT1-50B (2)
Class PT1-51A (1)
Class PT1-51B (2)
Class PT1-52A (1)
Class PT1-52B (2)
Class PT1-53A (1)
Class PT1-53B (2)
Class PT1-54A (1)
Class PT1-54B (2)
Class PT1-55A (1)
Class PT1-55B (2)
Class PT1-56A (1)
Class PT1-56B (2)
Class PT1-57A (1)
Class PT1-57B (2)
Class PT1-58A (1)
Class PT1-58B (2)
Class PT1-59A (1)
Class PT1-59B (2)
Class PT1-R (3)
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling Tier REMIC-1 Net WAC Rate, subject to a maximum
rate of [____]%.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling Tier REMIC-1 Net WAC
Rate over (B) [____]%.
(3) The Class PT1-R Interest shall not have a principal balance and shall not
bear interest.
On each Distribution Date, the Securities Administrator shall first
pay from the Trust Fund and charge as an expense of Pooling Tier REMIC-1 all
expenses of the Trust for such Distribution Date. Such expense shall be
allocated in the same manner as Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be deemed to be distributed
to the Pooling Tier REMIC-1 Regular Interests at the rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Mortgage Loans shall be allocated to
the outstanding Pooling Tier REMIC-1 Regular Interest with the lowest numerical
denomination until the Pooling Tier REMIC-1 Principal Amount of such interest or
interests, as the case may be, is reduced to zero, provided that, with respect
to Pooling Tier REMIC-1 Regular Interests with the same numerical denomination,
such Realized Losses and payments of principal shall be allocated pro rata
between such Pooling Tier REMIC-1 Regular Interests.
Pooling Tier REMIC-2
Pooling Tier REMIC-2 shall issue the following interests in Pooling
Tier REMIC-2, and each such interest, other than the Class PT2-R Interest, is
hereby designated as a regular interest in Pooling Tier REMIC-2. The Class PT2-R
Interest is hereby designated as the sole class of residual interest in Pooling
Tier REMIC-2 and shall be represented by the Class R Certificates.
Pooling Tier Pooling Tier Corresponding Corresponding Corresponding
Pooling Tier REMIC-2 REMIC-2 Initial Pooling Tier REMIC-2 Pooling Tier REMIC-1 Scheduled Crossover
REMIC-2 Interest Interest Rate Principal Amount IO Interest Regular Interest Distribution Date
---------------- ------------- ---------------- -------------------- -------------------- -------------------
Class PT2-1A (1) Class PT2-IO-1 N/A N/A
Class PT2-1B (2) N/A N/A N/A
Class PT2-2A (1) Class PT2-IO-2 N/A N/A
Class PT2-2B (2) N/A N/A N/A
Class PT2-3A (1) Class PT2-IO-3 N/A N/A
Class PT2-3B (2) N/A N/A N/A
Class PT2-4A (1) Class PT2-IO-4 N/A N/A
Class PT2-4B (2) N/A N/A N/A
Class PT2-5A (1) Class PT2-IO-5 N/A N/A
Class PT2-5B (2) N/A N/A N/A
Class PT2-6A (1) Class PT2-IO-6 N/A N/A
Class PT2-6B (2) N/A N/A N/A
Class PT2-7A (1) Class PT2-IO-7 N/A N/A
Class PT2-7B (2) N/A N/A N/A
Class PT2-8A (1) Class PT2-IO-8 N/A N/A
Class PT2-8B (2) N/A N/A N/A
Class PT2-9A (1) Class PT2-IO-9 N/A N/A
Class PT2-9B (2) N/A N/A N/A
Class PT2-10A (1) Class PT2-IO-10 N/A N/A
Class PT2-10B (2) N/A N/A N/A
Class PT2-11A (1) Class PT2-IO-11 N/A N/A
Class PT2-11B (2) N/A N/A N/A
Class PT2-12A (1) Class PT2-IO-12 N/A N/A
Class PT2-12B (2) N/A N/A N/A
Class PT2-13A (1) Class PT2-IO-13 N/A N/A
Class PT2-13B (2) N/A N/A N/A
Class PT2-14A (1) Class PT2-IO-14 N/A N/A
Class PT2-14B (2) N/A N/A N/A
Class PT2-15A (1) Class PT2-IO-15 N/A N/A
Class PT2-15B (2) N/A N/A N/A
Class PT2-16A (1) Class PT2-IO-16 N/A N/A
Class PT2-16B (2) N/A N/A N/A
Class PT2-17A (1) Class PT2-IO-17 N/A N/A
Class PT2-17B (2) N/A N/A N/A
Class PT2-18A (1) Class PT2-IO-18 N/A N/A
Class PT2-18B (2) N/A N/A N/A
Class PT2-19A (1) Class PT2-IO-19 N/A N/A
Class PT2-19B (2) N/A N/A N/A
Class PT2-20A (1) Class PT2-IO-20 N/A N/A
Class PT2-20B (2) N/A N/A N/A
Class PT2-21A (1) Class PT2-IO-21 N/A N/A
Class PT2-21B (2) N/A N/A N/A
Class PT2-22A (1) Class PT2-IO-22 N/A N/A
Class PT2-22B (2) N/A N/A N/A
Class PT2-23A (1) Class PT2-IO-23 N/A N/A
Class PT2-23B (2) N/A N/A N/A
Class PT2-24A (1) Class PT2-IO-24 N/A N/A
Class PT2-24B (2) N/A N/A N/A
Class PT2-25A (1) Class PT2-IO-25 N/A N/A
Class PT2-25B (2) N/A N/A N/A
Class PT2-26A (1) Class PT2-IO-26 N/A N/A
Class PT2-26B (2) N/A N/A N/A
Class PT2-27A (1) Class PT2-IO-27 N/A N/A
Class PT2-27B (2) N/A N/A N/A
Class PT2-28A (1) Class PT2-IO-28 N/A N/A
Class PT2-28B (2) N/A N/A N/A
Class PT2-29A (1) Class PT2-IO-29 N/A N/A
Class PT2-29B (2) N/A N/A N/A
Class PT2-30A (1) Class PT2-IO-30 N/A N/A
Class PT2-30B (2) N/A N/A N/A
Class PT2-31A (1) Class PT2-IO-31 N/A N/A
Class PT2-31B (2) N/A N/A N/A
Class PT2-32A (1) Class PT2-IO-32 N/A N/A
Class PT2-32B (2) N/A N/A N/A
Class PT2-33A (1) Class PT2-IO-33 N/A N/A
Class PT2-33B (2) N/A N/A N/A
Class PT2-34A (1) Class PT2-IO-34 N/A N/A
Class PT2-34B (2) N/A N/A N/A
Class PT2-35A (1) Class PT2-IO-35 N/A N/A
Class PT2-35B (2) N/A N/A N/A
Class PT2-36A (1) Class PT2-IO-36 N/A N/A
Class PT2-36B (2) N/A N/A N/A
Class PT2-37A (1) Class PT2-IO-37 N/A N/A
Class PT2-37B (2) N/A N/A N/A
Class PT2-38A (1) Class PT2-IO-38 N/A N/A
Class PT2-38B (2) N/A N/A N/A
Class PT2-39A (1) Class PT2-IO-39 N/A N/A
Class PT2-39B (2) N/A N/A N/A
Class PT2-40A (1) Class PT2-IO-40 N/A N/A
Class PT2-40B (2) N/A N/A N/A
Class PT2-41A (1) Class PT2-IO-41 N/A N/A
Class PT2-41B (2) N/A N/A N/A
Class PT2-42A (1) Class PT2-IO-42 N/A N/A
Class PT2-42B (2) N/A N/A N/A
Class PT2-43A (1) Class PT2-IO-43 N/A N/A
Class PT2-43B (2) N/A N/A N/A
Class PT2-44A (1) Class PT2-IO-44 N/A N/A
Class PT2-44B (2) N/A N/A N/A
Class PT2-45A (1) Class PT2-IO-45 N/A N/A
Class PT2-45B (2) N/A N/A N/A
Class PT2-46A (1) Class PT2-IO-46 N/A N/A
Class PT2-46B (2) N/A N/A N/A
Class PT2-47A (1) Class PT2-IO-47 N/A N/A
Class PT2-47B (2) N/A N/A N/A
Class PT2-48A (1) Class PT2-IO-48 N/A N/A
Class PT2-48B (2) N/A N/A N/A
Class PT2-49A (1) Class PT2-IO-49 N/A N/A
Class PT2-49B (2) N/A N/A N/A
Class PT2-50A (1) Class PT2-IO-50 N/A N/A
Class PT2-50B (2) N/A N/A N/A
Class PT2-51A (1) Class PT2-IO-51 N/A N/A
Class PT2-51B (2) N/A N/A N/A
Class PT2-52A (1) Class PT2-IO-52 N/A N/A
Class PT2-52B (2) N/A N/A N/A
Class PT2-53A (1) Class PT2-IO-53 N/A N/A
Class PT2-53B (2) N/A N/A N/A
Class PT2-54A (1) Class PT2-IO-54 N/A N/A
Class PT2-54B (2) N/A N/A N/A
Class PT2-55A (1) Class PT2-IO-55 N/A N/A
Class PT2-55B (2) N/A N/A N/A
Class PT2-56A (1) Class PT2-IO-56 N/A N/A
Class PT2-56B (2) N/A N/A N/A
Class PT2-57A (1) Class PT2-IO-57 N/A N/A
Class PT2-57B (2) N/A N/A N/A
Class PT2-58A (1) Class PT2-IO-58 N/A N/A
Class PT2-58B (2) N/A N/A N/A
Class PT2-59A (1) Class PT2-IO-59 N/A N/A
Class PT2-59B (2) N/A N/A N/A
Class PT2-IO-1 (3) (3) N/A Class PT1-1A December 2006
Class PT2-IO-2 (3) (3) N/A Class PT1-2A October 2006
Class PT2-IO-3 (3) (3) N/A Class PT1-3A November 2006
Class PT2-IO-4 (3) (3) N/A Class PT1-4A December 2006
Class PT2-IO-5 (3) (3) N/A Class PT1-5A January 2007
Class PT2-IO-6 (3) (3) N/A Class PT1-6A February 2007
Class PT2-IO-7 (3) (3) N/A Class PT1-7A March 2007
Class PT2-IO-8 (3) (3) N/A Class PT1-8A April 2007
Class PT2-IO-9 (3) (3) N/A Class PT1-9A May 2007
Class PT2-IO-10 (3) (3) N/A Class PT1-10A June 2007
Class PT2-IO-11 (3) (3) N/A Class PT1-11A July 2007
Class PT2-IO-12 (3) (3) N/A Class PT1-12A November 2007
Class PT2-IO-13 (3) (3) N/A Class PT1-13A December 2007
Class PT2-IO-14 (3) (3) N/A Class PT1-14A October 2007
Class PT2-IO-15 (3) (3) N/A Class PT1-15A November 2007
Class PT2-IO-16 (3) (3) N/A Class PT1-16A December 2007
Class PT2-IO-17 (3) (3) N/A Class PT1-17A January 2008
Class PT2-IO-18 (3) (3) N/A Class PT1-18A February 2008
Class PT2-IO-19 (3) (3) N/A Class PT1-19A March 2008
Class PT2-IO-20 (3) (3) N/A Class PT1-20A April 2008
Class PT2-IO-21 (3) (3) N/A Class PT1-21A May 2008
Class PT2-IO-22 (3) (3) N/A Class PT1-22A June 2008
Class PT2-IO-23 (3) (3) N/A Class PT1-23A July 2008
Class PT2-IO-24 (3) (3) N/A Class PT1-24A November 2008
Class PT2-IO-25 (3) (3) N/A Class PT1-25A December 2008
Class PT2-IO-26 (3) (3) N/A Class PT1-26A October 2008
Class PT2-IO-27 (3) (3) N/A Class PT1-27A November 2008
Class PT2-IO-28 (3) (3) N/A Class PT1-28A December 2008
Class PT2-IO-29 (3) (3) N/A Class PT1-29A January 2009
Class PT2-IO-30 (3) (3) N/A Class PT1-30A February 2009
Class PT2-IO-31 (3) (3) N/A Class PT1-31A March 2009
Class PT2-IO-32 (3) (3) N/A Class PT1-32A April 2009
Class PT2-IO-33 (3) (3) N/A Class PT1-33A May 2009
Class PT2-IO-34 (3) (3) N/A Class PT1-34A June 2009
Class PT2-IO-35 (3) (3) N/A Class PT1-35A July 2009
Class PT2-IO-36 (3) (3) N/A Class PT1-36A November 2009
Class PT2-IO-37 (3) (3) N/A Class PT1-37A December 2009
Class PT2-IO-38 (3) (3) N/A Class PT1-38A October 2009
Class PT2-IO-39 (3) (3) N/A Class PT1-39A November 2009
Class PT2-IO-40 (3) (3) N/A Class PT1-40A December 2009
Class PT2-IO-41 (3) (3) N/A Class PT1-41A January 2010
Class PT2-IO-42 (3) (3) N/A Class PT1-42A February 2010
Class PT2-IO-43 (3) (3) N/A Class PT1-43A March 2010
Class PT2-IO-44 (3) (3) N/A Class PT1-44A April 2010
Class PT2-IO-45 (3) (3) N/A Class PT1-45A May 2010
Class PT2-IO-46 (3) (3) N/A Class PT1-46A June 2010
Class PT2-IO-47 (3) (3) N/A Class PT1-47A July 2010
Class PT2-IO-48 (3) (3) N/A Class PT1-48A November 2010
Class PT2-IO-49 (3) (3) N/A Class PT1-49A December 2010
Class PT2-IO-50 (3) (3) N/A Class PT1-50A October 2010
Class PT2-IO-51 (3) (3) N/A Class PT1-51A November 2010
Class PT2-IO-52 (3) (3) N/A Class PT1-52A December 2010
Class PT2-IO-53 (3) (3) N/A Class PT1-53A January 2011
Class PT2-IO-54 (3) (3) N/A Class PT1-54A February 2011
Class PT2-IO-55 (3) (3) N/A Class PT1-55A March 2011
Class PT2-IO-56 (3) (3) N/A Class PT1-56A April 2011
Class PT2-IO-57 (3) (3) N/A Class PT1-57A May 2011
Class PT2-IO-58 (3) (3) N/A Class PT1-58A June 2011
Class PT2-IO-59 (3) (3) N/A Class PT1-59A July 2011
Class PT2-R (4) (4) N/A N/A N/A
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling Tier REMIC-1 Interest Rates on the Pooling Tier
REMIC-1 Regular Interests and having an "A" in their class designation,
provided that, on each Distribution Date on which interest is
distributable on the Corresponding Pooling Tier REMIC-2 IO Interest, this
Pooling Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate equal to Swap LIBOR subject to a maximum rate equal to the weighted
average of the Pooling Tier REMIC-1 Interest Rates on the Pooling Tier
REMIC-1 Regular Interests and having an "A" in their class designation.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling Tier REMIC-1 Interest Rates on the Pooling Tier
REMIC-1 Regular Interests and having a "B" in their class designation.
(3) Each Pooling Tier REMIC-2 IO Interest is an interest-only interest and
does not have a principal balance but has a notional balance ("Pooling
Tier REMIC-2 IO Notional Balance") equal to the Pooling Tier REMIC-1
Principal Amount of the Corresponding Pooling Tier REMIC-1 Regular
Interest. From the Closing Date through and including the Corresponding
Scheduled Crossover Distribution Date, each Pooling Tier REMIC-2 IO
Interest shall be entitled to receive interest that accrues on the
Corresponding Pooling Tier REMIC-1 Regular Interest at a rate equal to the
excess, if any, of (i) the Pooling Tier REMIC-1 Interest Rate for the
Corresponding Pooling Tier REMIC-1 Regular Interest over (ii) Swap LIBOR.
After the related Corresponding Scheduled Crossover Distribution Date, the
Pooling Tier REMIC-2 IO Interest shall not accrue interest.
(4) The Class PT2-R Interest shall not have a principal balance and shall not
bear interest.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling Tier REMIC-2 Regular Interests at the Pooling Tier REMIC-2 Interest
Rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Mortgage Loans shall be allocated to
the then outstanding Pooling Tier REMIC-2 Regular Interests (other than the
Pooling Tier REMIC-2 IO Interests) with the lowest numerical denomination until
the Pooling Tier REMIC-2 Principal Amount of such interest or interests, as the
case may be, is reduced to zero, provided that, for Pooling Tier REMIC-2 Regular
Interests Mortgage Loans with the same numerical denomination, such Realized
Losses, Subsequent Recoveries and payments of principal shall be allocated pro
rata between such Pooling Tier REMIC-2 Regular Interests.
Lower Tier REMIC
The Lower Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower Tier REMIC and
shall be represented by the Class R Certificates.
Corresponding
Lower Tier Upper Tier
Lower Tier REMIC REMIC Initial Lower Tier REMIC Regular
Class Designation Interest Rate REMIC Principal Amount Interest
------------------- -------------- ----------------------------- ---------------
Class LT-A-1 (1) 1/2 Corresponding Upper Tier A-1
REMIC Regular Interest
initial Class Principal
Balance
Class LT-A-2 (1) 1/2 Corresponding Upper Tier A-2
REMIC Regular Interest
initial Class Principal
Balance
Class LT-M-1 (1) 1/2 Corresponding Upper Tier M-1
REMIC Regular Interest
initial Class Principal
Balance
Class LT-M-2 (1) 1/2 Corresponding Upper Tier M-2
REMIC Regular Interest
initial Class Principal
Balance
Class LT-M-3 (1) 1/2 Corresponding Upper Tier M-3
REMIC Regular Interest
initial Class Principal
Balance
Class LT-M-4 (1) 1/2 Corresponding Upper Tier M-4
REMIC Regular Interest
initial Class Principal
Balance
Class LT-M-5 (1) 1/2 Corresponding Upper Tier M-5
REMIC Regular Interest
initial Class Principal
Balance
Class LT-M-6 (1) 1/2 Corresponding Upper Tier M-6
REMIC Regular Interest
initial Class Principal
Balance
Class LT-M-7 (1) 1/2 Corresponding Upper Tier M-7
REMIC Regular Interest
initial Class Principal
Balance
Class LT-M-8 (1) 1/2 Corresponding Upper Tier M-8
REMIC Regular Interest
initial Class Principal
Balance
Class LT-Accrual (1) 1/2 Pool Stated Principal N/A
Balance plus 1/2 Subordinated
Amount
Class LT-IO (2) (2) N/A
Class LT-R (3) (3) N/A
-------------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the Lower Tier REMIC Net
WAC Rate.
(2) This Lower Tier Regular Interest is an interest-only interest and does not
have a Lower Tier REMIC Principal Amount. On each Distribution Date, this
Lower Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling Tier REMIC-2 IO Interests.
(3) The Class LT-R Interest is the sole class of residual interest in the
Lower Tier REMIC and it does not have a principal amount or an interest
rate.
Each Lower Tier REMIC Regular Interest is hereby designated as a
regular interest in the Lower Tier REMIC. The Class LT-A-1, Class LT-A-2, Class
LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-5, Class LT-M-6, Class LT-M-7 and
Class LT-M-8 Interests are hereby designated the LT Accretion Directed Classes
(the "LT Accretion Directed Classes").
On each Distribution Date, 50% of the increase in the Subordinated
Amount shall be payable as a reduction of the Lower Tier REMIC Principal Amount
of the LT Accretion Directed Classes (each such Class will be reduced by an
amount equal to 50% of any increase in the Subordinated Amount that is
attributable to a reduction in the Class Certificate Balance of its
Corresponding Class) and shall be accrued and added to the Lower Tier REMIC
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower Tier REMIC Principal Amount of the Class LT-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Subordinated Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Subordinated Amount for purposes of determining the
amount of interest accrual on the Class LT-Accrual Interest payable as principal
on the LT-Accretion Directed Classes on the next Distribution Date pursuant to
the first sentence of this paragraph. All payments of scheduled principal and
prepayments of principal generated by the Mortgage Loans and all Subsequent
Recoveries allocable to principal shall be allocated (i) 50% to the Class
LT-Accrual Interest and (ii) 50% to the LT Accretion Directed Classes (such
principal payments and Subsequent Recoveries shall be allocated among such LT
Accretion Directed Classes in an amount equal to 50% of the principal amounts
and Subsequent Recoveries allocated to their respective Corresponding Classes),
until paid in full. Notwithstanding the above, principal payments allocated to
the Class CE Interest that result in the reduction in the Subordinated Amount
shall be allocated to the Class LT-Accrual Interest (until paid in full).
Reductions to Lower Tier REMIC Principal Amounts as a result of
Realized Losses and increases in Lower Tier REMIC Principal Amounts as a result
of Subsequent Recoveries shall be applied so that after all distributions have
been made on each Distribution Date (i) the Lower Tier REMIC Principal Amount of
each LT Accretion Directed Class is equal to 50% of the Class Certificate
Balance of its Corresponding Class and (ii) the Class LT-Accrual Interest is
equal to 50% of the aggregate Stated Principal Balance of the Mortgage Loans
plus 50% of the Subordinated Amount. Any increase in the Class Certificate
Balance of a Class of LIBOR Certificates as a result of a Subsequent Recovery
shall increase the Lower Tier Principal Amount of the Corresponding Class of
Lower Tier Regular Interest by 50% of such increase, and the remaining 50% of
such increase shall increase the Lower-Tier Principal Amount of the Class
LT-Accrual Interest.
Upper Tier REMIC
The Upper Tier REMIC shall issue the following classes of Upper Tier
REMIC Regular Interests and each such interest, other than the Class UT-R
Interest, is hereby designated as a regular interest in the Upper Tier REMIC.
The Class UT-R Interest is hereby designated as the sole class of residual
interests in the Upper Tier REMIC and shall be represented by the Class R-II
Certificates.
Initial Upper Corresponding
Upper Tier REMIC Upper Tier REMIC Tier REMIC Class of
Class Designation Interest Rate Principal Amount Certificates
--------------------- ------------------ ------------------ -----------------
Class A-1 (1) $1,031,194,000 Class A-1
Class A-2 (1) $ 114,577,000 Class A-2
Class M-1 (1) $ 21,468,000 Class M-1
Class M-2 (1) $ 11,654,000 Class M-2
Class M-3 (1) $ 8,587,000 Class M-3
Class M-4 (1) $ 6,134,000 Class M-4
Class M-5 (1) $ 5,520,000 Class M-5
Class M-6 (1) $ 4,294,000 Class M-6
Class M-7 (1) $ 4,294,000 Class M-7
Class M-8 (1) $ 9,813,000 Class M-8
Class IO (2) (2)
Class CE (3) (3) Class CE (3)
Class UT-R (4) (4) Class R-II
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the WAC Cap) for the Corresponding Class of
Certificates and (ii) the Upper Tier REMIC Net WAC Rate.
(2) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest. This interest shall be beneficially owned by the holders of the
Class CE Certificates and shall be held as an asset of the Supplemental
Interest Account.
(3) The Class CE Interest has an initial principal balance of $9,200,521 but
it will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class CE
Interest shall have a notional principal balance equal to the aggregate of
the Lower Tier Principal Amounts of the Lower Tier REMIC Regular Interests
(other than the Class LT-IO Interest) as of the first day of the related
Interest Accrual Period. With respect to any Interest Accrual Period, the
Class CE Interest shall bear interest at a rate equal to the excess, if
any, of the Lower Tier REMIC Net WAC Rate over the product of (i) 2 and
(ii) the weighted average Lower Tier REMIC Interest Rate of the Lower Tier
REMIC Regular Interests (other than Class LT-IO Interest), where the Lower
Tier REMIC Interest Rate on the Class LT-Accrual Interest is subject to a
cap equal to zero and each LT-Accretion Directed Class is subject to a cap
equal to the Upper Tier Interest Rate on its Corresponding Class of Upper
Tier Regular Interest. With respect to any Distribution Date, interest
that so accrues on the notional principal balance of the Class CE Interest
shall be deferred in an amount equal to any increase in the Subordinated
Amount on such Distribution Date. Such deferred interest shall not itself
bear interest.
(4) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper Tier REMIC at the rates shown above,
provided that the Class IO Interest shall be entitled to receive interest before
any other interest in the Upper Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper Tier
Interests until the outstanding principal balance of each such interest equals
the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Certificates
Class Pass-Through Class Certificate
Class Designation Rate Balance
-------------------- ------------------- -----------------
Class A-1 (5) (1) $1,031,194,000
Class A-2 (5) (1) $ 114,577,000
Class M-1 (5) (2) $ 21,468,000
Class M-2 (5) (2) $ 11,654,000
Class M-3 (5) (2) $ 8,587,000
Class M-4 (5) (2) $ 6,134,000
Class M-5 (5) (2) $ 5,520,000
Class M-6 (5) (2) $ 4,294,000
Class M-7 (5) (2) $ 4,294,000
Class M-8 (5) (2) $ 9,813,000
Class CE (3) (3)
Class R (4) (4)
------------
(1) The Class A-1 and Class A-2 Certificates will bear interest during each
Interest Accrual Period at a per annum rate equal to the lesser of (i)
LIBOR plus the applicable Pass-Through Margin and (ii) the WAC Cap.
(2) The Class M-1, Class M-2, Class M-3, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7 and Class M-8 Certificates will bear interest during
each Interest Accrual Period at a per annum rate equal to the lesser of
(i) LIBOR plus the applicable Pass-Through Margin and (ii) the WAC Cap.
(3) The Class CE Certificates will represent beneficial ownership of the Class
CE Interest, the Class IO Interest, the right to receive Class IO
Shortfalls, amounts in the Supplemental Interest Account, subject to the
obligation to pay Net Swap Payments to the Swap Provider and Upper Tier
Carry Forward Amounts to the Offered Certificates and, without
duplication, Basis Risk Carry Forward Amounts to the Offered Certificates
and amounts in the Excess Reserve Fund Account, subject to the obligation
to make payments from the Excess Reserve Fund Account in respect of Basis
Risk Carry Forward Amounts to the Offered Certificates. For federal income
tax purposes, the Securities Administrator will treat a Class CE
Certificateholder's obligation to make payments to the Offered
Certificates of Basis Risk Carry Forward Amounts from the Excess Reserve
Fund Account and the Supplemental Interest Account and, without
duplication, Upper Tier Carry Forward Amounts from the Supplemental
Interest Account as payments made pursuant to a notional principal
contract between the Class CE Certificateholders and the holder and the
right to receive Class IO shortfalls of each Class of Offered
Certificates. Such rights of the Class CE Certificateholders and Offered
Certificateholders shall be treated as held in a portion of the Trust Fund
that is treated as a grantor trust under subpart E, Part I of subchapter J
of the Code. The Class CE Certificates do not have a Class Certificate
Balance.
(4) The Class R Certificates do not have a principal balance or an interest
rate. The Class R Certificates represent the residual interest in each
Trust REMIC.
(5) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper Tier REMIC Regular Interest but also the
right to receive payments from the Excess Reserve Fund Account and
Supplemental Interest Account in respect of any Basis Risk Carry Forward
Amounts and, without duplication, from the Supplemental Interest Account
in respect of Upper Tier Carry Forward Amounts. Each of these Certificates
will also be subject to the obligation to pay Class IO Shortfalls as
described in Section 8.16. For federal income tax purposes, any amount
distributed on the Offered Certificates on any such Distribution Date in
excess of the amount distributable on their Corresponding Class of Upper
Tier Regular Interest on such Distribution Date shall be treated as having
been paid from the Excess Reserve Fund Account or the Supplemental
Interest Account, as applicable, and any amount distributable on such
Corresponding Class of Upper Tier Regular Interest on such Distribution
Date in excess of the amount distributable on the Corresponding Class of
Certificates on such Distribution Date shall be treated as having been
paid to the Supplemental Interest Account, all pursuant to, and as further
provided in Section 8.16. For federal income tax purposes, the Securities
Administrator will treat an Offered Certificateholder's right to receive
payments from the Excess Reserve Fund Account and Supplemental Interest
Account as payments made pursuant to an interest rate cap contract written
by the Class CE Certificateholders.
The minimum denomination for each Class of the Offered Certificates
will be $25,000 initial Certificate Balance, with integral multiples of $1 in
excess thereof except that one Certificate in each Class may be issued in a
different amount. The minimum denomination for (a) the Class R Certificates will
be a 100% Percentage Interest in such Class and (b) the Class CE Certificates
will be a 1% Percentage Interest in such Class.
Set forth below are designations of Classes of Certificates to the categories
used herein:
Book-Entry Certificates All Classes of Certificates other
than the Physical Certificates.
Class A Certificates Class A-1 and Class A-2 Certificates.
Class M Certificates Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8
Certificates.
ERISA-Restricted Certificates The Physical Certificates and any
Certificate with a rating below the lowest
applicable permitted rating under the
Underwriters' Exemption.
Offered Certificates All Classes of Certificates other than the
Private Certificates.
Physical Certificates The Class R and Class CE Certificates.
Principal Certificates Offered Certificates.
Private Certificates The Class R and Class CE Certificates.
Rating Agencies ▇▇▇▇▇'▇ and S&P.
Regular Certificates All Classes of Certificates other than the
Class R and Class CE Certificates.
Residual Certificates The Class R Certificates.
Subordinated Certificates The Class M Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the Servicing Agreement or
Sale Agreement, as applicable. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, two months or more delinquent, each Mortgage Loan in foreclosure, each
REO Property and each Mortgage Loan for which the Mortgagor has filed for
bankruptcy.
10-K Filing Deadline: As defined in Section 8.15(c).
Account: Any of the Distribution Account, the Collection Account or
the Supplemental Interest Account. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Offered Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class' share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Additional Disclosure Notification: As defined in Section 8.15(c).
Additional Form 10-D Disclosure: As defined in Section 8.15(b).
Additional Form 10-K Disclosure: As defined in Section 8.15(c).
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Master Servicing and Trust Agreement and all
amendments or supplements hereto.
Amendment Reg AB: The Amendment Reg AB to the Master Loan Purchase
and Servicing Agreement, dated as of August 30, 2006, among the Original Loan
Seller, the Servicer and the Sponsor, a copy of which is attached hereto as
Exhibit U.
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Securities Administrator by the
Depositor.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Principal Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Assignment Agreements: The Countrywide Assignment Agreement and the
IndyMac Assignment Agreement.
Assignment of Mortgage: An executed assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans, to the extent received by the Securities Administrator (x) the
sum of (i) all scheduled installments of interest (net of the related Expense
Fees) and principal due on the Due Date on such Mortgage Loans in the related
Due Period and received by the Servicer on or prior to the related Determination
Date, together with any Monthly Advances in respect thereof; (ii) all
Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and Subsequent
Recoveries received by the Servicer during the related Prepayment Period (in
each case, net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received by the Servicer during the
related Prepayment Period together with all Compensating Interest paid by the
Servicer in connection therewith (excluding any Prepayment Premiums); (iv) all
Substitution Adjustment Amounts with respect to substitutions of Mortgage Loans
that occur on or prior to the related Determination Date; (v) all amounts
received with respect to such Distribution Date as the Repurchase Price in
respect of a Mortgage Loan repurchased on or prior to the related Determination
Date; (vi) the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 11.01; and (vii) the Closing Date Deposit
Amount ; reduced by (y) amounts in reimbursement for Advances previously made
with respect to the Mortgage Loans and other amounts as to which the Master
Servicer, the Securities Administrator, the Servicer, the Depositor or the
Trustee are entitled to be paid or reimbursed pursuant to this Agreement .
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Subordinated Amount, if any, for such
Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Principal Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Principal Certificates
is based upon the WAC Cap, the excess, if any, of (i) the Accrued Certificate
Interest Distribution Amount such Class of Certificates would otherwise be
entitled to receive on such Distribution Date had such Pass-Through Rate not
been subject to the WAC Cap, over (ii) the Accrued Certificate Interest
Distribution Amount payable on such Class of Certificates at the WAC Cap for
such Distribution Date and (B) the portion of any such excess described in
clause (A) for such Class of Certificates from all previous Distribution Dates
not previously paid, together with interest thereon at a rate equal to the
applicable Pass-Through Rate for such Class of Certificates for such
Distribution Date, without giving effect to the WAC Cap.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class CE Distributable Amount (prior to any
reduction for (x) amounts paid from the Excess Reserve Fund Account to pay any
Basis Risk Carry Forward Amount or (y) any Defaulted Swap Termination Payment).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York or California, (b) the State in which the Servicer's servicing operations
are located, or (c) the State in which any Corporate Trust Office is located,
are authorized or obligated by law or executive order to be closed, which
include Minnesota and Maryland.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Principal
Certificates, at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof minus all distributions of principal previously made with
respect thereto and reduced by any Applied Realized Loss Amounts applicable to
such Class of Certificates; provided, however, that immediately following the
Distribution Date on which a Subsequent Recovery is distributed, the Class
Certificate Balances of any Class or Classes of Certificates that have been
previously reduced by Applied Realized Loss Amounts will be increased, in order
of seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Applied Realized Loss Amounts allocated
to such Class or Classes). The Class CE and Class R Certificates have no
Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Securities Administrator is entitled to
rely conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Certification: As defined in Section 8.15(b).
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to any
Distribution Date is the excess of (a) the aggregate Class Certificate Balance
of the Class A Certificates immediately prior to such Distribution Date over (b)
the lesser of (x) 86.80% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (y) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class CE Certificates: All Certificates bearing the class
designation of "Class CE"
Class CE Distributable Amount: On any Distribution Date, the sum of
(i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class CE Interest (as set forth in the Preliminary Statement) and
not applied as an Extra Principal Distribution Amount on such Distribution Date,
plus any such accrued interest remaining undistributed from prior Distribution
Dates, plus (without duplication), (ii) as a distribution in respect of
principal, any portion of the principal balance of the Class CE Interest that is
distributable as a Subordination Reduction Amount, minus (iii) any Defaulted
Swap Termination Payment payable to the Swap Provider and any amounts paid from
the Excess Reserve Fund Account to pay Basis Risk Carry Forward Amounts.
Class CE Interest: The Upper Tier REMIC Regular Interest represented
by the Class CE Certificates as specified and described in the Preliminary
Statement and the related footnote thereto.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfalls: As defined in Section 8.16. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class CE Certificates in respect of amounts due to the
Swap Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class CE Interest (prior to
reduction for any Basis Risk Payments or Defaulted Swap Termination Payments) or
Class IO Interest on such Distribution Date, all as further provided in Section
8.16.
Class LT-R Interest: The sole class of "residual interest" in the
Lower Tier REMIC evidenced by the Class R Certificates.
Class M Certificates: Collectively, the Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates.
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date) and (b) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (a) 90.30%
of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (b) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (b) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date) and (c) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (a) 92.20% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date and (b) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date over
the Overcollateralization Floor.
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (b) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (c) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date) and (d) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) 93.60% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (b) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (b) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (c) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (d) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date) and (e) the Class Certificate Balance of the Class M-4
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 94.60% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (b) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (b) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (c) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (d) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (e) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount for such Distribution Date) and (f) the Class
Certificate Balance of the Class M-5 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) 95.50% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (b) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (b) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (c) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (d) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (e) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount for such Distribution Date), (f) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount for such
Distribution Date) and (g) the Class Certificate Balance of the Class M-6
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 96.20% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (b) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-7 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (b) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (c) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (d) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (e) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount for such Distribution Date), (f) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount for such
Distribution Date), (g) the Class Certificate Balance of the Class M-6
Certificates (after taking into account the distribution of the Class M-6
Principal Distribution Amount for such Distribution Date) and (h) the Class
Certificate Balance of the Class M-7 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) 96.90% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (b) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-8 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (b) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (c) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (d) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (e) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount for such Distribution Date), (f) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount for such
Distribution Date), (g) the Class Certificate Balance of the Class M-6
Certificates (after taking into account the distribution of the Class M-6
Principal Distribution Amount for such Distribution Date), (h) the Class
Certificate Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount for such
Distribution Date) and (i) the Class Certificate Balance of the Class M-8
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 98.50% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (b) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class PT1-R Interest: The sole class of "residual interest" in
Pooling Tier REMIC-1 as described in the Preliminary Statement and the related
footnote thereto.
Class PT2-R Interest: The sole class of "residual interest" in
Pooling Tier REMIC-2 as described in the Preliminary Statement and the related
footnote thereto.
Class R Certificates: All Certificates bearing the class designation
of "Class R".
Class UT-R Interest: The sole class of "residual interest" in the
Upper Tier REMIC evidenced by the Class R Certificate.
Closing Date: November 30, 2006.
Closing Date Deposit Amount: $465,666.92 (all of which is allocable
to principal) deposited by the Depositor into the Distribution Account on the
Closing Date.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The "Custodial Account" as defined in the
Servicing Agreement.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for such Distribution Date, with
respect to voluntary Principal Prepayments by the Mortgagor (excluding any
payments made upon liquidation of the Mortgage Loan), and (b) in the case of
Countrywide Servicing only, one half of the lesser of (1) the Servicing Fee
payable to Countrywide Servicing for such Distribution Date and (2) the
Servicing Fee actually received by Countrywide Servicing for such Distribution
Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator: (i) for certificate transfer purposes, the office of the
Securities Administrator at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services, BCAP 2006-AA2, (ii) for
all other purposes, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Client Manager BCAP LLC 2006-AA2, facsimile no. (▇▇) ▇▇▇-▇▇▇▇, and
which is the address to which notices to and correspondence with the Trustee
should be directed. or (iii) at such other address as the Securities
Administrator may designate from time to time by notice to the
Certificateholders. With respect to the Trustee, the designated office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and its telephone number is (▇▇▇) ▇▇▇-▇▇▇▇.
Corresponding Class: The class of interests in the Lower Tier REMIC
or Upper Tier REMIC created under this Agreement that corresponds to the Class
of interests in the other such REMIC, as applicable, or to a Class of
Certificates in the manner set out below:
Corresponding Corresponding
Lower Tier REMIC Upper Tier REMIC Corresponding
Regular Interest Regular Interest Class of Certificates
-------------------------- -------------------------- --------------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-M-7 Class M-7 Class M-7
Class LT-M-8 Class M-8 Class M-8
Corresponding Pooling Tier REMIC-1 Regular Interest: As described in
the Preliminary Statement.
Corresponding Pooling Tier REMIC-2 IO Interest: As described in the
Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling Tier REMIC-2 IO Interest.
Countrywide Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of the Closing Date, among Countrywide Home
Loans Servicing LP, Countrywide Home Loans Inc., Master Servicer and Securities
Administrator, the Sponsor and the Depositor, relating to the Original Loan
Seller Mortgage Loans, a copy of which is attached hereto as Exhibit N.
Countrywide Home Loans: Countrywide Home Loans, Inc., a New York
corporation, and its successors in interest.
Countrywide Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated August 30, 2006, between the Purchaser and the Original Loan
Seller, as amended by Amendment Reg AB, a copy of which is attached hereto as
Exhibit L.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors in interest.
Countrywide Servicing Agreement: The Servicing Agreement, dated
August 30, 2006, between the Purchaser and the Servicer, as amended by Amendment
Reg AB, a copy of which is attached hereto as Exhibit M.
Cumulative Loss Trigger Event: If, with respect to any Distribution
Date, the quotient (expressed as a percentage) of (x) the aggregate amount of
Realized Losses incurred since the Cut-off Date through the last day of the
related Due Period, divided by (y) the Cut-off Date Pool Principal Balance,
exceeds the applicable Cumulative Loss Percentages.
Cumulative Loss Percentages: With respect to any Distribution Date,
the percentages set forth below:
Distribution Date Occurring
In Cumulative Loss Percentage
---------------------------- ---------------------------------------------------
December 2008 through 0.20% for the first month, plus an additional
November 2009 1/12th of 0.25% for each month thereafter
December 2009 through 0.45% for the first month, plus an additional
November 2010 1/12th of 0.30% for each month thereafter
December 2010 through 0.75% for the first month, plus an additional
November 2011 1/12th of 0.35% for each month thereafter
December 2011 through 1.10% for the first month, plus an additional
November 2012 1/12th of 0.20% for each month thereafter
December 2012 and thereafter 1.30%
Custodial File: With respect to each Mortgage Loan, all Mortgage
Loan Documents which are delivered to the Custodian or which at any time comes
into the possession of the Custodian.
Custodian: ▇▇▇▇▇ Fargo Bank, National Association.
Cut-off Date: November 1, 2006.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-off
Date Principal balances of all Mortgage Loans, plus the portion of the Closing
Date Deposit Amount allocable to principal.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an "Event of Default" (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement )) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by the Original Loan Seller, the Purchaser or the Depositor in
accordance with the terms of the Sale Agreement, the Assignment Agreement or
this Agreement, as applicable, or which is, in the case of a substitution
pursuant to the Sale Agreement or the Assignment Agreement, replaced or to be
replaced with a substitute mortgage loan.
Delinquency Trigger Event: With respect to any Distribution Date,
the circumstances in which the quotient (expressed as a percentage) of (x) the
rolling three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (y) the aggregate unpaid principal balance
of the Mortgage Loans, as of the last day of the related Due Period, equals or
exceeds 40.00% of the prior period's Senior Enhancement Percentage.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: BCAP LLC, a Delaware limited liability company, and its
successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "P-1" by Moody's and "A-1" by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Remittance Date, the
Business Day immediately preceding such Remittance Date.
Disqualified Non-U.S. Person: With respect to a Residual
Certificate, (i) any Non-U.S. Person or agent thereof other than a Non-U.S.
Person that holds the Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Securities Administrator with an effective IRS Form W-8ECI, or (ii) any
domestic entity classified as a partnership under the Code if any of its direct
or indirect partners (other than through a U.S. corporation) are (or are
permitted to be under the applicable partnership agreement) Disqualified
Non-U.S. Persons, unless such Person described in (i) or (ii) above has
delivered to both the transferor and the Securities Administrator an opinion of
a nationally recognized tax counsel to the effect that the transfer of the
Residual Certificate to it is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of the
Residual Certificate will not be disregarded for federal income tax purposes.
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.01(b) in the
name of the Securities Administrator for the benefit of the Certificateholders
and designated "▇▇▇▇▇ Fargo Bank, National Association in trust for registered
holders of BCAP LLC Trust 2006-AA2 Mortgage Pass-Through Certificates, Series
2006-AA2". Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Distribution Date: The 25th day of each month or, if such day is not
a Business Day, the immediately succeeding Business Day, commencing in December
2006.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
that Distribution Date occurs and ending on the first day of the calendar month
in which that Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 11.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account acceptable to
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Securities Administrator.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated at least "A-1+" by Standard &
Poor's if the amounts on deposit are to be held in the account for no more than
365 days (or at least "A-2" by Standard & Poor's if the amounts on deposit are
to be held in the account for no more than 30 days), or the long-term unsecured
debt obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations, or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Securities Administrator) (in each case to the extent they are designated
as Rating Agencies in the Preliminary Statement).
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in the Servicing Agreement.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Section 3.01(a) in
the name of the Trustee for the benefit of the Class CE Certificateholders and
designated "▇▇▇▇▇ Fargo Bank, National Association in trust for registered
holders of BCAP LLC Trust 2006-AA2, Mortgage Pass-Through Certificates, Series
2006-AA2". Funds in the Excess Reserve Fund Account shall be held in trust for
the Regular Certificateholders for the uses and purposes set forth in this
Agreement. Amounts on deposit in the Excess Reserve Fund Account shall not be
invested.
Excess Subordinated Amount: With respect to any Distribution Date,
the excess, if any, of (a) the Subordinated Amount for such Distribution Date
over (b) the Specified Subordinated Amount for such Distribution Date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and any lender paid mortgage insurance
premium rate applicable to such Mortgage Loan.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Fair Market Value Excess: As defined in Section 11.01.
▇▇▇▇▇▇ Mae: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
January 2037.
Fitch: Fitch, Inc.
Form 8-K Disclosure Information: As defined in Section 8.15(g).
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
Gross Margin: The fixed percentage amount set forth in the related
Mortgage Note to be added to the applicable Index to determine the Mortgage
Rate.
Index: As to each Mortgage Loan, the index from time to time in
effect for the adjustment of the Mortgage Rate set forth as such in the related
Mortgage Note.
IndyMac: IndyMac Bank, F.S.B.
IndyMac Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of the Closing Date, among IndyMac Bank F.S.B.,
the Sponsor and the Depositor, relating to the Mortgage Loans purchased by the
Sponsor from IndyMac, a copy of which is attached hereto as Exhibit N.
IndyMac Sale Agreement: The Mortgage Loan Purchase Agreement, dated
October 1, 2006, between the Purchaser and IndyMac, a copy of which is attached
hereto as Exhibit L.
IndyMac Servicing Agreement: The Servicing Agreement, dated October
1, 2006, between the Purchaser and the Servicer, a copy of which is attached
hereto as Exhibit M.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of Principal
Certificates and the Corresponding Class of Lower Tier REMIC Regular Interests
and any Distribution Date, the period commencing on the Distribution Date
occurring in the month preceding the month in which the current Distribution
Date occurs and ending on the day immediately preceding the current Distribution
Date (or, in the case of the first Distribution Date, the period from and
including the Closing Date to but excluding such first Distribution Date). With
respect to the Class LT-Accrual Interest, Class LT-IO Interest and each Pooling
Tier REMIC-1 Regular Interest and Pooling Tier REMIC-2 Regular Interest and any
Distribution Date, the calendar month preceding such Distribution Date. For
purposes of computing interest accruals on each Class of Principal Certificates,
each Interest Accrual Period has the actual number of days in such month and
each year is assumed to have 360 days.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of November [__], 2006 between the Swap Provider and the Securities
Administrator, a copy of which is attached hereto as Exhibit O.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, that portion of Available Funds attributable to interest
received or advanced with respect to the Mortgage Loans, net of the fees payable
to the Servicer, and net of any Net Swap Payments and Swap Termination Payments,
other than Defaulted Swap Termination Payments, payable to the Swap Provider
with respect to such Distribution Date.
Investment Account: As defined in Section 3.02(a).
LIBOR: With respect to any Interest Accrual Period for the Offered
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar deposits of
leading European banks.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the Offered Certificates, the second London Business Day preceding
the commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
Principal Prepayment Period preceding the month of such Distribution Date and as
to which the Servicer has certified that it has received all amounts it expects
to receive in connection with the liquidation of such Mortgage Loan including
the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower Tier Principal Amount: As described in the Preliminary
Statement.
Lower Tier Regular Interest: Each of the Class LT-A-1, Class LT-A-2,
Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5, Class
LT-M-6, Class LT-M-7, Class LT-M-8, Class LT-IO and Class LT-Accrual Interests,
as described in the Preliminary Statement.
Lower Tier REMIC: As described in the Preliminary Statement.
Lower Tier REMIC Interest Rate: As described in the Preliminary
Statement.
Lower Tier REMIC Principal Amount: The principal balance of each
Lower Tier REMIC Regular Interest, determined as set forth in the Preliminary
Statement. The Lower Tier REMIC Principal Amount shall be computed to at least
eight (8) decimal places.
Lower Tier REMIC Net WAC Rate: A per annum variable rate equal to
the weighted average of the Pooling Tier REMIC-2 Interest Rates of the Pooling
Tier REMIC-2 Regular Interests (other than the Pooling Tier REMIC-2 IO
Interests).
Master Servicer: ▇▇▇▇▇ Fargo, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the Servicing Agreement.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. and its successors in
interest. If ▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 12.05(b) the address for notices to Moody's
shall be ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Master Servicer, the
Securities Administrator, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note, including all riders
thereto.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
the Sale Agreement and the Servicing Agreement, each Mortgage Loan originally
sold and subject to the Sale Agreement being identified on the Mortgage Loan
Schedule, which Mortgage Loan includes without limitation the Mortgage File, the
Custodial File, the Servicing File, the Scheduled Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition proceeds, Prepayment Premiums and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Custodian and referred to on Schedule I, such schedule setting forth the
following information with respect to each Mortgage Loan as of the Cut-off Date:
(1) Original Loan Seller's Mortgage Loan number; (2) the address, city, state
and zip code of the Mortgaged Property; (3) a code indicating whether the
Mortgagor is self-employed; (4) a code indicating whether the Mortgaged Property
is owner-occupied, investment property or a second home; (5) a code indicating
whether the Mortgaged Property is a single family residence, two family
residence, three-family residence, four family residence, condominium,
manufactured housing or planned unit development; (6) the purpose of the
Mortgage Loan; (7) the type of Mortgage Loan; (8) the Mortgage Interest Rate at
origination; (9) the current Mortgage Interest Rate; (10) the name of the
Servicer; (11) the Servicing Fee Rate; (12) the current Scheduled Payment; (13)
the original term to maturity; (14) the remaining term to maturity; (15) the
principal balance of the Mortgage Loan as of the Cut-off Date after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; (16) the LTV at origination; (17) the actual principal balance of the
Mortgage Loan as of the Cut-off Date; (18) social security number of the
Mortgagor; (19) a code indicating whether the Mortgaged Property is a leasehold
estate; (20) the Due Date of the Mortgage Loan; (21) whether the Mortgage Loan
is insured by a Primary Mortgage Insurance Policy and the name of the insurer;
(22) the certificate number of the Primary Mortgage Insurance Policy; (23) the
amount of coverage of the Primary Mortgage Insurance Policy, and if it is a
lender-paid Primary Mortgage Insurance Policy, the premium rate; (24) the type
of appraisal; (25) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan; (26) documentation type (including asset and income type); (27)
first payment date; (28) the schedule of the payment delinquencies in the prior
12 months; (29) FICO score; (30) the Mortgagor's name; (31) the stated maturity
date; (32) the original principal amount of the mortgage; (33) the "pay through"
date or the date of the last payment made; and (34) the Gross Margin of the
Mortgage Loan. With respect to the Mortgage Loans in the aggregate: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne on a Mortgage Note.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date, the amount
remaining for distribution pursuant to Section 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the Compensating Interest payments made with respect
to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) payable by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement), or any amount withdrawn from the reserve account
referred to in the third full paragraph of Section 4.05 that is required under
that paragraph be treated as a Net Swap Receipt for purposes of determining the
distributions from the Supplemental Interest Account.
NIM Issuer: The entity established as the issuer of NIM Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class CE Certificates.
NIM Trustee: The trustee for the NIM Securities.
Non-Permitted Transferee: A Person other than a Permitted
Transferee.
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Servicer or any successor Servicer
including the Trustee or Master Servicer, as applicable, and inherits the
responsibility for advancing principal and interest as a result of borrower's
diligences will not or, in the case of a proposed Monthly Advance, would not be
ultimately recoverable from related late payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds on such Mortgage Loan or REO
Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer or any successor
Servicer including the Trustee or Master Servicer, as applicable, and inherits
the responsibility for advancing principal and interest as a result of
borrower's diligences will not or, in the case of a proposed Servicing Advance,
would not, be ultimately recoverable from related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 11.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Servicer or the Original
Loan Seller, and delivered to the Master Servicer, as required by the Servicing
Agreement or Sale Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer, reasonably acceptable to the Trustee or
Securities Administrator, as applicable (and/or such other Persons as may be set
forth herein); provided, that any Opinion of Counsel relating to (a)
qualification of any Trust REMIC or (b) compliance with the REMIC Provisions,
must be (unless otherwise stated in such Opinion of Counsel) an opinion of
counsel who (i) is in fact independent of the Servicer or the Trustee of the
Mortgage Loans, (ii) does not have any material direct or indirect financial
interest in the Servicer or the Trustee of the Mortgage Loans or in an Affiliate
of either and (iii) is not connected with the Servicer or Trustee of the
Mortgage Loans as an officer, employee, director or person performing similar
functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10% or less of the Cut-off Date Pool
Principal Balance.
Original Loan Sellers: Countrywide Home Loans, in its capacity as
seller under the Countrywide Sale Agreement and IndyMac, in its capacity as
Seller under the IndyMac Sale Agreement.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the
Securities Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralization Floor: An amount equal to 0.50% of the Cut-off
Date Pool Principal Balance.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Margin: With respect to each Class of Regular
Certificates, the following percentages: Class A-1, [____]%; Class A-2, [____]%;
Class M-1, [____]0%; Class M-2, [____]%; Class M-[____]0%; Class M-4, [____]%;
Class M-5, [____]%; Class M-6, [____]%; Class M-7, [____]%; and Class M-8,
[____]%. On the first Distribution Date after the Optional Termination Date, the
Pass-Through Margins shall increase to: Class A-1, [____]%; Class A-2, [____]%;
Class M-1, [____]%; Class M-2, [____]%; Class M-3, [____]%; Class M-4, [____]%;
Class M-5, [____]%; Class M-6, [____]%; Class M-7, [____]%; and Class M-8,
[____]%.
Pass-Through Rate: For each Class of Certificates and each Lower
Tier Regular Interest, the per annum rate set forth or calculated in the manner
described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Master Servicer, the Securities
Administrator, or any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original maturity
of not more than 90 days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or
a remaining maturity of more than 30 days) denominated in United
States dollars and issued by any Depository Institution and rated
F1+ by Fitch, P-1 by Moody's and A-1+ by S&P;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United States of America or any state thereof and that are rated by
each Rating Agency that rates such securities in its highest
long-term unsecured rating categories at the time of such investment
or contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date
of acquisition thereof) that is rated by each Rating Agency that
rates such securities in its highest short-term unsecured debt
rating available at the time of such investment;
(vi) units of money market funds, including money market funds
advised by the Depositor, the Master Servicer, the Securities
Administrator, or the Trustee or an Affiliate thereof, that are
rated, if rated by Moody's, at least "Aaa" by Moody's, and, if rated
by Standard & Poor's, at least "AAAm" or "AAAm-G" by Standard &
Poor's; and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or
any other obligation, security or investment, as may be acceptable
to the Rating Agencies as a permitted investment of funds backing
"Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income from a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of ▇▇▇▇▇▇▇ Mac, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pooling Tier REMIC-1: As described in the Preliminary Statement.
Pooling Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling Tier REMIC-1 Net WAC Rate: With respect to the Mortgage
Loans as of any Distribution Date, a per annum rate equal to (a) the weighted
average of the Adjusted Net Mortgage Interest Rates then in effect on the
beginning of the related Due Period on the Mortgage Loans multiplied by (b) 30
divided by the actual number of days in the related Interest Accrual Period.
Pooling Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling Tier REMIC-2: As described in the Preliminary Statement.
Pooling Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling Tier REMIC-2 IO Interest: Any of the Pooling Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was, during the related Principal
Prepayment Period, the subject of a Principal Prepayment that was applied by the
Servicer to reduce the outstanding principal balance of such Mortgage Loan on a
date preceding the Due Date in the succeeding Principal Prepayment Period, an
amount equal to the product of (a) the Mortgage Interest Rate net of the
applicable Servicing Fee Rate for such Mortgage Loan, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of
days commencing on the date on which such Principal Prepayment was applied and
ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Principal Certificates: As specified in the Preliminary Statement.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, including any Prepayment
Premium, and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: With respect to any Distribution Date,
the calendar month preceding the month in which that Distribution Date occurs.
Principal Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, the amount equal to the sum of the following amounts
(without duplication): (i) all scheduled payments of principal due on the Due
Date on such Mortgage Loans in the related Due Period and received on or prior
to the related Determination Date, together with any Monthly Advances in respect
thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and Liquidation
Proceeds allocable to principal and received during the related Principal
Prepayment Period; (iii) all Principal Prepayments allocable to principal and
received during the related Principal Prepayment Period; (iv) all amounts
received with respect to such Distribution Date representing the portion of the
purchase price allocable to principal in connection with a purchase or
repurchase of a Deleted Mortgage Loan; (v) principal portion of all amounts
received with respect to such Distribution Date as a Substitution Adjustment
Amount and received in connection with the substitution of a Mortgage Loan; (vi)
with respect to the first Distribution Date in December 2006 only, the portion
of the Closing Date Deposit Amount allocable to principal, and (vii) the
allocable portion of the proceeds received with respect to the termination of
the Trust Fund pursuant to clause (a) of Section 11.01 (to the extent such
proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated November
[__], 2006, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchaser: Barclays Bank PLC, a public limited company registered in
England and Wales, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Master Servicer,
the Securities Administrator and Trustee. References herein to a given rating or
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers. For purposes of Section 12.05(b), the addresses
for notices to each Rating Agency shall be the address specified therefor in the
definition corresponding to the name of such Rating Agency, or such other
address as either such Rating Agency may hereafter furnish to the Depositor and
the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of any amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date;
provided, however, that, for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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 (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.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, the 18th day
(or if such 18th day is not a Business Day, the first Business Day immediately
succeeding such 18th day) of the month in which such Distribution Date occurs.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement Swap Provider Payment: As defined in Section 4.06.
Reportable Event: As defined in Section 8.15(g).
Request for Release: The Request for Release submitted by the
Servicer to the Custodian, substantially in the form of Exhibit D.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect o 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.
Rule 144A Letter: As defined in Section 5.02(b).
Sale Agreements: The Countrywide Sale Agreement and the IndyMac Sale
Agreement.
Sarbanes Certification: As defined in Section 8.15(c).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Remittance Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the Subordinated
Amount (in each case after taking into account the distributions of the
Principal Distribution Amount for such Distribution Date) by (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the first day of the month
in which such Distribution Date occurs.
Senior Specified Enhancement Percentage: As of any date of
determination, 13.20%.
Servicers: Countrywide Servicing Countrywide in its capacity as
servicer under the Servicing Agreement and the related Assignment Agreement, or
any successor servicer appointed pursuant thereto, and IndyMac in its capacity
as servicer under the IndyMac Servicing Agreement and the related Assignment
Agreement, or any successor servicer appointed pursuant thereto.
Servicing Advances: As defined in the Servicing Agreement.
Servicing Agreements: The Countrywide Servicing Agreement and the
IndyMac Servicing Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit P
hereto.
Servicing Fee: As defined in the Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate for such Mortgage Loan specified on the Mortgage Loan Schedule.
Servicing File: the "Credit File" as defined in the Servicing
Agreement.
Servicing Function Participant: As defined in Section 8.14(a).
Similar Law: As defined in Section 5.02(b).
Specified Subordinated Amount: an amount equal to 0.75% of the
Cut-off Date Pool Principal Balance. When the Class Certificate Balance of each
Class of Principal Certificates has been reduced to zero, the Specified
Subordinated Amount will thereafter equal zero.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors in interest. If
Standard & Poor's is designated as a Rating Agency in the Preliminary Statement,
for purposes of Section 12.05(b) the address for notices to Standard & Poor's
shall be Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Residential Mortgage Surveillance Group - BCAP LLC Trust 2006-AA2, or
such other address as Standard & Poor's may hereafter furnish to the Master
Servicer, the Securities Administrator, the Depositor, the Servicer and the
Trustee.
Startup Day: As defined in Section 2.04.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Securities Administrator
with respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of scheduled payments of principal. For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any scheduled payments of principal received or
advanced prior to the related Remittance Date and any unscheduled principal
payments and other unscheduled principal collections received during the related
Principal Prepayment Period, and the Stated Principal Balance of any Mortgage
Loan that has prepaid in full or has become a Liquidated Mortgage Loan during
the related Prepayment Period shall be zero.
Stepdown Date: The later to occur of (i) the earlier to occur of (a)
the Distribution Date in December 2009 and (b) the Distribution Date immediately
following the Distribution Date on which the aggregate Class Certificate
Balances of the Class A Certificates have been reduced to zero and (ii) the
first Distribution Date on which the Senior Enhancement Percentage (calculated
for this purpose only after taking into account payments of principal on the
Mortgage Loans applied to reduce the Stated Principal Balance of the Mortgage
Loans for the applicable Distribution Date but prior to any applications of
Principal Distribution Amount to the Certificates on such Distribution Date) is
greater than or equal to the Senior Specified Enhancement Percentage.
Subcontractor: Any third-party or Affiliated vendor, subcontractor
or other Person utilized by the Servicer, a Subservicer, the Master Servicer or
the Securities Administrator that is not responsible for the overall servicing
(as "servicing" is commonly understood by participants in the mortgage-backed
securities market) of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans.
Subordinated Amount: As of any Distribution Date, the excess, if
any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the Class Certificate Balances of the Principal
Certificates as of such Distribution Date (after giving effect to the payment of
the Principal Remittance Amount on such Certificates on that Distribution Date).
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordination Deficiency: With respect to any Distribution Date, the
excess, if any, of (a) the Specified Subordinated Amount applicable to such
Distribution Date over (b) the Subordinated Amount applicable to such
Distribution Date.
Subordination Reduction Amount: With respect to any Distribution
Date, an amount equal to the lesser of (a) the Excess Subordinated Amount and
(b) the Net Monthly Excess Cash Flow.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Servicer under
this Agreement, with respect to some or all of the Mortgage Loans, that are
identified in Item 1122(d) of Regulation AB.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Substitution Adjustment Amount: With respect to the Sale Agreement
or with respect to a Mortgage Loan substituted by the Purchaser, an amount of
cash received from the Original Loan Seller in connection with a substitution
for a Deleted Mortgage Loan.
Supplemental Interest Account: The Supplemental Interest Account
created pursuant to Section 4.05 of this Agreement consisting of the Interest
Rate Swap Agreement, the Class IO Interest and the right to receive Class IO
Shortfalls, subject to the obligation to pay amounts specified in Section 4.05.
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the Offered
Certificates divided by (b) 30.
Swap Provider: Barclays Bank PLC, a bank authorized and regulated by
the United Kingdom's Financial Services Authority and a member of the London
Stock Exchange, and its successors in interest.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement), without
duplication of any amount previously paid by a replacement swap provider.
Tax Matters Person: The Holder of the Class R Certificates is
designated as "tax matters person" of (i) Pooling Tier REMIC-1, and (ii) Pooling
Tier REMIC-2, the Lower Tier REMIC and the Upper Tier REMIC, respectively, in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1.
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 11.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the
Remittance Date) or advanced on the Mortgage Loans for Due Dates during the
related Due Period (net of Expense Fees) over (ii) the sum of (A) the interest
payable to the Principal Certificates on such Distribution Date pursuant to
Section 4.01(a)(i), (B) any Net Swap Payments payable to the Swap Provider and
(C) any Swap Termination Payment (other than a Defaulted Swap Termination
Payment) payable to the Swap Provider.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: Either a Cumulative Loss Trigger Event or a
Delinquency Trigger Event.
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Excess Reserve Fund Account, Supplemental Interest Account, Collection Account
and the Distribution Account, and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure or
otherwise; (iv) the rights of the Depositor under the Interest Rate Swap
Agreement; (v) the rights of the Trust under the Assignment Agreements,
Countrywide and IndyMac Servicing Agreements and Sale Agreements; (vi) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing;
and (vii) the Closing Date Deposit Amount.
Trust REMIC: Any of Pooling Tier REMIC-1, Pooling Tier REMIC-2, the
Lower Tier REMIC or the Upper Tier REMIC, as applicable.
Trustee: HSBC Bank USA, National Association, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or amended by Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14979, or
any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on the amount in clause
(a) above at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Unpaid Realized Loss Amount: With respect to any Class of
Certificates and as to any Distribution Date, is the excess of (i) the Applied
Realized Loss Amounts with respect to such Class over (ii) the sum of (a) all
distributions in reduction of such Applied Realized Loss Amounts on all previous
Distribution Dates, and (b) the amount by which the Class Certificate Balance of
such Class has been increased due to the distribution of any Subsequent
Recoveries on all previous Distribution Dates. Any amounts distributed to a
Class of Certificates in respect of any Unpaid Realized Loss Amount will not be
applied to reduce the Class Certificate Balance of such Class.
Upper Tier Carry Forward Amount: With respect to each Class of
Offered Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Upper Tier REMIC Interest Rate for the Corresponding Class
of Upper Tier REMIC Regular Interest is based upon the Upper Tier REMIC Net WAC
Rate, the excess, if any, of (i) the Accrued Certificate Interest Distribution
Amount such Class of Offered Certificates would otherwise be entitled to receive
on such Distribution Date taking into account the WAC Cap, over (ii) the Accrued
Certificate Interest Distribution Amount such Class of Upper Tier REMIC Regular
Interest would otherwise be entitled to receive on such Distribution Date taking
into account the Upper Tier REMIC Net WAC Rate and (B) the Upper Tier Carry
Forward Amount for such Class of Certificates for all previous Distribution
Dates not previously paid, together with interest thereon at a rate equal to the
applicable Upper Tier REMIC Interest Rate for such Class of Certificates for
such Distribution Date, without giving effect to the Upper Tier REMIC Net WAC
Rate.
Upper Tier REMIC: As described in the Preliminary Statement.
Upper Tier REMIC Net WAC Rate: For any Distribution Date, the
weighted average of the Lower Tier REMIC Interest Rate of the Lower Tier REMIC
Regular Interests (other than the Class LT-IO Interest), weighted on the basis
of the Lower Tier REMIC Principal Amounts.
Upper Tier REMIC Regular Interest: As described in the Preliminary
Statement.
Upper Tier REMIC: As described in the Preliminary Statement.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class CE
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class R
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests) and (c) the remaining Voting Rights shall be allocated among Holders
of the remaining Classes of Certificates in proportion to the Certificate
Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to (ii) the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Mortgage Loans minus the product of (A) the Net Swap Payment plus
any Swap Termination Payment (other than a Defaulted Swap Termination Payment),
without duplication of any previously paid Replacement Swap Provider Payment,
made to the Swap Provider, if any, expressed as a percentage equal to a
fraction, the numerator of which is equal to the Net Swap Payment plus any Swap
Termination Payment (other than a Defaulted Swap Termination Payment) made to
the Swap Provider and the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans at the beginning of that Due Period and
(B) 12 multiplied by (ii) 30 divided by the actual number of days in the related
Interest Accrual Period. With respect ot the first Due Period and the first
Distribution Date only, the WAC Cap shall be reduced by a fraction, the
numerator of which is the Closing Date Deposit Amount and the denominator of
which is the Cut-off Date Pool Principal Balance.
▇▇▇▇▇ Fargo: ▇▇▇▇▇ Fargo Bank, National Association, a national
banking association, and its successors in interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Custodian for
the benefit of the Certificateholders the following documents or instruments
with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) the original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(iii) the related original Mortgage and evidence of its recording
or, in certain limited circumstances, a certified copy of the mortgage
with evidence of recording;
(iv) except with respect to a MERS Loan, originals of any
intervening Mortgage assignment or certified copies in either case
evidencing recording; provided, that the assignment may be in the form of
a blanket assignment or assignments, a copy of which with evidence of
recording shall be acceptable;
(v) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(vi) an original or copy of a title insurance policy or evidence of
title;
(vii) to the extent applicable, an original power of attorney; and
(viii) a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
The Depositor shall deliver to the Custodian the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 120 days from the Closing Date.
From time to time, pursuant to the Sale Agreement, the Original Loan
Seller may forward to the Custodian additional original documents, additional
documents evidencing an assumption, modification, consolidation or extension of
a Mortgage Loan, in accordance with the terms of the Sale Agreement. All such
mortgage documents held by the Custodian as to each Mortgage Loan shall
constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee Assignments of Mortgages (except in the case of MERS Loans), in blank,
for each applicable Mortgage Loan. On the Closing Date, the Custodian shall
provide a written request to the Original Loan Seller to submit the Assignments
of Mortgage for recordation, at the Original Loan Seller's expense, pursuant to
the Sale Agreement. The Custodian shall deliver the Assignment of Mortgages to
be submitted for recordation to the Original Loan Seller.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within the time period and in the manner specified in the Sale
Agreement, the Trustee shall take or cause to be taken such remedial actions
under the Sale Agreement against the Original Loan Seller as may be permitted to
be taken thereunder, including, without limitation, if applicable, the
repurchase by the Original Loan Seller of such Mortgage Loan. The foregoing
repurchase remedy shall not apply in the event that the Original Loan Seller
cannot deliver such original or copy of any document submitted for recordation
to the appropriate public recording office within the specified period due to a
delay caused by the recording office in the applicable jurisdiction; provided,
that the Original Loan Seller shall instead deliver a recording receipt of such
recording office or, if such recording receipt is not available, an officer's
certificate of an officer of the Original Loan Seller, confirming that such
document has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Original Loan Seller shall be deemed to have been satisfied upon delivery by
the Original Loan Seller to the Custodian prior to the Closing Date of a copy of
such Mortgage or assignment, as the case may be, certified (such certification
to be an original thereof) by the public recording office to be a true and
complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "BCAP LLC Trust 2006-AA2"
and HSBC Bank USA, National Association is hereby appointed as Trustee in
accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans and the Interest Rate Swap
Agreement) pursuant to Section 2.01(a). The Securities Administrator on behalf
of the Trust is hereby authorized to enter into the Interest Rate Swap
Agreement.
Section 2.02 Acceptance by the Custodian of the Mortgage Loans. The
Custodian shall acknowledge on the Closing Date receipt by the Custodian of the
documents identified in the Initial Certification in the form annexed hereto as
Exhibit E, and declares that it holds and will hold such documents and the other
documents delivered to it pursuant to Section 2.01, and that it holds or will
hold such other assets as are included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Custodian acknowledges that it will maintain possession of the related Mortgage
Notes in California, Minnesota or Salt Lake City, Utah.
Prior to and as a condition to the Closing Date, the Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage Note
and Assignment of Mortgage for each Mortgage Loan. The Custodian shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
On the Closing Date, the Custodian shall ascertain that all
documents required to be delivered to it are in its possession and shall deliver
to the Depositor an Initial Certification, in the form annexed hereto as Exhibit
E, and shall deliver to the Depositor a Document Certification and Exception
Report, in the form annexed hereto as Exhibit F, within 90 days after the
Closing Date to the effect that, as to each applicable Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception and
not covered by such certification): (i) all documents required to be delivered
to it are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based on
its examination and only as to the foregoing documents, the information set
forth in items (1), (2), (8), (32) and (34) of the Mortgage Loan Schedule
respecting such Mortgage Loan is correct; and each Mortgage Note has been
endorsed as provided in Section 2.01 of this Agreement. The Custodian shall not
be responsible to verify the validity, sufficiency or genuineness of any
document in any Custodial File.
The Custodian shall retain possession and custody of each applicable
Custodial File in accordance with and subject to the terms and conditions set
forth herein. The Servicer shall promptly deliver to the Custodian, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Custodial File as come into the possession of the
Servicer from time to time.
The Trustee shall enforce the obligation of the Original Loan Seller
to cure or repurchase Mortgage Loans that do not conform to the requirements of
Sections 2.01 and 2.02 as determined in the Custodian's review as required
herein by notifying the Original Loan Seller to correct or cure such default.
The Trustee shall also enforce the obligation of the Original Loan Seller under
the Sale Agreement, and the Servicing Agreement to cure or repurchase Mortgage
Loans for which there is a defect or a breach of a representation or warranty
thereunder of which a Responsible Officer of the Trustee has actual knowledge,
by notifying the applicable party to correct or cure such default. If the
Servicer or the Original Loan Seller, as the case may be, fails or is unable to
correct or cure the defect or breach within the period set forth in the
applicable agreement, the Trustee shall notify the Depositor of such failure to
correct or cure. Unless otherwise directed by the Depositor within five (5)
Business Days after notifying the Depositor of such failure by the applicable
party to correct or cure, the Trustee shall notify the Depositor and the
Depositor will cause the Original Loan Seller to repurchase the Mortgage Loan.
If, within ten (10) Business Days of receipt of such notice by such party, such
party fails to repurchase such Mortgage Loan, the Trustee shall notify the
Depositor of such failure. The Trustee shall pursue all legal remedies available
to the Trustee, on behalf of the Trust, against the Servicer, the Original Loan
Seller and the Purchaser, as applicable, under this Agreement, if the Trustee
has received written notice from the Depositor directing the Trustee to pursue
such remedies. The Trustee will be reimbursed by the Trust for all costs and
expenses incurred by it in enforcing such legal remedies.
Section 2.03 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized Denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" of each Trust REMIC for purposes of the REMIC Provisions shall
be the Closing Date. The "latest possible maturity date" of the regular
interests in each Trust REMIC is the Distribution Date occurring in January
2037, which is the Distribution Date in the month following the month in which
the latest maturity date of any Mortgage Loan occurs.
Amounts distributable to the Class CE Certificates (prior to any
reduction for any Basis Risk Payment, Net Swap Payment or Swap Termination
Payment), exclusive of any amounts received from the Swap Provider, shall be
deemed paid from the Upper Tier REMIC in respect of the Class CE Interest and
the Class IO Interest to the Holders of the Class CE Certificates prior to
distribution of any Basis Risk Payments to the Offered Certificates or Swap
Termination Payment to the Swap Provider.
For federal income tax purposes, any amount distributed on the
Offered Certificates on any Distribution Date in excess of the amount
distributable on their Corresponding Class of Upper Tier Regular Interest on
such Distribution Date shall be treated as having been paid from the Excess
Reserve Fund Account or the Supplemental Interest Account, as applicable, and
any amount distributable on such Corresponding Class of Upper Tier Regular
Interest on such Distribution Date in excess of the amount distributable on the
Corresponding Class of Offered Certificates on such Distribution Date shall be
treated as having been paid to the Supplemental Interest Account as a Class IO
shortfall, all pursuant to and as further provided in Section 8.16.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Master Servicer, the
Securities Administrator, the Custodian and the Trustee that as of the date of
this Agreement or as of such date specifically provided herein:
(a) The Depositor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the power and authority to convey the Mortgage
Loans and to execute, deliver and perform, and to enter into and consummate
transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite company action having been taken,
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been received or obtained on or
prior to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the certificate of formation or limited liability company
agreement of the Depositor, or (B) of any term, condition or provision of any
material indenture, deed of trust, contract or other agreement or instrument to
which the Depositor or any of its subsidiaries is a party or by which it or any
of its subsidiaries is bound; (ii) results or will result in a violation of any
law, rule, regulation, order, judgment or decree applicable to the Depositor of
any court or governmental authority having jurisdiction over the Depositor or
its subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that would materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 12.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodian, and shall inure to the benefit of
the Certificateholders.
Section 2.06 Representations and Warranties of the Trustee. The
Trustee hereby represents and warrants to the Depositor, the Master Servicer,
the Securities Administrator and the Custodian, as of the Closing Date:
(a) The Trustee has been duly incorporated and is validly existing
as a national banking association and is duly qualified to do business and in
good standing under the laws of each jurisdiction in which the performance of
its duties under this Agreement would require such qualification and has the
requisite power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) The Trustee has the full power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated by
this Agreement and has duly authorized by all necessary action on the part of
the Trustee the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery thereof by the
other parties thereto, constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms, except
that (i) the enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (ii) 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.
(c) The execution and delivery of this Agreement by the Trustee, the
consummation of any other of the transactions contemplated by this Agreement,
and the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of the Trustee and will not (i) result in a material breach
of any term or provision of the articles of incorporation or bylaws of the
Trustee, (ii) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which the Trustee is a party or by
which it may be bound, or (iii) constitute a material violation of any statute,
order or regulation applicable to the Trustee of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the Trustee;
and the Trustee is not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
the Trustee's ability to perform or meet any of its obligations under this
Agreement.
(d) No litigation is pending or threatened against the Trustee that
would materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of the Trustee to perform any of its
obligations under this Agreement in accordance with the terms thereof. For
purposes of the foregoing, the Trustee does not regard any actions, proceedings
or investigations "threatened" unless the potential litigants or governmental
authority has manifested to a member of the Trustee's Legal Department having
responsibility for litigation matters involving the corporate trust activities
of the Trustee its present intention to initiate such proceedings.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee of, or compliance by the Trustee with, this Agreement
or the consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, the Trustee has obtained
the same.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Distribution Account and Excess Reserve Fund Account.
(a) The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class CE Certificateholders, to receive any Basis
Risk Payment and to secure their limited recourse obligation to pay to the
Offered Certificateholders any Basis Risk Carry Forward Amounts (prior to using
any Net Swap Receipts). For the avoidance of doubt, any Basis Risk Carry Forward
Amounts shall be paid to the Principal Certificates first from the Excess
Reserve Fund Account and then from the Supplemental Interest Account. On each
Distribution Date, the Securities Administrator shall deposit the amount of any
Basis Risk Payment received by it for such date into the Excess Reserve Fund
Account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Principal Certificates, the Securities
Administrator shall (1) withdraw from the Distribution Account, to the extent of
funds available therefor in the Distribution Account, and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.01(a)(iii)(D), the lesser of (x)
the Class CE Distributable Amount (without regard to the reduction in clause
(iii) of the definition thereof with respect to Basis Risk Carry Forward Amount
or any Defaulted Swap Termination Payment) (to the extent remaining after the
distributions specified in Sections 4.01(a)(iii)(A)-(C)) and (y) the aggregate
Basis Risk Carry Forward Amounts of the Principal Certificates for such
Distribution Date and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of Principal Certificates the related
Basis Risk Carry Forward Amount. Such payments shall be allocated to those
Classes based upon the amount of Basis Risk Carry Forward Amount owed to each
such Class and shall be paid in the priority set forth in Section
4.01(a)(iii)(E).
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class CE Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper Tier REMIC to the Excess Reserve Fund Account shall be
treated as distributions by the Securities Administrator to the Class CE
Certificateholders in respect of the Class CE Interest and then contributed by
the Class CE Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Principal Certificateholders from the Excess Reserve Fund
Account shall be accounted for by the Securities Administrator, for federal
income tax purposes, as amounts paid first to the Holders of the Class CE
Certificates (in respect of the Class CE Interest or the Class IO Interest,
respectively) and then to the respective Class or Classes of Principal
Certificates. In addition, the Securities Administrator shall account for the
Principal Certificateholders' rights to receive payments of Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account (along with payments of
Basis Risk Carry Forward Amounts and, without duplication, Upper Tier Carry
Forward Amounts from the Supplemental Interest Account) and obligation to pay
Class IO shortfalls to the Supplemental Interest Account as rights and
allegations in a limited recourse notional principal contract between the Class
CE Certificateholders and the Holders of each such Class. Funds in the Excess
Reserve Fund Account shall remain uninvested.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any distributions from
the Excess Reserve Fund Account except as expressly set forth in this Section
3.01(a).
(b) The Securities Administrator shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Securities
Administrator shall, promptly upon receipt on the Business Day received, deposit
in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the applicable Servicer to the
Securities Administrator pursuant to the applicable Servicing Agreement;
and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the applicable Servicer shall remit any amount not
required to be remitted pursuant to the applicable Servicing Agreement, and the
applicable Servicer directs the Securities Administrator in writing to withdraw
such amount from the Distribution Account, the Securities Administrator shall
return such funds to the Servicer. All funds deposited in the Distribution
Account shall be held by the Securities Administrator in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.01.
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Securities Administrator may (but shall not be obligated to) invest funds in
the Distribution Account during the Securities Administrator Float Period (for
purposes of this Section 3.02, such Account is referred to as an "Investment
Account"), in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand or maturing on such
Distribution Date, in the case of an investment that is an obligation of the
Securities Administrator, no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement. All such Permitted Investments shall be held to
maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Securities Administrator. The
Securities Administrator shall be entitled to sole possession over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Securities Administrator or its
agent, together with any document of transfer necessary to transfer title to
such investment to the Securities Administrator. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Securities Administrator may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator Float Period shall be subject to the
Securities Administrator's withdrawal in the manner set forth in Section 12.05.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings. Notwithstanding the foregoing, the Securities
Administrator shall be liable to the Trust for any such loss on any funds it has
invested under this Section 3.02 only during the Securities Administrator Float
Period, and the Securities Administrator shall deposit funds in the amount of
such loss in the Distribution Account promptly after such loss is incurred.
(d) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation is not payable or
reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Securities Administrator shall obtain and verify certain information
and documentation from certain other parties to this Agreement including, but
not limited to, each such party's name, address and other identifying
information.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator will make the disbursements and transfers
from amounts then on deposit in the Distribution Account in the following order
of priority and to the extent of the Available Funds remaining and, on such
Distribution Date, shall make distributions on the Certificates in accordance
with such allocation:
(i) to the Supplement Interest Account and to the holders of each
Class of Principal Certificates and to the Supplemental Interest Account
in the following order of priority:
(A) from the Interest Remittance Amount, to the Supplemental
Interest Account, the sum of (x) all Net Swap Payments and (y) any
Swap Termination Payment owed to the Swap Provider other than a
Defaulted Swap Termination Payment (to the extent not previously
received by the Swap Provider as a Replacement Swap Provider
Payment), if any;
(B) from any remaining Interest Remittance Amount, to the
Class A-1 and Class A-2 Certificates, the related Accrued
Certificate Interest Distribution Amounts and Unpaid Interest
Amounts for those Classes for such Distribution Date, allocated pro
rata based on their respective entitlements to those amounts;
(C) from any remaining Interest Remittance Amount, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amount, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amount, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(F) from any remaining Interest Remittance Amount, to the
Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(G) from any remaining Interest Remittance Amount, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(H) from any remaining Interest Remittance Amount, to the
Class M-6 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(I) from any remaining Interest Remittance Amount, to the
Class M-7 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(J) from any remaining Interest Remittance Amount, to the
Class M-8 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii) (A) on each Distribution Date (1) prior to the Stepdown Date or
(2) with respect to which a Trigger Event is in effect, to the
Supplemental Interest Account and to the Holders of the related Class or
Classes of Principal Certificates then entitled to distributions of
principal, from Available Funds remaining after making distributions
pursuant to clause (i) above, an amount equal to the Principal
Distribution Amount in the following order of priority:
(1) to the extent unpaid after the distributions
pursuant to clause (i)(A) above, to the Supplemental Interest
Account, the sum of (x) all Net Swap Payments and (y) any Swap
Termination Payment (to the extent not previously received by
the Swap Provider as a Replacement Swap Provider Payment),
other than a Defaulted Swap Termination Payment, owed to the
Swap Provider, if any;
(2) to the Class A-1 and Class A-2 Certificates, pro
rata, based on their Class Certificate Balances, until their
respective Class Certificate Balances are reduced to zero; and
(3) sequentially to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, until the respective Class
Certificate Balances are reduced to zero;
(B) on each Distribution Date (1) on and after the Stepdown
Date and (2) as long as a Trigger Event is not in effect, to the
Supplemental Interest Account and to the Holders of the related
Class or Classes of Principal Certificates then entitled to
distribution of principal, from Available Funds remaining on deposit
in the Distribution Account after making distributions pursuant to
clause (i) above, an amount equal to the Principal Distribution
Amount in the following amounts and order of priority:
(1) to the extent unpaid after the distributions
pursuant to clause (i)(A) above, to the Supplemental Interest
Account, the sum of (x) all Net Swap Payments and (y) any Swap
Termination Payment (to the extent not previously received by
the Swap Provider as a Replacement Swap Provider Payment),
other than a Defaulted Swap Termination Payment, owed to the
Swap Provider, if any;
(2) to the Class A Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(i) above and (y) the Class A Principal
Distribution Amount, allocated pro rata based on their Class
Certificate Balances until their respective Class Certificate
Balances are reduced to zero;
(3) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above and (y)
the Class M-1 Principal Distribution Amount until their Class
Certificate Balance has been reduced to zero;
(4) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above and to
the Class M-1 Certificateholders in clause (ii)(B)(3) above
and (y) the Class M-2 Principal Distribution Amount, until
their Class Certificate Balance has been reduced to zero;
(5) to the Class M-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above and to
the Class M-2 Certificateholders in clause (ii)(B)(4) above
and (y) the Class M-3 Principal Distribution Amount, until
their Class Certificate Balance has been reduced to zero;
(6) to the Class M-4 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above, to
the Class M-2 Certificateholders in clause (ii)(B)(4) above
and to the Class M-3 Certificateholders in clause (ii)(B)(5)
above and (y) the Class M-4 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to
zero;
(7) to the Class M-5 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above, to
the Class M-2 Certificateholders in clause (ii)(B)(4) above,
to the Class M-3 Certificateholders in clause (ii)(B)(5) above
and to the Class M-4 Certificateholders in clause (ii)(B)(6)
above and (y) the Class M-5 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to
zero;
(8) to the Class M-6 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above, to
the Class M-2 Certificateholders in clause (ii)(B)(4) above,
to the Class M-3 Certificateholders in clause (ii)(B)(5)
above, to the Class M-4 Certificateholders in clause
(ii)(B)(6) above and to the Class M-5 Certificateholders in
clause (ii)(B)(7) above and (y) the Class M-6 Principal
Distribution Amount, until their Class Certificate Balance has
been reduced to zero;
(9) to the Class M-7 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above, to
the Class M-2 Certificateholders in clause (ii)(B)(4) above,
to the Class M-3 Certificateholders in clause (ii)(B)(5)
above, to the Class M-4 Certificateholders in clause
(ii)(B)(6) above, to the Class M-5 Certificateholders in
clause (ii)(B)(7) and to the Class M-6 Certificateholders in
clause (ii)(B)(8) above and (y) the Class M-7 Principal
Distribution Amount, until their Class Certificate Balance has
been reduced to zero; and
(10) to the Class M-8 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account
in clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above, to
the Class M-2 Certificateholders in clause (ii)(B)(4) above,
to the Class M-3 Certificateholders in clause (ii)(B)(5)
above, to the Class M-4 Certificateholders in clause
(ii)(B)(6) above, to the Class M-5 Certificateholders in
clause (ii)(B)(7), to the Class M-6 Certificateholders in
clause (ii)(B)(8) above and to the Class M-7
Certificateholders in clause (ii)(B)(9) above and (y) the
Class M-8 Principal Distribution Amount, until their Class
Certificate Balance has been reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above, plus as specifically indicated below, amounts on deposit
in the Excess Reserve Fund Account, shall be distributed in the following
order of priority:
(A) sequentially, to the Holders of the Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, any Unpaid Interest Amount for each
such Class;
(B) sequentially, to the Holders of the Class A-1 and Class
A-2 Certificates, in that order, any Unpaid Realized Loss Amount for
each such Class;
(C) sequentially, to the Holders of the Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, any Unpaid Realized Loss Amount for
each such Class;
(D) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to any Net Swap Receipts) for
such Distribution Date;
(E) from funds on deposit in the Excess Reserve Fund Account
with respect to that Distribution Date, an amount equal to any
remaining unpaid Basis Risk Carry Forward Amount with respect to the
Principal Certificates for that Distribution Date, first,
concurrently to the Class A Certificates, pro rata, based on their
respective Class Certificate Balances immediately prior to that
Distribution Date, up to their respective unpaid remaining Basis
Risk Carry Forward Amounts (provided that, if for any Distribution
Date, after the allocation of the remaining unpaid Basis Risk Carry
Forward Amounts to the Class A Certificates, the remaining unpaid
Basis Risk Carry Forward Amounts for any of the Class A Certificates
is reduced to zero, any amount of remaining unpaid Basis Risk Carry
Forward Amounts that would have been allocated to that Class A
Certificate for that Distribution Date will instead be allocated,
pro rata, based on their respective remaining unpaid Basis Risk
Carry Forward Amounts, to the other Class A Certificates to the
extent the other Class A Certificates have any remaining unpaid
Basis Risk Carry Forward Amounts), and, second, sequentially to the
Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7 and Class M-8 Certificates, in that order, in each case up
to their respective unpaid remaining Basis Risk Carry Forward
Amounts;
(F) to the Supplemental Interest Account, the amount of any
Defaulted Swap Termination Payment owed to the Swap Provider;
(G) to the Class CE Certificates, the remainder of the Class
CE Distributable Amount not distributed pursuant to Sections
4.02(a)(iii)(A)-(F); and
(H) to the Class R Certificates, any remaining amount, in
respect of each Trust REMIC.
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive in full the related
Accrued Certificate Interest Distribution Amount or the related Unpaid Interest
Amount, if any, then such shortfall will be allocated to the Holders of such
Classes, with interest thereon, on future Distribution Dates, as an Unpaid
Interest Amount, subject to the priorities described above. In the event the
Class Certificate Balance of any Class of Principal Certificates has been
reduced to zero, that Class of Certificates shall no longer be entitled to
receive any related unpaid Basis Risk Carry Forward Amounts except to the extent
the Class Certificate Balance is increased as a result of any Subsequent
Recovery.
(b) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be allocated
by the Securities Administrator as a reduction in the following order:
(i) First, to the portion of the Class CE Distributable Amount
allocable to interest; and
(ii) Second, pro rata, as a reduction of the Accrued Certificate
Interest Distribution Amount for the Class A and Class M Certificates,
based on the amount of interest to which such Classes would otherwise be
entitled.
Section 4.02 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Servicers, the Depositor and each Rating Agency a
statement based in part on information provided by the Servicer setting forth
with respect to the related distribution:
(i) the actual Distribution Date, the related Record Date, the
Interest Accrual Period(s) for each Class for such Distribution Date and
the LIBOR Determination Date for such Interest Accrual Period;
(ii) the amount of Available Funds;
(iii) the amount of Available Funds allocable to principal, the
Principal Remittance Amount (separately identifying the components
thereof) and the Principal Distribution Amount (and the calculation
thereof);
(iv) the amount of Available Funds allocable to interest and each
Interest Remittance Amount;
(v) the amount of any Unpaid Interest Amount for each Class included
in such distribution and any remaining Unpaid Interest Amounts after
giving effect to such distribution, any Basis Risk Carry Forward Amount
for each Class and the amount of such Basis Risk Carry Forward Amount
covered by withdrawals from the Excess Reserve Fund Account on such
Distribution Date;
(vi) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation of the shortfall as between principal
and interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(vii) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on such
Distribution Date;
(viii) the Pool Stated Principal Balance for the related
Distribution Date;
(ix) the amount of the Expense Fees paid to or retained by the
Servicers with respect to such Distribution Date;
(x) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(xi) the amount of P & I Advances included in the distribution on
such Distribution Date reported by the Servicers (and the Master Servicer
or the Trustee as successor servicer and any other successor servicer, if
applicable) as of the close of business on the Determination Date
immediately preceding such Distribution Date;
(xii) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days, 91 or more days, and in such other periods and for
such times as required by Regulation AB, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month to be calculated in accordance with the MBA
method;
(xiii) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xiv) with respect to any Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate outstanding principal balance of such Mortgage
Loans as of the close of business on the last Business Day of the
immediately preceding month and the month and year of acquisition of such
REO Properties;
(xv) the total number and outstanding principal balance of any REO
Properties (and market value, if available) as of the close of business on
the last Business Day of the immediately preceding month;
(xvi) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger
Event);
(xvii) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xviii) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xix) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation of it to the Certificateholders with
respect to Unpaid Interest Amounts, Applied Realized Loss Amounts and
Basis Risk Carry Forward Amounts;
(xx) the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments;
(xxi) LIBOR and Swap LIBOR;
(xxii) the Subordinated Amount and Specified Subordinated Amount;
(xxiii) the Cumulative Loss Percentage and the aggregate amount of
Realized Losses used to calculate the Cumulative Loss Percentage;
(xxiv) the amount distributed on the Class CE Certificates;
(xxv) the amount of any Subsequent Recoveries for such Distribution
Date; and
(xxvi) the number of Mortgage Loans at the beginning and end of the
applicable reporting period, the pool factor, and the weighted average
interest rate, and weighted average remaining term.
In addition, each Form 10-D prepared and filed by the Securities
Administrator pursuant to Section 8.12 shall include the following information
with respect to the related distribution:
(i) material breaches of Mortgage Loan representations and
warranties of which the Securities Administrator has knowledge or
has received written notice; and
(ii) material breaches of any covenants under this Agreement
of which the Securities Administrator has knowledge or has received
written notice.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency and the Depositor
is limited, if applicable, to the availability, timeliness and accuracy of the
information derived from the Servicer. The Securities Administrator shall make
available the above statement via the Securities Administrator's internet
website. The Securities Administrator's website will initially 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 website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk and
indicating such. The Securities Administrator may change the way the monthly
statements to Certificateholders are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and the
Securities Administrator shall provide timely and adequate notification to all
above parties regarding any such changes. As a condition to access the
Securities Administrator's internet website, the Securities Administrator may
require registration and the acceptance of a disclaimer. The Securities
Administrator will not be liable for the dissemination of information in
accordance with this Agreement.
The Securities Administrator shall make available to each Analytics
Company via the Securities Administrator's internet website each statement to
Certificateholders prepared pursuant to this Section 4.02(b). The Securities
Administrator and the Servicer shall cooperate in good faith with the Depositor
to reconcile any discrepancies in such statements, and the Securities
Administrator shall provide any corrections to such statements to each Analytics
Company within ten Business Days of the related Distribution Date. provided that
the Securities Administrator shall only be obligated to report to one Analytics
Company in any month.
(c) Within a reasonable period of time after the end of each
calendar year, the Securities Administrator shall cause to be furnished to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(iii), (a)(v) and
(a)(x) of this Section 4.02 aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Securities Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Securities Administrator pursuant to any requirements of the
Code as from time to time in effect.
(d) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments made or received under the Interest Rate Swap Agreement and Cap
Agreement and payments to Certificateholders of interest or original issue
discount that the Trustee reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for such withholding. If the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
Section 4.03 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
to the most junior Class of Subordinated Certificates then Outstanding in
reduction of the Class Certificate Balance thereof and after the Class
Certificate Balance of each Class of Subordinated Certificates is reduced to
zero, first to the Class A-2 Certificates and then to the Class A-1
Certificates, until the Class Certificate Balance of each such Class is reduced
to zero. In the event, Applied Realized Loss Amounts are allocated to any Class
of Certificates, their Class Certificate Balances shall be reduced by the amount
so allocated and no funds shall be distributed with respect to the written down
amounts or with respect to interest or Basis Risk Carry Forward Amounts on the
written down amounts on that Distribution Date or any future Distribution Dates,
even if funds are otherwise available therefor.
Notwithstanding the foregoing, the Class Certificate Balance of each
Class of Certificates that has been previously reduced by Applied Realized Loss
Amounts will be increased, in that order or seniority, by the amount of the
Subsequent Recoveries (but not in excess of the Applied Realized Loss Amount
allocated to the applicable Class of Certificates).
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of LIBOR. Until all of the Principal Certificates are paid in full,
the Securities Administrator shall at all times retain at least four Reference
Banks for the purpose of determining LIBOR with respect to each LIBOR
Determination Date. The Securities Administrator initially shall designate the
Reference Banks (after consultation with the Depositor). Each "Reference Bank"
shall be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or be
under common control with, the Securities Administrator and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Securities Administrator should
terminate its appointment as Reference Bank, the Securities Administrator shall
promptly appoint or cause to be appointed another Reference Bank (after
consultation with the Depositor). The Securities Administrator shall have no
liability or responsibility to any Person for (i) the selection of any Reference
Bank for purposes of determining LIBOR or (ii) any inability to retain at least
four Reference Banks which is caused by circumstances beyond its reasonable
control.
(i) The Pass-Through Rate for each Class of Principal Certificates
for each Interest Accrual Period shall be determined by the Securities
Administrator on each LIBOR Determination Date so long as the Principal
Certificates are Outstanding on the basis of LIBOR and the respective
formulae appearing in footnotes corresponding to the Principal
Certificates in the table relating to the Certificates in the Preliminary
Statement. The Securities Administrator shall not have any liability or
responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to
determine the arithmetic mean referred to in the definition of LIBOR, all
as provided for in this Section 4.04 and the definition of LIBOR. The
establishment of LIBOR and each Pass-Through Rate for the Principal
Certificates by the Securities Administrator shall (in the absence of
manifest error) be final, conclusive and binding upon each Holder of a
Certificate and the Securities Administrator.
Section 4.05 Supplemental Interest Account. On the Closing Date, the
Securities Administrator shall establish and maintain in its name, a separate
non-interest bearing trust account for the benefit of the holders of the
Principal Certificates (the "Supplemental Interest Account") as a part of the
Trust Fund. The Supplemental Interest Account shall be an Eligible Account, and
funds on deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including, without limitation, other moneys
of the Securities Administrator held pursuant to this Agreement. Funds in the
Supplemental Interest Account shall remain uninvested.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts for that Distribution
Date will be deposited into the Supplemental Interest Account. With respect to
any Distribution Date, funds in the Supplemental Interest Account will be
distributed in the following order of priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment (to the extent not previously received by
the Swap Provider as a Replacement Swap Provider Payment), other than a
Defaulted Swap Termination Payment, to the Swap Provider, if any, owed for
that Distribution Date;
(ii) to the Class A-1 and Class A-2 Certificates, to pay Accrued
Certificate Interest Distribution Amounts and, if applicable, any Unpaid
Interest Amounts, pro rata, based on their respective entitlements to
those amounts to the extent unpaid from Available Funds;
(iii) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that
order, to pay Accrued Certificate Interest and, if applicable, Unpaid
Interest Amounts to the extent unpaid from other Available Funds;
(iv) to the Principal Certificates, to pay any Basis Risk Carry
Forward Amounts as described, and in the same manner and priority as set
forth in Section 4.01(a)(iii)(E) above, to the extent unpaid from other
Available Funds (including funds on deposit in the Excess Reserve Fund
Account);
(v) sequentially, to the Class A, Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in
that order, to pay principal as described, and in the same manner and
order of priority as set forth, in Section 4.01(a)(ii)(A) or
4.01(a)(ii)(B) above, as applicable, but only to the extent necessary to
restore the Subordinated Amount to the Specified Subordinated Amount as a
result of current or prior Realized Losses not previously reimbursed,
after giving effect to payments and distributions from other Available
Funds;
(vi) concurrently, to the Class A-1 and Class A-2 Certificates, pro
rata, based upon the remaining Unpaid Realized Loss Amounts for each such
Class, in each case in an amount equal to the remaining Unpaid Realized
Loss Amount for each such Class, to the extent unpaid from other Available
Funds;
(vii) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that
order, to pay any Unpaid Realized Loss Amounts, in each case in an amount
equal to the remaining Unpaid Realized Loss Amount for each such Class, to
the extent unpaid from other Available Funds;
(viii) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(ix) to the Holders of the Class CE Certificates, any remaining
amounts.
Notwithstanding any other provision in this Agreement, in the event
that the Interest Rate Swap Agreement is terminated and the Trust enters into a
replacement interest rate swap agreement and the Trust is entitled to receive a
payment from a replacement swap provider, the Trustee shall direct the
replacement swap provider to make such payment (the "Replacement Swap Provider
Payment") to the Supplemental Interest Trust. The Supplemental Interest Trust
shall pay to the Swap Provider the lesser of (x) the amount so received and (y)
any Swap Termination Payment owed to the Swap Provider (to the extent not
already paid by the Trust) that is being replaced immediately upon receipt of
the Replacement Swap Provider Payment, regardless of whether the date of receipt
thereof is a Distribution Date; provided that to the extent that the Replacement
Swap Provider Payment is less than the Swap Termination Payment owed to the Swap
Provider, any remaining amounts will be paid to the Swap Provider on the
subsequent Distribution Date (unless the Replacement Swap Provider Payment is
paid to the Swap Provider on a Distribution Date, in which case such remaining
amounts will be paid on such Distribution Date) in accordance with the priority
of payments described in Section 4.01 of this Agreement. For the avoidance of
doubt, the parties agree that the Swap Provider shall have first priority to any
Replacement Swap Provider Payment over the payment by the Trust to
Certificateholders, any Servicer, any Custodian, any Responsible Party, the
Trustee or any other Person.
Notwithstanding the foregoing, in the event that the Trust receives
a Swap Termination Payment and a successor Swap Provider cannot be obtained,
then the Securities Administrator shall deposit the Swap Termination Payment
into the reserve account that is a sub-account of the Supplemental Interest
Account. On each subsequent Distribution Date (so long as funds are available in
the reserve account), the Securities Administrator shall withdraw from the
reserve account and deposit into the Supplemental Interest Account an amount
equal to the amount of any Net Swap Receipt due the Trust (calculated in
accordance with the terms of the original Interest Rate Swap Agreement) and
treat such amount as a Net Swap Receipt for purposes of determining the
distributions from the Supplemental Interest Account.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Account shall be distributed pursuant to the priorities
set forth in this Section 4.05.
The Securities Administrator shall account for the Supplemental
Interest Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Supplemental Interest Account
are the Class CE Certificateholders. For federal income tax purposes, Net Swap
Payments and Swap Termination Payments payable to the Swap Provider (without
duplication from for any amount previously paid as a Replacement Swap Provider
Payment) shall be deemed to be paid to the Supplemental Interest Account from
the Upper Tier REMIC, first, by the Holder of the Class CE Certificates (in
respect of the Class IO Interest and, if applicable, Class CE Interest) and
second, other than any Defaulted Swap Termination Payment, by the Holders of the
applicable Class or Classes of Offered Certificates (in respect of Class IO
Shortfalls) as and to the extent provided in Section 8.13.
Any Basis Risk Carry Forward Amounts and, without duplication, Upper
Tier Carry Forward Amounts distributed by the Securities Administrator to the
Offered Certificateholders from the Excess Reserve Fund Account or the
Supplemental Interest Account shall be accounted for by the Securities
Administrator, for federal income tax purposes, as amounts paid first to the
Holders of the Class CE Certificates (in respect of the Class CE Interest or the
Class IO Interest, respectively) and then to the respective Class or Classes of
Offered Certificates. In addition, the Securities Administrator shall account
for the rights of Holders of each Class of Offered Certificates to receive
payments of Basis Risk Carry Forward Amounts and, without duplication, Upper
Tier Carry Forward Amounts from the Supplemental Interest Account (along with
Basis Risk Carry Forward Amounts payable from the Excess Reserve Fund Account)
and the obligations to pay Class IO shortfalls to the Supplemental Interest
Account as rights and obligations in a separate limited recourse notional
principal contract between the Class CE Certificateholders and of Holders of
each such Class.
The Supplemental Interest Account shall be an "outside reserve fund"
for federal income tax purposes and not an asset of any Trust REMIC.
Furthermore, the Holders of the Class CE Certificates shall be the beneficial
owners of the Supplemental Interest Account for all federal income tax purposes,
and shall be taxable on all income earned thereon, and any amounts reimbursed
from the Upper Tier REMIC to the Supplemental Interest Account shall be treated
as having been distributed to the Holders of the Class CE Certificates.
In the event the Swap Provider does not deliver the Delivery Amount
(as defined in the Interest Rate Swap Agreement) to the Securities
Administrator, the Securities Administrator shall provide notice of such failure
to the Swap Provider within one Business Day of such failure.
With respect to the failure of the Swap Provider to perform any of
its obligations under the Interest Rate Swap Agreement, the breach by the Swap
Provider of any of its representations and warranties made pursuant to the
Interest Rate Swap Agreement, or the termination of the Interest Rate Swap
Agreement, the Trustee shall send any notices and make any demands, on behalf of
the Trust as are required under the Interest Rate Swap Agreement.
The Depositor shall cause any replacement swap provider to provide a
copy of the related replacement interest rate swap agreement to the Trustee.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount) and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class CE Certificates in the name of the Depositor or its designee.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) 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 Business
Days prior to the related Record Date or (y) by check mailed by first class mail
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
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
such signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed 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 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 5.06, 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 execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
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 which 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 cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private 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 determining whether a transfer is being made pursuant to an effective
registration statement, the Securities Administrator shall be entitled to rely
solely upon a written notice to such effect from the Depositor. Except with
respect to (i) the transfer of the Class CE Certificates or the Residual
Certificates to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class CE Certificates to the NIM Issuer or the NIM Trustee, or
(iii) a transfer of the Class CE Certificates from the NIM Issuer or the NIM
Trustee to the Depositor or an Affiliate of the Depositor, in the event that a
transfer of a Private Certificate which is a Physical Certificate 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 shall certify to the Securities Administrator
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit H (the "Transferor Certificate") and either (i) there shall be
delivered to the Securities Administrator a letter in substantially the form of
Exhibit I (the "Rule 144A Letter") or (ii) there shall be delivered to the
Securities Administrator at the expense of the transferor an Opinion of Counsel
that such transfer may be made without registration under the Securities Act. In
the event that a transfer of a Private Certificate which is a Book-Entry
Certificate 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 will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. As directed by the
Depositor, the Securities Administrator shall provide to any Holder of a Private
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 Depositor shall cooperate with the
Securities Administrator and the Servicer in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Securities
Administrator such information regarding the Certificates, the Mortgage Loans
and other matters regarding the Trust Fund as the Depositor shall reasonably
determine to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator, the Servicer and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Except with respect to (i) the transfer of the Class CE Certificates
or the Residual Certificates to the Depositor or an Affiliate of the Depositor,
(ii) the transfer of the Class CE Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class CE Certificates from the NIM Issuer or
the NIM Trustee to the Depositor or an Affiliate of the Depositor, no transfer
of an ERISA-Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator (in the event such Certificate is a
Private Certificate, such requirement is satisfied only by the Securities
Administrator's receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that such transferee is
not an employee benefit plan or arrangement subject to Section 406 of ERISA, a
plan subject to Section 4975 of the Code or a plan subject to any Federal, state
or local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, nor a Person acting on behalf of any such plan or arrangement
nor using the assets of any such plan or arrangement to effect such transfer, or
(ii) in the case of an ERISA-Restricted Certificate other than a Residual
Certificate that has been the subject of an ERISA-Qualifying Underwriting, and
the purchaser is an insurance company, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
other than a Residual Certificate presented for registration in the name of an
employee benefit plan subject to Title I of ERISA, a plan or arrangement subject
to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a plan subject to Similar Law, or a trustee of any such plan or
any other Person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Securities Administrator and the Servicer, which Opinion of Counsel shall not be
an expense of the Depositor, the Securities Administrator, the Servicers, the
Master Servicer, the Custodian or the Trust Fund, addressed to the Securities
Administrator, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Depositor, the Securities
Administrator, the Master Servicer, the Custodian or the Servicers to any
obligation in addition to those expressly undertaken in this Agreement or to any
liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Private Certificate, in the event the
representation letter referred to in the preceding sentence is not furnished,
such representation shall be deemed to have been made to the Securities
Administrator by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. Notwithstanding anything else to the
contrary herein, (a) any purported transfer of an ERISA-Restricted Certificate,
other than a Residual Certificate, to or on behalf of an employee benefit plan
subject to ERISA, the Code or Similar Law without the delivery to the Securities
Administrator of an Opinion of Counsel satisfactory to the Securities
Administrator as described above shall be void and of no effect and (b) any
purported transfer of a Residual Certificate to a transferee that does not make
the representation in clause (i) above shall be void and of no effect.
None of the Residual Certificates may be sold to any employee
benefit plan subject to Title I of ERISA, any plan subject to Section 4975 of
the Code, or any plan subject to any Similar Law or any Person investing on
behalf or with plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA-Restricted Certificate
that is in fact not permitted by this Section 5.02(b) or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate other than an ERISA Restricted Certificate, or
any interest therein, shall be deemed to have represented that either (i) it is
not a Plan or (ii) the acquisition and holding of the Certificate are eligible
for the exemptive relief available under at least one of (i) Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 84-14 (for transactions by
independent "qualified professional asset managers"), (ii) PTCE 91-38 (for
transactions by bank collective investment funds), (iii) ▇▇▇▇ ▇▇-▇ (for
transactions by insurance company pooled separate accounts), PTCE 95-60 (for
transactions by insurance company general accounts) or (iv) PTCE 96-23 (for
transactions effected by "in-house asset managers") or similar exemption under
similar law.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
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 "Transfer Affidavit") of the initial owner or the proposed transferee
in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is a
Non-Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual 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 Residual Certificate in violation of the provisions of this 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 Residual Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Residual 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 Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Securities Administrator shall
be entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact a Non-Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became a Non-Permitted
Transferee, all payments made on such Residual 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; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is a Non-Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual 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 Trust Fund, the
Securities Administrator, the Master Servicer, the Custodian or the Servicers,
to the effect that the elimination of such restrictions will not cause any Trust
REMIC 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 Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment of
this Agreement which, 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 Residual Certificate is not transferred,
directly or indirectly, to a Person that is a Non-Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is a Non-Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Securities
Administrator shall deal with the Depository, Depository Participants and
indirect participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) 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 furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies 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 Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to initiate such termination, the Securities
Administrator shall notify all Certificate Owners, through the Depository, of
the occurrence of any such event and of the availability of definitive, fully
registered Certificates (the "Definitive Certificates") to Certificate Owners
requesting the same. Upon surrender to the Securities Administrator of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Securities Administrator shall issue
the Definitive Certificates. None of the Depositor or the Securities
Administrator shall be liable for any delay in delivery of such instruction and
each may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Securities Administrator with an
adequate inventory of Certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of 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 the
Definitive Certificates as Certificateholders hereunder; provided, that the
Securities Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Securities Administrator in accordance with its customary practice. No
service charge shall be made for any registration of transfer or exchange of
Private Certificates, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Private Certificates.
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 (b) there is delivered to the
Depositor and the Securities Administrator such security or indemnity as may be
required by them to hold 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, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Securities
Administrator, the Depositor and any agent of the Depositor or 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 the
Trustee, the Securities Administrator, the Depositor, nor any agent of the
Depositor or the Securities Administrator 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 which such Certificateholders propose to
transmit, or if the Depositor or Servicer 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 Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such 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 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 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 located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Securities Administrator shall give prompt
written notice to the Certificateholders of any change in such location of any
such office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
under the laws of the United States or under the laws of one of the states
thereof and will each 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, or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any Person succeeding to the business of the Depositor,
shall be the successor of the Depositor, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor and any director, officer, employee, Affiliate or agent of the
Depositor may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor and any director, officer, employee or agent of the
Depositor shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates or any other unanticipated
or extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor may in its discretion undertake
any such action (or direct the Trustee to undertake such actions for the benefit
of the Certificateholders) that it may deem necessary or desirable in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, the Depositor and the
Trustee, if applicable, shall be entitled to be reimbursed therefor out of the
Distribution Account.
Section 6.04 Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is 90 days or more delinquent. The purchase price
therefor, which shall be deposited in the Distribution Account, shall be 100% of
the unpaid principal balance of such Mortgage Loan, plus all related accrued and
unpaid interest, and the amount of any unreimbursed Servicing Advances made by
the Servicer related to the Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default described in
the Servicing Agreement shall occur with respect to the Servicer then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Master Servicer may, or at the direction of Certificateholders
entitled to a majority of the Voting Rights the Master Servicer shall, by notice
in writing to the Servicer (with a copy to each Rating Agency), terminate all of
the rights and obligations of the Servicer under the Servicing Agreement and in
and to the Mortgage Loans serviced by the Servicer and the proceeds thereof. The
Holders of Certificates evidencing at least 66% of the Voting Rights of
Certificates affected by an Event of Default may waive such Event of Default;
provided, however, that (a) an Event of Default with respect to the Servicer's
obligation to make Monthly Advances may be waived only by all of the holders of
the Certificates affected by such Event of Default and (b) no such waiver is
permitted that would materially adversely affect any non-consenting
Certificateholder. On and after the receipt by the Servicer of such written
notice of termination, all authority and power of the Servicer hereunder,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Master Servicer. The Master Servicer is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise.
Section 7.02 Master Servicer to Act; Appointment of Successor.
Within 120 days after the Master Servicer gives, and the Servicer receives a
notice of termination pursuant to Section 7.01, the Master Servicer shall,
subject to and to the extent provided in Section 7.03, and subject to the rights
of the Master Servicer to appoint a successor Servicer pursuant to this Section
7.02, be the successor to the Servicer in its capacity as servicer under the
Servicing Agreement and the transactions set forth or provided for herein and in
such Servicing Agreement and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Servicer by the terms and
provisions of such Servicing Agreement and applicable law including the
obligation to make Monthly Advances or Servicing Advances pursuant to such
Servicing Agreement (it being understood and agreed that if the Servicer fails
to make an Advance, the Master Servicer shall do so unless a determination has
been made that such Advance would constitute a Nonrecoverable Monthly Advance or
a Nonrecoverable Servicing Advance). As compensation therefor, the Master
Servicer shall be entitled to all funds relating to the Mortgage Loans that the
Servicer would have been entitled to charge to the Collection Account if the
Servicer had continued to act under the Servicing Agreement including, if the
Servicer was receiving the Servicing Fee at the Servicing Fee Rate set forth in
the Servicing Agreement (as set forth in the Mortgage Loan Schedule with respect
to the related Mortgage Loans), such Servicing Fee and the income on investments
or gain related to the Collection Account.
Notwithstanding the foregoing, the Master Servicer may, if it shall
be unwilling to so act, or shall, if it is prohibited by applicable law from
making Monthly Advances and Servicing Advances pursuant to the Servicing
Agreement, or if it is otherwise unable to so act, or, at the written request of
Certificateholders entitled to a majority of the Voting Rights, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to the Servicer under the Servicing Agreement in the assumption of all
or any part of the responsibilities, duties or liabilities of the Servicer. No
such appointment of a successor to the Servicer hereunder shall be effective
until the Depositor shall have consented thereto. Any successor to the Servicer
shall be an institution which is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved
seller/servicer in good standing, which has a net worth of at least $25,000,000,
which is willing to service the Mortgage Loans and which executes and delivers
to the Depositor and the Master Servicer an agreement accepting such delegation
and assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of such terminated
Servicer, (other than liabilities of such terminated Servicer incurred prior to
termination of such Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior to
such assignment and delegation will not be qualified or reduced, as a result of
such assignment and delegation. Pending appointment of a successor to the
Servicer hereunder, the Master Servicer, unless the Master Servicer is
prohibited by law from so acting, shall, subject to this Section 7.02, act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the Master Servicer may make such arrangements for the compensation
of such successor out of payments on Mortgage Loans as it, the Depositor and
such successor shall agree; provided, however, that no such compensation shall
be in excess of the Servicing Fee Rate and amounts paid to the Servicer from
investments. The Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Master Servicer nor any other successor to the 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 by the failure of the predecessor Servicer to
deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it.
Any successor Servicer shall give notice to the Mortgagors of such
change of Servicer, in accordance with applicable federal and state law, and
shall, during the term of its service as Servicer, maintain in force the policy
or policies that the Servicer is required to maintain pursuant to the Servicing
Agreement.
Notwithstanding the foregoing, the Master Servicer may not terminate
the Servicer without cause.
Section 7.03 Master Servicer to Act as Servicer. In the event that
the Servicer shall for any other reason no longer be the Servicer, the Master
Servicer or another successor Servicer, shall thereupon assume all of the rights
and obligations of the predecessor Servicer hereunder arising thereafter
pursuant to Section 7.02.
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Master
Servicer shall give prompt written notice thereof to Certificateholders and to
each Rating Agency.
(b) Promptly after the occurrence of any Event of Default, the
Master Servicer shall transmit by mail to all Certificateholders and each Rating
Agency notice of each such Event of Default hereunder known to the Master
Servicer, unless such Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE, VARIOUS TAX MATTERS, SERVICING REPORTS AND PERIODIC
FILINGS
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case a Master
Servicer Event of Default has occurred and remains uncured, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance; provided, however, that:
(a) unless a Master Servicer Event of Default of which a Responsible
Officer of the Trustee obtains actual knowledge has occurred and is continuing,
the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable except for
the performance of the duties and obligations specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee, and the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement.
Section 8.02 [Reserved].
Section 8.03 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
Opinion of Counsel, 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 and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require indemnity satisfactory to the Trustee
against such cost, expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
Servicer or, if paid by the Trustee, shall be repaid by the Servicer upon demand
from the Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of a Master Servicer Event of Default, the Trustee shall not
be deemed to have knowledge of an Event of Default, until a Responsible Officer
of the Trustee shall have received written notice thereof;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby;
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder; and
(l) notwithstanding anything to the contrary in the Servicing
Agreement, the Trustee shall not consent to the Servicer's request of assigning
the Servicing Agreement or the servicing rights thereunder to any other party;
and
(m) should the Trustee deem the nature of any action required on its
part ot be unclear, the Trustee may require prior to such action that it be
provided by the Depositor with reasonable further instructions
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor or the Servicer of any funds paid to the Depositor
or the Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account or the Distribution Account by the Depositor or the
Servicer.
The Trustee shall have no responsibility (i) for filing or recording
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become and remains the
successor Servicer), (ii) to see to any insurance (unless the Trustee shall have
become the successor Servicer), or (iii) to confirm or verify the contents of
any reports or certificates of the Servicer, delivered to the Trustee pursuant
to this Agreement believed by the Trustee to be genuine and to have been signed
or presented by the proper party or parties.
Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.05 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's, Securities Administrator's and Master
Servicer's Fees and Expenses. As compensation for its activities under this
Agreement, the Trustee shall be paid its fee by the Securities Administrator
from the Securities Administrator's own funds pursuant to an agreement between
the Trustee and Securities Administrator. The Trustee , Securities Administrator
and shall have no lien on the Trust Fund for the payment of such fees. The
Trustee and any director, officer, employee, or agent of the Trustee shall be
indemnified by the Trust Fund and held harmless against any loss, liability, or
expense (including reasonable attorneys' fees) incurred in connection with any
claim or legal action relating to:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with the Servicing Agreement for which that
Servicer has completed performance of its obligation to indemnify the Trustee
pursuant to the Servicing Agreement, (ii) resulting from any breach of the
Original Loan Seller's obligations in connection with the Sale Agreement for
which it has completed performance of its obligation to indemnify the Trustee
pursuant to the Sale Agreement, or (iii) incurred because of willful
misfeasance, bad faith, or negligence in the performance of any of the Trustee's
duties under this Agreement. This indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trustee under this
Agreement. Without limiting the foregoing, except as otherwise agreed upon in
writing by the Depositor and the Trustee, and except for any expense,
disbursement, or advance arising from the Trustee's negligence, bad faith, or
willful misfeasance, the Trust Fund shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of
the Certificates, and
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee under
this Agreement or for any other expenses; provided, however, no expense shall be
reimbursed hereunder if it would not constitute an "unanticipated expense
incurred by the REMIC" within the meaning of the REMIC Provisions.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause any of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with this
Section 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its Affiliates or with
the Servicer and its Affiliates; provided, however, that such entity cannot be
an Affiliate of the Depositor or of the Servicer other than the Trustee in its
role as successor to the Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicer and each Rating
Agency not less than 60 days before the date specified in such notice, when,
subject to Section 8.09, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.09 meeting the qualifications set
forth in Section 8.07. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.07 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which shall
be delivered to the Trustee and one copy to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in duplicate, signed by such Holders or their
attorneys in fact duly authorized, one complete set of which shall be delivered
to the Trustee so removed and one complete set to the successor so appointed.
The successor trustee shall notify each Rating Agency of any removal of the
Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor and the predecessor trustee 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 all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.07
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. In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
of such succession or appointment and shall furnish to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably necessary for the Trustee to accurately and timely
report, pursuant to Section 8.15(g), the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons 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 Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the Trust
Fund or any part thereof, whichever is applicable, and, subject to the other
provisions of this Section 8.11, such powers, duties, obligations, rights and
trusts as the Trustee may consider appropriate. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.09 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in, and in
accordance with, the REMIC Provisions. In furtherance of such intention, the
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each Trust REMIC and that in such capacity it shall:
(a) prepare (and the Trustee shall sign) and file, in a timely
manner, a U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return
(Form 1066 or any successor form adopted by the Internal Revenue Service) and
prepare (and the Trustee shall sign) and file with the Internal Revenue Service
and applicable state or local tax authorities income tax or information returns
for each taxable year with respect to each Trust REMIC containing such
information and at the times and in the manner as may be required by the Code or
state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby;
(b) within thirty days of the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) deliever or cause to be delieved the federal taxpayer
identification number of the trust on an IRS Form W-9 of the trust to the Swap
Provider and the Cap Provider at the time the Interest Rate Swap Agreement and
the Cap Agreement are entered into and, if requested by the Swap Provider or Cap
Provider, an applicable IRS Form W-8IMY;
(d) make an election that each of Pooling Tier REMIC-1, Pooling Tier
REMIC-2, the Lower Tier REMIC and the Upper Tier REMIC be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law);
(e) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(f) provide information necessary for the computation of tax imposed
on the Transfer of a Residual Certificate to a Person that is a "Non-Permitted
Transferee", or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax);
(g) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are Outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(h) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(i) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on each Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings);
(j) cause federal, state or local income tax or information returns
to be signed by the Trustee or, if required by applicable tax law, the
Securities Administrator or such other Person as may be required to sign such
returns by the Code or state or local laws, regulations or rules;
(k) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information; and
(l) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of each Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of either Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Holder of the largest Percentage Interest of the Class R
Certificates shall act as Tax Matters Person for each Trust REMIC, within the
meaning of Treasury Regulations Section 1.860F-4(d), and the Securities
Administrator is hereby designated as agent of such Certificateholder for such
purpose (or if the Securities Administrator is not so permitted, such Holder
shall be the Tax Matters Person in accordance with the REMIC Provisions). In
such capacity, the Securities Administrator shall, as and when necessary and
appropriate, represent each Trust REMIC in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of each
Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any Trust
REMIC, and otherwise act on behalf of each Trust REMIC in relation to any tax
matter or controversy involving it. The Securities Administrator shall treat the
rights of the Class CE Certificateholders to receive amounts in the Excess
Reserve Fund Account and the Supplemental Interest Account (subject, other than
in the case of the Class CE Certificates, to the obligation to pay Basis Risk
Carry Forward Amounts and, without duplication, Upper Tier Carry Forward
Amounts) and the rights of the Offered Certificateholders to receive Basis Risk
Carry Forward Amounts and, without duplication, Upper Tier Carry Forward Amounts
as the beneficial ownership of interests in a grantor trust, and not as an
obligation of any Trust REMIC created hereunder, for federal income tax
purposes. The Securities Administrator shall file or cause to be filed with the
IRS together with Form 1041 or such other form as may be applicable and shall
furnish or cause to be furnished, to the Class CE Certificateholders and the
Offered Certificateholders, the respective amounts described above that are
received, in the time or times and in the manner required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value to each Class
of Certificates of the right to receive Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account and Basis Risk Carry Forward Amounts or, without
duplication, Upper Tier Carry Forward Amounts from the Supplemental Interest
Account. Unless otherwise advised by the Depositor, for federal income tax
purposes, the Securities Administrator is hereby directed to assign a value of
zero to the right of each Holder allocating the purchase price of an initial
Offered Certificateholder between such right and the related Upper Tier Regular
Interest. Thereafter, the Depositor shall provide to the Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under this
Agreement; provided, however, that the Depositor shall not be required to
provide any information regarding the Mortgage Loans after the Closing Date or
any information that the Servicer is required to provide to the Securities
Administrator. The Depositor hereby indemnifies the Securities Administrator for
any losses, liabilities, damages, claims, or expenses of the Securities
Administrator arising from any errors or miscalculations of the Securities
Administrator that result from any failure of the Depositor to provide, pursuant
to this paragraph, accurate information or data to the Securities Administrator
on a timely basis.
The Securities Administrator shall not (i) cause the creation of any
interests in any Trust REMIC other than the regular and residual interests set
forth in the Preliminary Statement, (ii) receive any amount representing a fee
or other compensation for services (except as otherwise permitted by this
Agreement) or (iii) otherwise knowingly or intentionally take any action, cause
the Trust Fund to 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, could (i) endanger the status of any Trust REMIC as a
REMIC or (ii) result in the imposition of a tax upon any Trust REMIC or the
Trust Fund (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
Trust REMIC set forth in Section 860G(d) of the Code, or the tax on "net income
from foreclosure property") unless the Securities Administrator receives an
Opinion of Counsel (at the expense of the Trust Fund, but in no event at the
expense of the Securities Administrator), to the effect that the contemplated
action will not, with respect to the Trust Fund, result in the imposition of a
tax upon either Trust REMIC created hereunder or endanger the status of any
Trust REMIC.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Pooling-Tier REMIC 1, as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on any Trust REMIC pursuant to Sections 23153 and 24874
of the California Revenue and Taxation Code, if not paid as otherwise provided
for herein, the tax shall be paid by (i) the Securities Administrator if such
tax arises out of or results from negligence of the Securities Administrator in
the performance of any of its obligations under this Agreement, (ii) the
Servicer, in the case of any such minimum tax, and otherwise if such tax arises
out of or results from a breach by the Servicer of any of its obligations under
the Servicing Agreement, (iii) the Original Loan Seller if such tax arises out
of or results from the Original Loan Seller's obligation to repurchase a
Mortgage Loan pursuant to the Sale Agreement or (iv) in all other cases, or if
the Securities Administrator, the Servicer or the Original Loan Seller fails to
honor its obligations under the preceding clause (i), (ii), or (iii), any such
tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 4.01(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act as specifically required herein, and the Securities
Administrator shall comply with any directions of the Depositor or the Servicer
stating that such directions are being given to assure such continuing
treatment. In particular, the Securities Administrator shall not (a) sell or
authorize 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
purchase or repurchase of the Mortgage Loans pursuant to this Agreement or (b)
accept any contribution to any Trust REMIC after the Startup Day without receipt
of an Opinion of Counsel that such action described in clause (a) or (b) will
not result in the imposition of a tax on any Trust REMIC or cause any Trust
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Section 8.13 Annual Statement as to Compliance. The Master Servicer
and Securities Administrator shall deliver (or otherwise make available), to the
Depositor, the Rating Agencies on or before March 1st of each calendar year,
commencing in 2007, an Officer's Certificate stating, as to each signatory
thereof, that (i) a review of the activities of the Master Servicer and
Securities Administrator, as applicable, during the preceding calendar year and
of its performance under this Agreement has been made under such officers'
supervision, and (ii) to the best of such officers' knowledge, based on such
review, the Master Servicer and Securities Administrator has fulfilled all of
its obligations under this Agreement in all material respects, throughout such
year, or, if there has been a default in the fulfillment of any such obligation
in any material respect, specifying each such default known to such officers and
the nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review such Officer's Certificate and, if
applicable, consult with the Master Servicer and Securities Administrator, as
applicable, as to the nature of any defaults by the Master Servicer and
Securities Administrator, as applicable, in the fulfillment of any of the Master
Servicer's and Securities Administrator's obligations, as applicable. The
obligations of the Master Servicer and Securities Administrator, as applicable,
under this Section apply to each Master Servicer and Securities Administrator,
that acted as Master Servicer and Securities Administrator during the applicable
period, whether or not such Person is acting as the Master Servicer and
Securities Administrator at the time such Officer's Certificate is required to
be delivered. The Master Servicer and Securities Administrator shall be required
to cause the delivery of any Officer's Certificate required by this Section by
March 15th in any given year so long as it has not received written confirmation
from the Depositor that a Form 10-K is not required to be filed in respect of
the Trust for the preceding calendar year.
Section 8.14 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report.
(a) Not later than March 1st of each calendar year commencing in
2007, the Master Servicer and Securities Administrator shall deliver, and shall
cause each Subcontractor utilized by the Master Servicer and Securities
Administrator and determined by the Master Servicer and Securities
Administrator, as applicable, pursuant to Section 8.01 to be "participating in a
servicing function" within the meaning of Item 1122 of Regulation AB (in each
case, a "Servicing Function Participant"), to deliver, each at its own expense,
to the Depositor, a report on an assessment of compliance with the Servicing
Criteria applicable to it that contains (A) a statement by such party of its
responsibility for assessing compliance with the Servicing Criteria applicable
to it, (B) a statement that such party used the Servicing Criteria to assess
compliance with the applicable Servicing Criteria, (C) such party's assessment
of compliance with the applicable Servicing Criteria as of and for the period
ending the end of the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 8.15, including, if there has been any material instance of
noncompliance with the applicable 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 Person's
assessment of compliance with the applicable Servicing Criteria as of and for
such period. Each such assessment of compliance report shall be addressed to the
Depositor and signed by an authorized officer of such Person, and shall address
each of the applicable Servicing Criteria set forth on Exhibit P hereto, or as
set forth in the notification furnished to the Depositor pursuant to Section
8.14(c). The Master Servicer and Securities Administrator hereby acknowledge and
agree that its assessments of compliance will cover the items identified on
Exhibit P hereto as being covered by the Master Servicer and Securities
Administrator, as applicable. The parties to this Agreement acknowledge that
where a particular Servicing Criteria has multiple components, each party's
assessment of compliance and related attestation of compliance) will relate only
to those components that are applicable to such party. Promptly after receipt of
each such report on assessment of compliance, the Depositor shall review each
such report and, if applicable, consult with the Master Servicer or Securities
Administrator, as applicable, as to the nature of any material instance of
noncompliance with the Servicing Criteria applicable to it (and each Servicing
Function Participant engaged or utilized by the Master Servicer or Securities
Administrator, as applicable), as the case may be. The Master Servicer or
Securities Administrator, as applicable, or any Servicing Function Participant
shall be required to cause the delivery of any such assessments by March 15th in
any given year so long as it has not received written confirmation from the
Depositor that a Form 10-K is not required to be filed in respect of the Trust
for the preceding calendar year.
(b) Not later than March 1st of each calendar year commencing in
2007, the Master Servicer and Securities Administrator shall cause, and the
Master Servicer and Securities Administrator shall cause each Servicing Function
Participant utilized by such Person, to cause, each at its own expense, a
registered public accounting firm (which may also render other services to such
party) and that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Depositor, with a copy to the Rating
Agencies, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such Person, which includes an assertion
that such Person has complied with the Servicing Criteria applicable to it
pursuant to Section 8.14(a) and (ii) on the basis of an examination conducted by
such firm in accordance with standards for attestation engagements issued or
adopted by the PCAOB, that attests to and reports on such Person's assessment of
compliance with the Servicing Criteria applicable to it. 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. Each
such related accountant's attestation report shall be made in accordance with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Such report must be available for general use and not contain
restricted use language. Promptly after receipt of each such accountants'
attestation report, the Depositor shall review the report and, if applicable,
consult with such Person as to the nature of any defaults by such Person (and
each Servicing Function Participant engaged or utilized by such Person), as the
case may be, in the fulfillment of any of the Master Servicer's, Securities
Administrator's or Servicing Function Participant's obligations hereunder or
under. The Master Servicer, Securities Administrator or Servicing Function
Participant shall not be required to cause the delivery of any such attestation
required by this paragraph until March 15th in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
(c) No later than February 1 of each fiscal year, commencing in
2007, the Master Servicer and Securities Administrator shall notify the
Depositor as to the name of each Servicing Function Participant utilized by it
during the preceding calendar year, and each such notice will specify what
specific Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Function Participant in each case, to the
extent of any change from the prior year's notice, if any. When the Master
Servicer and Securities Administrator submit its assessment pursuant to Section
8.14(a), the Master Servicer and Securities Administrator will also at such time
include the assessment (and related attestation pursuant to Section 8.14(b)) of
each Servicing Function Participant utilized by it.
Section 8.15 Periodic Filings. (a) The Master Servicer and
Securities Administrator shall reasonably cooperate with the Depositor in
connection with the reporting requirements of the Trust under the Exchange Act.
The Securities Administrator shall prepare for execution by the Master Servicer
on behalf of the Depositor any Form 8-K (other than any Form 8-K related to the
filing of this Agreement and any amendments thereto), Form 10-D and Form 10-K
required by the Exchange Act and the rules and regulations of the Commission
thereunder, in order to permit the timely filing thereof, and the Securities
Administrator shall file (via the Commission's Electronic Data Gathering and
Retrieval System) such Forms executed by the Depositor.
(b) Within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Securities Administrator shall
prepare and file, and the Master Servicer shall sign, on behalf of the Trust any
Form 10-D required by the Exchange Act, in form and substance as required by the
Exchange Act. The Securities Administrator shall file each Form 10-D with a copy
of the related Monthly Statement attached 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 to the Depositor and the Securities
Administrator by the parties set forth on Exhibit Q and directed and approved by
the Depositor pursuant to the following paragraph and the Securities
Administrator shall compile such disclosure pursuant to the following paragraph.
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.
As set forth on Exhibit Q hereto, within 5 calendar days after the
related Distribution Date, (i) certain parties to this Agreement shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known by such applicable parties, in ▇▇▇▇▇-compatible form, or in such
other Form as otherwise agreed upon by the Securities Administrator and such
party, the Form and substance of any Additional Form 10-D Disclosure, if
applicable and (ii) the Depositor will approve, as to the Form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-D
Disclosure on Form 10-D. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with any Additional Form 10-D Disclosure on Form 10-D pursuant to
this Section 8.12(b).
After preparing the Form 10-D, the Securities Administrator shall
forward electronically a draft copy of the Form 10-D to the Depositor for review
and verification by the Depositor. No later than two Business Days following the
10th calendar day after the related Distribution Date, a duly authorized
representative of the Master Servicer in charge of the master servicing function
shall sign the Form 10-D and return an electronic or fax copy of such signed
Form 10-D (with an original executed hard copy to follow by overnight mail) to
the Securities Administrator and the Depositor, and no later than 5:00 p.m. New
York City time on the 15th calendar day after such Distribution Date, the
Securities Administrator shall file such Form 10-D with the Commission. 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 8.12(f)(ii). Promptly (but no later than one Business Day) after filing
with the Commission, the Securities Administrator will make available on its
internet website (located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) a final executed copy of each Form
10-D prepared by the Securities Administrator. The signing party at the Master
Servicer can be contacted at the Master Servicer's address for notices set forth
in Section 12.05(b)(2)(a), or such other address as to which the Master Servicer
has provided prior written notice to the Securities Administrator. The Depositor
acknowledges that the performance by the Securities Administrator of its duties
under this Section 8.12(b) related to the timely preparation and filing of Form
10-D is contingent upon each Servicer, the Securities Administrator, the Master
Servicer, the Depositor and any other Person obligated to provide Additional
Form 10-D Disclosure as set forth on Exhibit U hereto strictly observing all
applicable deadlines in the performance of their duties under this Section
8.12(b). 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-D filed by the Securities
Administrator. The Securities Administrator shall have no liability for any
loss, expense, damage, or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-D, where such failure results
from the Securities Administrator's inability or failure to obtain or receive,
on a timely basis, any information from any party hereto (other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such Form 10-D,
not resulting from its own negligence, bad faith or willful misconduct.
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 or
caused to be filed all such required reports during the preceding 12 months and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing no later than the
fifth calendar day after the related Distribution Date with respect to the
filing of a report on Form 10-D if the answer to the questions should be no. The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(c) On or before 90 days after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act (the "10-K
Filing Deadline"), commencing in March 2007, the Securities Administrator shall
prepare and file on behalf of the Trust a Form 10-K, in form and substance as
required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Securities
Administrator within the applicable time frames set forth in this Agreement or
the Sale Agreement and the Servicing Agreement, (i) an annual compliance
statement for the Securities Administrator, the Master Servicer, the Servicer
and each Subservicer engaged by the Servicer, as described under Section 8.13,
(ii)(A) and under the Servicing Agreement the annual reports on assessment of
compliance with servicing criteria for the Securities Administrator, the Master
Servicer, the Servicer, each Subservicer engaged by the Servicer and each
Servicing Function Participant utilized by the Servicer, Securities
Administrator or the Master Servicer, as described under Section 8.14 and under
the Servicing Agreement, and (B) if any such report on assessment of compliance
with servicing criteria identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or such report on
assessment of compliance with servicing criteria is not included as an exhibit
to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included, (iii)(A) the registered public
accounting firm attestation report for the Master Servicer, the Securities
Administrator, the Servicer, each Subservicer engaged by the Servicer and each
Servicing Function Participant utilized by the Servicer, as described under
Section 8.14 and under the Sale Agreement, and (B) if any registered public
accounting firm attestation report described under Section 8.14 identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included, and
(iv) a certification in the form attached hereto as Exhibit J, with such changes
as may be necessary or appropriate as a result of changes promulgated by the
Commission (the "Sarbanes Certification"), which shall be signed by the senior
officer of the Depositor in charge of securitization. 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 to
the Depositor and the Securities Administrator by the parties set forth on
Exhibit R and directed and approved by the Depositor pursuant to the following
paragraph and the Securities Administrator shall compile such disclosure
pursuant to the following paragraph. The Securities Administrator will have no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-K Disclosure, except as set forth in the next paragraph.
As set forth on Exhibit R hereto, no later than March 1 of each year
(or, in the case of the Servicer, March 5th of each year) that the Trust is
subject to the Exchange Act reporting requirements, commencing in 2007, the
parties, to the extent described on Exhibit R, shall be required to provide to
the Securities Administrator and the Depositor, to the extent known by such
applicable parties, in ▇▇▇▇▇-compatible form, or in such other form as otherwise
agreed upon by the Securities Administrator and such party, the form and
substance of any Additional Form 10-K Disclosure, the form and substance of the
Additional Form 10-K Disclosure described on Exhibit R applicable to such party
(and shall include with such Additional Form 10-K Disclosure an Additional
Disclosure Notification in the form attached hereto as Exhibit T), and the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit R (other than with respect to
the Securities Administrator) of their duties under this paragraph or
proactively solicit from such parties any Additional Form 10-K Disclosure
information; provided, however, the Securities Administrator shall cooperate
with the Depositor in a reasonable manner in order for the Depositor to comply
with its reporting obligations under the Exchange Act as set forth in Section
8.15(a). The Depositor will be responsible for any reasonable fees and expenses
assessed or incurred by the Trustee in connection with including any Additional
Form 10-K Disclosure on Form 10-K pursuant to this paragraph. The Securities
Administrator shall compile all such information provided to it in a Form 10-K
prepared by it.
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a copy of the Form 10-K to the Depositor for approval and
execution. 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
and/or filing any such Form 10-K. No later than 5:00 p.m. EST on the 4th
Business Day prior to the 10-K Filing Deadline, a senior officer of the Master
Servicer on behalf of the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Securities Administrator. 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 8.15(e)(ii). 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. The Depositor acknowledges that the performance by
the Securities Administrator of its duties under this Section 8.15(c) related to
the timely preparation and filing of Form 10-K is contingent upon the Servicer
(and any Subservicer or Servicing Function Participant engaged by the Servicer)
and the Depositor observing all applicable deadlines in the performance of their
duties under this Section 8.15(c), Section 8.15(d), Section 8.13 and Section
8.14. The Securities Administrator shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-K, where such failure results from the
Securities Administrator's inability or failure to receive, on a timely basis,
any information from any party hereto or any Subservicer or Servicing Function
Participant engaged by any such party hereto (other than the Securities
Administrator or any Servicing Function Participant utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such Form 10-K,
not resulting from its own negligence, bad faith or willful misconduct.
(d) In connection with the execution of a Sarbanes Certification,
the Securities Administrator shall sign a certification (in the form attached
hereto as Exhibit K, with such changes as may be necessary or appropriate as a
result of changes promulgated by the Commission) for the benefit of the
Depositor and its officers, directors and Affiliates. Each such certification
shall be delivered to the Depositor no later than March 10th of each year (or if
such day is not a Business Day, the immediately preceding Business Day) and the
Depositor shall deliver the Sarbanes Certification no later than the time set
forth for the delivery to the Securities Administrator of the signed Form 10-K
pursuant to Section 8.15(c) for such year. In the event that prior to the filing
date of the Form 10-K in March of each year, the Securities Administrator has
actual knowledge of information material to the Sarbanes Certification, it shall
promptly notify the Master Servicer, the Depositor and each of the other parties
signing the certifications. In addition, the Securities Administrator shall
indemnify and hold harmless the Depositor and the Sponsor and their officers,
directors, employees, agents and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon any breach of the Securities Administrator's obligations under this Section
8.15(d) or the Securities Administrator's material misstatement, omission,
negligence, bad faith or willful misconduct in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless any indemnified party, then the Securities Administrator agrees in
connection with a breach of the Securities Administrator's obligations under
this Section 8.15(d) or the Securities Administrator's material misstatement,
omission, negligence, bad faith or willful misconduct in connection therewith
that it shall contribute to the amount paid or payable by the Depositor and the
Sponsor as a result of the losses, claims, damages or liabilities of the
Depositor and the Sponsor in such proportion as is appropriate to reflect the
relative fault of the Depositor and the Sponsor on the one hand and the
Securities Administrator on the other.
(e) (i) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. 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 with respect to the Trust, with a
copy to the Depositor. At the start of any fiscal year, including any fiscal
year after the filing of a Form 15 Suspension Notification, if the number of
Holders of the Offered Certificates of record exceeds the number set forth in
Section 15(d) of the Exchange Act or the regulations promulgated pursuant
thereto which would cause the Trust to again become subject to the reporting
requirements of the Exchange Act, the Securities Administrator shall recommence
preparing and filing reports on Form 10-K, Form 10-D and Form 8-K as required
pursuant to this Section 8.15 and the parties hereto shall again have the
obligations set forth in this Section 8.15.
(ii) In the event that the Securities Administrator is unable to
timely file with the Commission all or any required portion of any Form
8-K, Form 10-D or Form 10-K required to be filed pursuant to 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, the Securities Administrator will promptly notify the
Depositor. In the case of Form 10-D and Form 10-K, the Depositor and
Securities Administrator will thereupon prepare and file, and the other
parties shall cooperate in connection with such preparation and filing, a
Form 12b-25 and a Form 10-D/A and Form 10-K/A as applicable, pursuant to
Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all required Form 8-K Disclosure
Information and, upon the approval and direction of the Depositor, include
such disclosure information on the next succeeding Form 10-D. In the event
that any previously filed Form 8-K, Form 10-D or Form 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 notify the Depositor and
such other parties to the transaction as are affected by such amendment,
and the Depositor and the Securities Administrator shall prepare and file,
and such other parties will cooperate in connection with such preparation
and filing, any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form
15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall
be signed by an officer or a senior officer of the Master Servicer on
behalf of the Depositor. The Depositor acknowledges that the performance
by the Securities Administrator of its duties under this Section 8.15(e)
related to the timely preparation and filing of Form 15, a Form 12b-25 or
any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon the
Servicer and the Depositor observing all applicable deadlines in the
performance of their duties under this Section 8.15 and Sections 8.13 and
8.14. The Securities Administrator shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to
properly prepare and/or timely file any such Form 15, Form 12b-25 or any
amendments to Form 8-K, Form 10-D or Form 10-K, where such failure results
from the Securities Administrator's inability or failure to obtain or
receive, on a timely basis, any information from any party hereto or any
Subservicer or any Servicing Function Participant engaged by any such
party hereto or under the Servicing Agreement (other than the Securities
Administrator or any Servicing Function Participant utilized by the
Securities Administrator) needed to prepare, arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form
10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and
also if requested by the Depositor, the Securities Administrator shall prepare
and file on behalf of the Trust any Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K (other
than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported
to the Depositor and the Securities Administrator by the parties set forth on
Exhibit R and directed and approved by the Depositor pursuant to the following
paragraph. 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.
As set forth on Exhibit S hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business (New York City time) on the 2nd Business Day after the occurrence of a
Reportable Event the parties, to the extent described on Exhibit S, shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known by such applicable parties, in ▇▇▇▇▇-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Form 8-K Disclosure Information, the form
and substance of the Form 8-K Disclosure Information described on Exhibit S
applicable to such party (and shall include with such Form 8-K Disclosure
Information, an Additional Disclosure Notification in the form attached hereto
as Exhibit T, and the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Securities Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
S (other than with respect to the Securities Administrator) of their duties
under this paragraph or proactively solicit or procure from such parties any
Form 8-K Disclosure Information; provided, however, the Securities Administrator
shall cooperate with the Depositor in a reasonable manner in order for the
Depositor to comply with its reporting obligations under the Exchange Act as set
forth in Section 8.15(a). 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. The Securities Administrator shall compile all such
information provided to it in a Form 8-K prepared by it.
After preparing the Form 8-K, the Securities Administrator shall no
later than 12:00 noon (New York City time) on the 3rd Business Day after the
Reportable Event but in no case without having had notice for 24 hours forward
electronically a draft copy of the Form 8-K to the Depositor for review. No
later than 12:00 noon (New York City time) on the 4th Business Day after the
Reportable Event, an officer of the Master Servicer on behalf of the Depositor
shall sign the Form 8-K and return an electronic or fax copy of such signed Form
8-K (with an original executed hard copy to follow by overnight mail) to the
Securities Administrator. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator will
follow the procedures set forth in this Section 8.15(e)(ii). 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 signing
party at the Master Servicer can be contacted at the Master Servicer's address
for notices set forth in Section 12.05, or such other address as to which the
Depositor has provided prior written notice to the Securities Administrator. The
Depositor acknowledges that the performance by the Securities Administrator of
its duties under this Section 8.15(e) related to the timely preparation,
arrangement for execution and filing of Form 8-K is contingent upon the Servicer
and the Depositor observing all applicable deadlines in the performance of their
duties under this Section 8.15(e). The Securities Administrator shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare and/or timely file 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 party hereto
(other than the Securities Administrator or any Subcontractor utilized by the
Securities Administrator) needed to prepare, arrange for execution or file such
Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(f) The Securities Administrator shall have no liability for any
loss, expense, damage or claim arising out of or resulting from (i) the accuracy
or inaccuracy of any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information (excluding any information therein
provided by the Securities Administrator or any Subcontractor utilized by the
Securities Administrator) provided to the Securities Administrator in connection
with the preparation of Forms 10-D, 10-K and 8-K pursuant to this Section 8.15,
or (ii) the failure of the Depositor to approve for filing any Forms 10-D, 10-K
and 8-K required to be prepared by the Securities Administrator pursuant to this
Section 8.15, in either case, not resulting from the Securities Administrator's
own negligence, bad faith or misconduct.
Section 8.16 Tax Classification of the Excess Reserve Fund Account,
the Supplemental Interest Account and the Interest Rate Swap Agreement. For
federal income tax purposes, the Securities Administrator shall treat the Excess
Reserve Fund Account, the Supplemental Interest Account and the Interest Rate
Swap Agreement as beneficially owned by the holders of the Class CE Certificates
and shall treat such portion of the Trust Fund as a grantor trust, within the
meaning of subpart E, Part I of subchapter J of the Code. The Securities
Administrator shall treat the rights that each Class of Offered Certificates has
to receive payments of Basis Risk Carry Forward Amounts from the Excess Reserve
Fund Account and, to the extent not paid from the Excess Reserve Fund Account
from the Supplemental Interest Account (including, without duplication, Upper
Tier Carry Forward Amounts), and the obligation to pay Class IO shortfalls to
the Supplemental Interest Account as rights and obligations under a notional
principal contract between the Class CE Certificateholders and each such Class
and beneficially owned by each such Class through the grantor trust.
Accordingly, each Class of Offered Certificates will be comprised of two
components - an Upper Tier REMIC Regular Interest and an interest in an interest
rate cap contract, subject to the obligation to pay Class IO Shortfalls, and the
Class CE Certificates will be comprised of six components - two Upper Tier REMIC
Regular Interests (the Class CE Interest and the Class IO Interest), an interest
in the Excess Reserve Fund Account, subject to the obligation to pay Basis Risk
Carry Forward Amounts, and ownership of the Supplemental Interest Account, the
Interest Rate Swap Agreement and the right to receive Class IO Shortfalls,
subject to the obligation to pay Basis Risk Carry Forward Amounts (including,
without duplication, Upper Tier Carry Forward Amounts), Net Swap Payments and
Swap Termination Payments. The Securities Administrator shall allocate the issue
price for a Class of Certificates among the respective components for purposes
of determining the issue price of each Upper Tier REMIC Regular Interest
component based on information received from the Depositor. Unless otherwise
advised by the Depositor in writing, for federal income tax purposes, the
Securities Administrator is hereby directed to assign a value of zero to the
right of each Holder of an Offered Certificate to receive the related Basis Risk
Carry Forward Amount for purposes of allocating the purchase price of an initial
Offered Certificateholder between such right and the related Upper Tier Regular
Interest.
Holders of Offered Certificates shall also be treated as having
agreed to pay, on each Distribution Date, to the Holders of the Class CE
Certificates an aggregate amount equal to the excess, if any, of (i) Net Swap
Payments and Swap Termination Payments (other than Defaulted Swap Termination
Payments) over (ii) the sum of amounts payable on the Class CE Interest
available for such payments and amounts payable on the Class IO Interest (such
excess, a "Class IO Shortfall"), first from interest and then from principal
distributable on the Offered Certificates. A Class IO Shortfall payable from
interest collections shall be allocated pro rata among such Offered Certificates
based on the amount of interest otherwise payable to such Class of Offered
Certificates, and a Class IO Shortfall payable from principal collections shall
be allocated in reverse sequential order beginning with the most subordinate
Class of Offered Certificates then Outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of Offered
Certificates in respect of the corresponding Upper Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class CE Certificates
through the Supplemental Interest Account.
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of each Servicer's obligations under the related
servicing agreement, and (except as set forth below) shall use its reasonable
good faith efforts to cause such Servicer to duly and punctually perform its
duties and obligations thereunder. Upon the occurrence of an Event of Default of
which a Responsible Officer of the Master Servicer has actual knowledge, the
Master Servicer shall promptly notify the Securities Administrator and the
Trustee and shall specify in such notice the action, if any, the Master Servicer
plans to take in respect of such default. So long as an Event of Default shall
occur and be continuing, the Master Servicer shall take the actions specified in
Article VII.
If (i) a Servicer reports a delinquency on a monthly report and (ii)
such Servicer, by 11 a.m. (New York Time) on the related Remittance Date,
neither makes an Advance nor provides the Securities Administrator and the
Master Servicer with an Officer's Certificate certifying that such an Advance
would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, then
the Master Servicer shall, pursuant to section 7.02 in its capacity as successor
servicer, deposit in the Distribution Account not later than the Business Day
immediately preceding the related Distribution Date an Advance in an amount
equal to the difference between (x) with respect to each Monthly Payment due on
a Mortgage Loan that is delinquent (other than Relief Act Interest Shortfalls)
and for which the related Servicer was required to make an Advance pursuant to
this Agreement and (y) amounts deposited in the Collection Account to be used
for Advances with respect to such Mortgage Loan, except to the extent the Master
Servicer determines any such Advance to be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. Subject to the foregoing and Section 7.02, the
Master Servicer shall continue to make such Advances for so long as the related
Servicer is required to do so under the related Servicing Agreement. If
applicable, on the Business Day immediately preceding the Distribution Date, the
Master Servicer shall deliver an Officer's Certificate to the Trustee stating
that the Master Servicer elects not to make an Advance in a stated amount and
detailing the reason(s) it deems the Advance to be a Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance. Any amounts deposited by the Master
Servicer pursuant to this Section 9.01 shall be net of the Servicing Fee for the
related Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicers as required hereunder (including costs associated with (i) termination
of any Servicer, (ii) the appointment of a successor servicer or (iii) the
transfer to and assumption of, the servicing by the Master Servicer) and shall,
to the extent permitted by the related Servicing Agreement, seek reimbursement
therefor initially from the terminated Servicer. In the event the full costs
associated with the transition of servicing responsibilities to the Master
Servicer or to a successor servicer are not paid for by the predecessor or
successor Servicer (provided such successor Servicer is not the Master
Servicer), the Master Servicer may be reimbursed therefor by the Trust for costs
incurred by the Master Servicer associated with any such transfer of servicing
duties from the Servicer to the Master Servicer or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of any Servicer it replaces or for any errors or omissions of such
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by any Servicer of such Servicer's rights and
obligations under this Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. 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, directors, 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 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Servicers, the
Depositor, the Securities Administrator, the Custodian and the Trustee, for the
benefit of the Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all
necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) [Reserved.]
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery of
this Agreement. The Master Servicer shall indemnify the Servicers, the
Depositor, the Securities Administrator and the Trustee and hold them harmless
against any loss, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and other reasonable costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a material breach of the Master Servicer's representations and
warranties contained in Section 9.03(a) above. It is understood and agreed that
the enforcement of the obligation of the Master Servicer set forth in this
Section 9.03 to indemnify the Servicers, the Depositor, the Securities
Administrator and the Trustee constitutes the sole remedy of the Servicers, the
Depositor, the Securities Administrator and the Trustee, respecting a breach of
the foregoing representations and warranties. Such indemnification shall survive
any termination of the Master Servicer as Master Servicer hereunder and any
termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Servicers,
Depositor, the Master Servicer, Securities Administrator or the Trustee or
notice thereof by any one of such parties to the other parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from a Servicer or required to
be made by the Master Servicer under the terms of this Agreement which continues
unremedied for a period of two (2) 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 by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or to the Master Servicer and Trustee by
the holders of Certificates evidencing at least 25% of the Voting Rights;
provided that the cure periods, for the failure to comply with the requirements
set forth in Section 8.12 with respect to deliverable of additional disclosure
or with respect to filings of any Forms 8-k, 10-D and 10-k required by the
Exchange Act, shall not exceed the lesser of ten (10) calendar days or such
period in which any applicable Form 8-K, 10-D and 10-K required by the Exchange
Act can be timely filed (without taking into account any extensions);
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days; or
(f) except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Securities Administrator, the Trustee and the Depositor.
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the Trustee
may have at law or equity to damages, including injunctive relief and specific
performance, the Trustee, by notice in writing to the Master Servicer, may, and
upon the request of the Holders of Certificates representing at least 51% of the
Voting Rights shall, terminate with cause all the rights and obligations of the
Master Servicer under this Agreement. Further, only the Depositor can terminate
with respect to a failure to comply with Exchange Act reporting.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, the
Master Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee any and all documents and other instruments related to
the performance of its duties hereunder as the Master Servicer and, place in
such successor's possession all such documents with respect to the master
servicing of the Mortgage Loans and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, at the Master Servicer's sole expense. The Master Servicer shall
cooperate with the Trustee and such successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including without limitation, the transfer to such successor master servicer for
administration by it of all cash amounts which shall at the time be credited to
the Distribution Account or are thereafter received with respect to the Mortgage
Loans.
All reasonable out-of-pocket costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a terminated Master
Servicer, including, without limitation, any such costs or expenses associated
with the complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data as may be required by the Trustee to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or any successor Master Servicer appointed pursuant to
Section 9.06) to master service shall be paid by the terminated Master Servicer;
provided, however, that to the extent not previously reimbursed by the
terminated Master Servicer, such fees and expenses shall be payable to the
Trustee pursuant to Section 8.05.
Upon the occurrence of a Master Servicer Event of Default, the
Trustee shall provide the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a successor master servicer in the event the
Trustee should succeed to the duties of the Master Servicer as set forth herein.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights waive any default by the Master Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Master Servicer Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Master Servicer under
this Agreement prior to the termination of the Master Servicer. Any successor
shall be a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that in no event shall the master
servicing compensation paid to such successor master servicer exceed that paid
to the Master Servicer hereunder. Notwithstanding anything herein to the
contrary, in no event shall the Trustee be liable for any Master Servicing Fee
or for any differential in the amount of the Master Servicing Fee paid hereunder
and the amount necessary to induce any successor master servicer to act as
successor master servicer under this Agreement and the transactions set forth or
provided for herein. In the event that the Master Servicer's duties,
responsibilities and liabilities under this Agreement are terminated, the Master
Servicer shall continue to discharge its duties and responsibilities hereunder
until the effective date of such termination with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement and shall
take no action whatsoever that might impair or prejudice the rights of its
successor. The termination of the Master Servicer shall not become effective
until a successor shall be appointed pursuant hereto and shall in no event (i)
relieve the Master Servicer of responsibility for the representations and
warranties made pursuant to Section 9.03(a) hereof and the remedies available to
the Trustee under Section 9.03(b) hereof, it being understood and agreed that
the provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment within
90 days of the time the Trustee receives the resignation of the Master Servicer,
the Trustee shall be the successor Master Servicer in all respects under this
Agreement and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Advances; provided, however, that any failure to perform any
duties or responsibilities caused by the Master Servicer's failure to provide
information required by this Agreement shall not be considered a default by the
Trustee hereunder. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability herein granted to the Master
Servicer. As compensation therefor, the Trustee shall be entitled to receive the
compensation, reimbursement and indemnities otherwise payable to the Master
Servicer, including the fees and other amounts payable pursuant to Section 9.07
hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption as
successor master servicer of such obligations, duties and responsibilities.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be entitled
to income earned on investments of funds in the Distribution Account.
Section 9.08 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form 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 to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master Servicer
shall (i) be a Person (or have an Affiliate) that is qualified and approved to
service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac (provided further that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it unless the Master
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee shall have assumed, or a
successor master servicer satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Trustee. Even if ▇▇▇▇▇ Fargo is terminated or
resigns as Master Servicer or Securities Administrator, ▇▇▇▇▇ Fargo still can
remain as the Custodian.
If at any time, ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer, resigns
under this Section 9.09, or is removed as Master Servicer pursuant to Section
9.04, then at such time ▇▇▇▇▇ Fargo Bank, N.A. shall also resign (and shall be
entitled to resign) as Securities Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the Trustee
and the Depositor of a letter from each Rating Agency to the effect that such
action shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof,
the duties of the Master Servicer are transferred to a successor master
servicer, the entire compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, the Securities
Administrator, the Servicers or the Certificateholders for any action taken or
for refraining from the taking of 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 liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties as Master Servicer with respect to the Mortgage Loans
under this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however, that the Master Servicer may in its sole
discretion undertake any such action that it may deem necessary or desirable in
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 liabilities of the Trust, and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account in accordance with the
provisions of Section 9.07 and Section 9.12.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Servicers, Depositor, the Sponsor, the
Securities Administrator and the Trustee, and hold them harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Servicers,
Depositor, the Sponsor, the Securities Administrator or the Trustee may sustain
as a result of the Master Servicer's willful malfeasance, bad faith or
negligence in the performance of its duties hereunder or by reason of its
reckless disregard for its obligations and duties under this Agreement,
including any failure by the Master Servicer or any Subcontractor utilized by
such Master Servicer to deliver any information, report, certification or
accountants' letter when and as required under Sections 3.22, 3.23 or 8.12,
including without limitation any failure by the Master Servicer to identify any
Subcontractor "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB.. The Depositor, the Sponsor, the Securities
Administrator, each Servicer and the Trustee shall immediately notify the Master
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans which would entitle the Depositor, the Securities
Administrator, each Servicer or the Trustee to indemnification under this
Section 9.12, whereupon the Master Servicer shall assume the defense of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Notwithstanding anything to the
contrary contained herein, the Master Servicer shall not settle any claim
involving the Trustee without the Trustee's prior written consent unless such
settlement involves a complete, unqualified and absolute release of the Trustee
from any and all liability in connection with such claim.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement or the Certificates, except to the
extent that any such loss, liability or expense is related to (i) a material
breach of the Master Servicer's representations and warranties in this
Agreement, (ii) resulting from any breach of the applicable Servicer's
obligations in connection with this Agreement for which such Servicer has
performed its obligation to indemnify the Trustee and the Custodian pursuant to
the Master Servicer under the related Servicing Agreement if applicable, (iii)
resulting from any breach of the applicable Original Loan Seller's obligations
in connection with the applicable Assignment Agreement, for which the applicable
Original Loan Seller has performed its obligation to indemnify the Master
Servicer pursuant to the applicable Assignment Agreement, or (iv) the Master
Servicer's willful malfeasance, bad faith or negligence or by reason of its
reckless disregard of its duties and obligations under this Agreement; provided
that any such loss, liability or expense constitutes an "unanticipated expense
incurred by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to reimbursement for
any such indemnified amount from funds on deposit in the Distribution Account.
The foregoing indemnity shall survive the resignation or removal of the Master
Servicer or the termination of this agreement.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve 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) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Securities Administrator and conforming to
the requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
The Securities Administrator shall be permitted to utilize one or
more Subcontractors for the performance of certain of its obligations under this
Agreement, provided that the Securities Administrator complies with Section 3 as
if the Securities Administrator were a "Servicer" pursuant to that Section. The
Securities Administrator shall indemnify the Depositor, the Sponsor and any
director, officer, employee or agent of the Depositor or the Sponsor and hold
them harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any way
related to the failure of the Securities Administrator to perform any of its
obligations under Section 3.22 or Section 3.23.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, 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 and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction 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;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Securities Administrator, not reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors, provided that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of any Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
may in its discretion undertake any such action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto and the interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Fund, and the Securities Administrator shall be entitled to
be reimbursed therefor out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Sponsor, as the case may be,
and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement, the Interest Rate Swap Agreement or
of the Certificates or of any Mortgage Loan or related document other than with
respect to the Securities Administrator's execution and authentication of the
Certificates. The Securities Administrator shall not be accountable for the use
or application by the Depositor or any Servicer of any funds paid to the
Depositor or any Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or any Servicer.
The Depositor hereby directs the Securities Administrator to enter
into execute and make the representation under the Interest Rate Swap Agreement
and to execute the Certificates not in its individual capacity but solely as
Securities Administrator of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Securities Administrator on behalf of the Trust Fund in the Interest Rate Swap
Agreement and the Certificates is made and intended not as a personal
undertaking or agreement by the Securities Administrator but is made and
intended for the purpose of binding only the Trust Fund.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator and any director, officer, employee, agent
or "control person" within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange of 1934, as amended ("Control Person"), of
the Securities Administrator shall be indemnified by the Trust and held harmless
against any loss, liability or expense (including reasonable attorney's fees)
(i) incurred in connection with any claim or legal action relating to (a) this
Agreement or the Interest Rate Swap Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator's duties hereunder or
under such other agreements, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Securities Administrator's duties hereunder or (iii) incurred by
reason of any action of the Securities Administrator taken at the direction of
the Certificateholders, provided that any such loss, liability or expense
constitutes an "unanticipated expense incurred by the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity shall survive
the termination of this Agreement or the resignation or removal of the
Securities Administrator hereunder. Without limiting the foregoing, and except
for any such expense, disbursement or advance as may arise from the Securities
Administrator's negligence, bad faith or willful misconduct, or which would not
be an "unanticipated expense" within the meaning of the second preceding
sentence, the Securities Administrator shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph from
amounts on deposit from time to time in the Distribution Account. The Securities
Administrator 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 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
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 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 9.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator functions are operated through an institutional trust
department of the Securities Administrator, (ii) must be authorized to exercise
corporate trust powers under the laws of its jurisdiction of organization, and
(iii) must be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency and
rates such successor, or the equivalent rating by Standard & Poor's or ▇▇▇▇▇'▇.
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 9.07, then the
Trustee may (but shall not be obligated to) become the successor Securities
Administrator. The Depositor shall appoint a successor to the Securities
Administrator in accordance with Section 10.07. The Trustee shall notify the
Rating Agencies of any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any time
the Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Notwithstanding the foregoing, if at any time the Securities
Administrator resigns pursuant to Section 10.07, the Trustee shall be authorized
to appoint, with the Depositor's consent, a successor Securities Administrator
concurrently with the appointment of a successor Master Servicer.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor, securities administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with the like effect as if originally named as
Securities Administrator herein. The Depositor, the Trustee, the Master Servicer
and the predecessor Securities Administrator 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 Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 9.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
9.06 hereof, 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 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.03, the obligations and responsibilities
of the Depositor, the Master Servicer, the Securities Administrator and the
Trustee created hereby with respect to the Trust Fund shall terminate upon the
earlier of (a) the purchase on or after the Optional Termination Date, by the
Holder of the Class CE Certificates, at the price (the "Termination Price")
equal to the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan (other than in respect of REO Property) plus accrued and unpaid interest
thereon at the applicable Mortgage Interest Rate, and (ii) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Servicer at
the expense of the Servicer and (y) the unpaid principal balance of each
Mortgage Loan related to any REO Property, in each case plus accrued and unpaid
interest thereon at the applicable Mortgage Rate, (iii) all unreimbursed Monthly
Advances, Servicing Advances and indemnification payments payable to the
Servicer, (iv) any Swap Termination Payment owed to the Swap Provider pursuant
to the Interest Rate Swap Agreement, and (v) any unreimbursed indemnification
payments payable to the Master Servicer, the Securities Administrator and the
Trustee under this Agreement; and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund 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. In no event shall the trusts created hereby
continue beyond the expiration of 21 years from the death of the survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. James's, living on the date hereof.
Section 11.02 Final Distribution on the Certificates. If, on any
Remittance Date, the Servicer notifies the Securities Administrator that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Collection Account, the Securities Administrator
shall promptly send a Notice of Final Distribution to the applicable
Certificateholders and the Swap Providers. If the electing Person elects to
terminate the Trust Fund pursuant to clause (a) of Section 11.01, by no later
than the 10th day of the month of the final distribution, the Securities
Administrator upon request by the electing Person will notify the Depositor of
the final Distribution Date and of the applicable repurchase price of the
Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 15th day
of the month of such final distribution. Any such Notice of Final Distribution
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 amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) 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 of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event the electing Person purchases the Mortgage Loans (and
REO Properties) pursuant to Section 11.01(a), such electing Person is required
to remit to the Securities Administrator the applicable Termination Price on the
Remittance Date immediately preceding the applicable final Distribution Date.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Custodian of the Request for Release, the Custodian shall promptly release to
such electing Person or its designee the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due the Master Servicer, the
Securities Administrator, the Depositor and the Trustee hereunder), in each case
on the final Distribution Date and in the order set forth in Section 4.01, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates, the Certificate Balance thereof plus for
each such Class accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.01, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account after application pursuant to
clause (i) above (other than the amounts retained to meet claims, which retained
amounts shall also be released to the Residual Certificates, as applicable, as
and to the extent such amounts shall no longer be required to be so retained).
The foregoing provisions are intended to distribute to each Class of Regular
Certificates any accrued and unpaid interest and principal to which they are
entitled based on the Pass-Through Rates and actual Class Certificate Balances
or notional principal balances set forth in the Preliminary Statement upon
liquidation of the Trust.
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 which remain a part of the Trust Fund. 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 Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event the
electing Person elects to purchase the Mortgage Loans as provided in Section
11.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Securities Administrator has been supplied
with an Opinion of Counsel, at the expense of the electing Person, to the effect
that the failure to comply with the requirements of this Section 11.03 will not
(i) result in the imposition of taxes on "prohibited transactions" on either
Trust REMIC as defined in Section 860F of the Code, or (ii) cause either Trust
REMIC to fail to qualify as a REMIC at any time that any Certificates are
Outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the person electing to terminate the Trust Fund, or its designee, and, by the
next Distribution Date after such sale, the Securities Administrator shall
distribute to the Certificateholders the proceeds of such sale in complete
liquidation of each of the Trust REMICs; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the 90 day
liquidation period for each such Trust REMIC was the date on which the Trustee
sold the assets of the Trust Fund to the electing Person.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Master Servicer, the Securities Administrator, the Depositor, the
Custodian and the Trustee (and the Master Servicer may request an amendment or
consent to any amendment of the Servicing Agreement) without the consent of any
of the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any defective provision herein or in the Servicing Agreement, or to supplement
any provision in this Agreement which may be inconsistent with any other
provision herein or in the Servicing Agreement, (iii) to add to the duties of
the Master Servicer, the Securities Administrator, the Depositor, the Custodian
or the Trustee (or with respect to the Servicing Agreement, of the Servicer),
(iv) to add any other provisions with respect to matters or questions arising
hereunder or under the Servicing Agreement, or (v) to modify, alter, amend, add
to or rescind any of the terms or provisions contained in this Agreement or in
the Servicing Agreement; provided that any action pursuant to clause (iv) or (v)
above shall not, as evidenced by an Opinion of Counsel (which Opinion of Counsel
shall be an expense of the requesting party, but in any case shall not be an
expense of the Trustee or the Trust Fund), adversely affect in any material
respect the interests of any Certificateholder; provided, further, that the
amendment shall not be deemed to adversely affect in any material respect the
interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would not
result in the downgrading or withdrawal of the respective ratings then assigned
to 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 Trustee, the Master Servicer, the Securities
Administrator, the Custodian and the Depositor also may at any time and from
time to time amend this Agreement (and the Master Servicer shall request the
Servicer to amend the Servicing Agreement), without the consent of the
Certificateholders, to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or helpful to (i) maintain the qualification of
each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk of
the imposition of any tax on any Trust REMIC pursuant to the Code that would be
a claim at any time prior to the final redemption of the Certificates or (iii)
comply with any other requirements of the Code; provided, that the Securities
Administrator has been provided an Opinion of Counsel, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Securities Administrator or the Trust Fund, to the effect that
such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Custodian, the Securities Administrator and
the Trustee (and the Master Servicer shall consent to any amendment to the
Servicing Agreement) with the consent of the Holders of Certificates evidencing
Percentage Interests aggregating not less than 66-2/3% of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in clause (i), without the consent of the
Holders of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 66-2/3%, or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
Outstanding.
Notwithstanding any contrary provision of this Agreement, the
Securities Administrator shall not consent to any amendment to this Agreement or
the Servicing Agreement unless (i) it shall have first received an Opinion of
Counsel, which opinion shall not be an expense of the Securities Administrator
or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any Trust REMIC or the Certificateholders or cause any
such Trust REMIC to fail to qualify as a REMIC or the grantor trust to fail to
qualify as a grantor trust at any time that any Certificates are Outstanding and
(ii) the party seeking such amendment shall have provided written notice to the
Rating Agencies and the Swap Provider (with a copy of such notice to the
Securities Administrator and the Trustee) of such amendment, stating the
provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicer under the Servicing Agreement, any Certificate
beneficially owned by the Depositor or any of its Affiliates or by the Original
Loan Seller or any of its Affiliates shall be deemed not to be Outstanding (and
shall not be considered when determining the percentage of Certificateholders
consenting or when calculating the total number of Certificates entitled to
consent) for purposes of determining if the requisite consents of
Certificateholders under this Section 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
the Servicing Agreement requiring the consent of Certificateholders, the
Securities Administrator shall furnish written notification of the substance or
a copy of such amendment to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Securities Administrator may prescribe.
Nothing in this Agreement shall require the Trustee or the
Securities Administrator to enter into an amendment which modifies its
obligations or liabilities without its consent and in all cases without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Securities Administrator or the Trust Fund), satisfactory to the Trustee and the
Securities Administrator that (i) such amendment is permitted and is not
prohibited by this Agreement or the Servicing Agreement and that all
requirements for amending this Agreement or the Servicing Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required to
be reached pursuant to this Section 12.01.
Notwithstanding the Securities Administrator's consent to, or
request for, any amendment of the Servicing Agreement pursuant to the terms of
this Section 12.01, the Servicing Agreement cannot be amended without the
consent of the Servicer.
Notwithstanding the foregoing, any amendment to this Agreement shall
require the prior written consent of the Swap Provider if such amendment
materially and adversely affects the rights or interests of the Swap Provider.
The Trustee may, but shall not be obligated to, enter into any
amendment which negatively affects the Trustee's own rights, duties or
immunities under this Agreement.
Section 12.02 Recordation of Agreement; Counterparts. 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 shall be
effected by the Depositor at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders is delivered to the Depositor.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, either of such assets are held
to be the property of the Depositor, or if for any other reason this Agreement
is held or deemed to create a security interest in either of such assets, then
(i) this Agreement shall be deemed to be a security agreement within the meaning
of the Uniform Commercial Code of the State of New York and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
by the Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the assets transferred, whether now owned or
hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 12.05 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Servicer, the Master
Servicer, the Securities Administrator or the Trustee and the appointment
of any successor;
(iv) the repurchase or substitution of Mortgage Loans pursuant to
this Agreement or the Sale Agreement;
(v) any notice of a purchase of a Mortgage Loan pursuant to this
Agreement and the Sale Agreement; and
(vi) the final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the following:
(i) each report to Certificateholders described in Section 4.02;
(ii) the Servicer's annual statement of compliance and the
accountant's attestation described in the Servicing Agreement; and
(c) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, BCAP LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as
the Depositor may hereafter furnish to the Servicer and the Trustee; (b) in the
case of the Trustee to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telephone:
(▇▇▇) ▇▇▇-▇▇▇▇. or in each case such other address as the Trustee may hereafter
furnish to the Depositor; (c) In the case of the Securities Administrator and/or
Master Servicer to ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Corporate Trust Services BCAP 2006 AA2
Facsimile:: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Client Manager BCAP 2006 AA2; (d) in the case of ▇▇▇▇▇ Fargo,
▇▇▇▇▇ Fargo Bank, N.A., (i) for the purpose of certificate transfers, ▇▇▇▇▇
Fargo Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and (ii) for all other purposes, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, or such other addresses as may be hereafter furnished to the Swap
Provider and the other parties hereto in writing; and (d) in the case of each of
the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 12.06 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.
Section 12.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Securities Administrator a
written notice of an Event of Default and of the continuance thereof, as herein
provided, and unless the Holders of Certificates evidencing not less than 25% of
the Voting Rights evidenced by the Certificates shall also have made written
request to the Securities Administrator to institute such action, suit or
proceeding in its own name as Securities Administrator hereunder and shall have
offered to the Securities Administrator such reasonable indemnity as it may
require against the costs, expenses, and liabilities to be incurred therein or
thereby, and the Securities Administrator, 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; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Securities Administrator, that no one or more Holders
of Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Agreement, except in the manner herein
provided and for the common benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section 12.07, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 12.08 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 12.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agree to comply with all reasonable requests made by the Depositor in good faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with the Trust, the Master
Servicer and the Securities Administrator shall cooperate fully with the
Depositor to deliver to the Depositor (including its assignees or designees),
any and all statements, reports, certifications, records and any other
information available to such party and reasonably necessary in the good faith
determination of the Depositor to permit the Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Master Servicer and the Securities Administrator, reasonably believed by the
Depositor to be necessary in order to effect such compliance.
Each of the Swap Provider, and each Person entitled to
indemnification hereunder who is not a party hereto, 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 its rights under this
Agreement.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
BCAP LLC
By:
--------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer;
Securities Administrator and
Custodian
By:
--------------------------------------
Name:
Title:
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Name:
Title:
SCHEDULE I
Mortgage Loan Schedule
EXHIBIT A
FORM OF CLASS A-1, CLASS A-2 CLASS M-1, CLASS M-2, CLASS M-3, CLASS M-4,
CLASS M-5, CLASS M-6 CLASS M-7 and CLASS M-8 CERTIFICATES.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A
PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇▇ ▇▇ ▇▇▇▇ 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. :
Cut-off Date : November 1, 2006
First Distribution Date : December 26, 2006
Initial Certificate Balance of
this Certificate
("Denomination") :
Initial Certificate Balances of
all Certificates of this Class : [A-1] [$1,031,194,000]
[A-2] [$114,577,000]
[M-1] [$21,468,000]
[M-2] [$11,654,000]
[M-3] [8,587,000]
[M-4] [6,134,000]
[M-5] [5,520,000]
[M-6] [4,294,000]
[M-7] [4,294,000]
[M-8] [9,813,000]
CUSIP : [A-1] [_________]
[A-2] [_________]
[M-1] [_________]
[M-2] [_________]
[M-3] [_________]
[M-4] [_________]
[M-5] [_________]
[M-6] [_________]
[M-7] [_________]
[M-8] [_________]
ISIN : [A-1] [_________]
[A-2] [_________]
[M-1] [_________]
[M-2] [_________]
[M-3] [_________]
[M-4] [_________]
[M-5] [_________]
[M-6] [_________]
[M-7] [_________]
[M-8] [_________]
BCAP LLC
BCAP LLC Trust 2006-AA2
Mortgage Pass-Through Certificates, Series 2006-AA2
[Class A-1][Class A-2] [Class M-1][Class M-2] [Class M-3][Class M-4]
[Class M-5][Class M-6] [Class M-7][Class M-8]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor or the Securities Administrator referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [__________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Master Servicing and Trust Agreement dated as of the
Cut-off Date specified above (the "Agreement") between BCAP LLC, as depositor
(the "Depositor"), and ▇▇▇▇▇ Fargo Bank, National Association, as Master
Servicer (the "Master Servicer"), as Securities Administrator (the "Securities
Administrator") and as Custodian (the "Custodian"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity, but
solely as
Securities Administrator
By:
--------------------------------------
Authenticated:
By:
------------------------------------
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2006-AA2
Mortgage Pass-Through Certificates, Series 2006-AA2
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2006-AA2 Mortgage Pass Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes, or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Securities Administrator and the
other parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator and the Depositor and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS R CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN FOUR "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : R
Cut-off Date : November 1, 2006
First Distribution Date : December 26, 2006
CUSIP : R [__________________]
ISIN : R [_________________]
BCAP LLC
BCAP LLC Trust 2006-AA2
Mortgage Pass-Through Certificates, Series 2006-AA2
Class R
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor or the Securities Administrator referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [____________] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class R Certificates pursuant to a Master Servicing and Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") between BCAP LLC, as
depositor (the "Depositor"), and ▇▇▇▇▇ Fargo Bank, National Association, as
Securities Administrator (the "Securities Administrator"), Master Servicer (the
"Master Servicer")and Custodian (the "Custodian"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the office designated by the Securities Administrator for such
purposes.
No transfer of a Class R Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement or
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator or
the Trust Fund. In the event that such representation is violated, or any
attempt is made to transfer to a plan or arrangement subject to Section 406 of
ERISA or a plan subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement, such attempted transfer or acquisition
shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this 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 this Class R Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, Securities Administrator or agent in connection with any Transfer of
this Class R Certificate, (C) not to cause income with respect to 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 such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R Certificate or to cause the Transfer of the Ownership Interest in this
Class R Certificate to any other Person if it has actual knowledge that such
Person is a Non-Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:
--------------------------------------
Authenticated:
By:
--------------------------------------
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2006-AA2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2006-AA2 Mortgage Pass Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the monthly immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes, or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Securities Administrator and the
other parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator, the Depositor, and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C
FORM OF CLASS CE CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT-REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
ANY SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN
THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE
OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID
AND OF NO EFFECT.
Certificate No. : CE
Cut-off Date : November 1, 2006
First Distribution Date : December 26, 2006
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : [_________________]
ISIN : [_________________]
BCAP LLC
BCAP LLC Trust 2006-AA2
Mortgage Pass-Through Certificates, Series 2006-AA2
Class CE
evidencing a percentage interest in the distributions allocable
to the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor or the Securities
Administrator referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the Denomination of this Certificate by the aggregate of the
Denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
between BCAP LLC, as depositor (the "Depositor"), and ▇▇▇▇▇ Fargo Bank, National
Association, as Master Servicer (the "Master Servicer"), Securities
Administrator (the "Securities Administrator") and Custodian (the "Custodian").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA or Section 4975 of the Code or any
materially similar provisions of applicable federal, state or local law
("Similar Law") or a person acting on behalf of or investing plan assets of any
such plan, which representation letter shall not be an expense of the Securities
Administrator, or (ii) if the transferee is an insurance company and the
certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation letter that it is purchasing such Certificates with the assets of
its general account and that the purchase and holding of such Certificates
satisfy the requirements for exemptive relief under Sections I and III of PTCE
95-60, or (iii) in the case of a Certificate presented for registration in the
name of an employee benefit plan subject to ERISA, or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments) or a plan subject to Similar Law, or a Securities Administrator of
any such plan or any other person acting on behalf of any such plan or
arrangement or using such plan's or arrangement's assets, an Opinion of Counsel
satisfactory to the Securities Administrator, which Opinion of Counsel shall not
be an expense of the Securities Administrator, the Depositor or the Trust Fund,
addressed to the Securities Administrator and the Depositor to the effect that
the purchase and holding of such Certificate will not constitute or result in a
non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of
the Code or any Similar Law and will not subject the Securities Administrator to
any obligation in addition to those expressly undertaken in this Agreement or to
any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:
--------------------------------------
Authenticated:
By:
--------------------------------------
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2006-AA2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2006-AA2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Securities Administrator and the other parties to
the Agreement with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator, the Depositor and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Securities Administrator, the Depositor, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF REQUEST FOR RELEASE
(for ▇▇▇▇▇ Fargo Bank, N.A., as custodian)
In connection with the administration of the Mortgage Loans held by
you as trustee, we request the release, and acknowledge receipt, of the
(Custodial File/[specify documents]) for the Mortgage Loan described below, for
the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Send Custodial File to:
Reason for Requesting Documents (check one)
_______ 1. Mortgage Loan Paid in Full. (The requestor hereby certifies
that all amounts received in connection therewith have been
credited to the Collection Account pursuant to the Master
Servicing and Trust Agreement.)
_______ 2. Mortgage Loan Repurchased Pursuant to any or all of the
Master Servicing and Trust Agreement, the applicable
Servicing Agreements or the Assignment Agreements. (The
requestor hereby certifies that the Repurchase Price (as
defined in the applicable agreement) has been credited to
the Collection Account pursuant to the Master Servicing and
Trust Agreement.)
_______ 3. Mortgage Loan Liquidated by _________________. (The
requestor hereby certifies that all proceeds of foreclosure,
insurance, condemnation or other liquidation have been finally
received and credited to the Collection Account pursuant to
the Master Servicing and Trust Agreement.)
_______ 4. Mortgage Loan in Foreclosure.
_______ 5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
Capitalized terms not defined herein shall have the meanings set
forth in the Master Servicing and Trust Agreement, dated as of November 1, 2006
(the "Master Servicing and Trust Agreement"), between BCAP LLC, as depositor and
▇▇▇▇▇ Fargo Bank, National Association, as master servicer, securities
administrator and custodian.
I, the undersigned, hereby certify that the above statements are
true and correct and set my name hereof on this __ day of ___________, 200_.
[REQUESTOR]
By:
--------------------------------------
Name:
Title:
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the trustee, please acknowledge your receipt by signing in
the space indicated below, and returning this form, if requested.
▇▇▇▇▇ FARGO BANK, N.A.,
as a Custodian
By:
------------------------
Name:
Title
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
_____________________
_____________________
Re: Master Servicing and Trust Agreement, dated as of November 1, 2006,
between BCAP LLC, as depositor and ▇▇▇▇▇ Fargo Bank, National
Association, as custodian
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Master Servicing and Trust Agreement"), the
undersigned, as Custodian, certifies that it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to a MERS Loan, a duly executed Assignment
of the Mortgage (which may be included in a blanket assignment or
assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Master Servicing and Trust Agreement. The Custodian makes no representations as
to: (i) the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Custodian has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Master Servicing and Trust Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
By:
--------------------------------------
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Original Loan Seller]
_____________________
_____________________
Re: Master Servicing and Trust Agreement, dated as of November 1, 2006,
between BCAP LLC, as depositor and ▇▇▇▇▇ Fargo Bank, National
Association, as trustee
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Master Servicing and Trust Agreement"), the
undersigned, as Custodian, hereby certifies that as to each Mortgage Loan (other
than any Mortgage Loan paid in full or listed on the attached Document Exception
Report) it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(c) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording with the standard ▇▇▇▇▇▇ ▇▇▇/FHLMC Condominium Rider
or PUD Rider be attached if the mortgaged property is a condominium or is
located in a PUD;
(d) except with respect to a MERS Loan, originals of any intervening
Mortgage assignment or certified copies in either case evidencing
recording; provided that the assignment may be in the form of a blanket
assignment or assignments, a copy of which with evidence of recording
shall be acceptable;
(e) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(f) an original or copy of a title insurance policy, a certificate
of title, or attorney's opinion of title and abstract of title;
(g) to the extent applicable, (1) an original power of attorney, or
a certified copy thereof, in either case with evidence of recordation
thereon if necessary to maintain the lien of the Mortgage or if the
document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy of
such power of attorney, and (2) an original or copy of any surety
agreement or guaranty agreement;
(h) for each Mortgage Loan with respect to which the Mortgagor's
name as it appears on the note does not match the borrower's name on the
mortgage loan schedule, one of the following: the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement;
(i) a security agreement, chattel mortgage or equivalent document
executed in connection with the mortgage, if any.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 8, 31 and 32 of the
Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Master Servicing and Trust Agreement. The Custodian
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, or
(ii) the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan or the perfection or priority of any Mortgage. Notwithstanding
anything herein to the contrary, the Custodian has made no determination and
makes no representations as to whether (i) any endorsement is sufficient to
transfer all right, title and interest of the party so endorsing, as noteholder
or assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Master Servicing and Trust Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity, but
solely as Custodian
By:
--------------------------------------
Name:
Title:
EXHIBIT G
FORM OF RESIDUAL TRANSFER AFFIDAVIT
BCAP LLC Trust 2006-AA2,
Mortgage Pass-Through Certificates, Series 2006-AA2
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of _________________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the "Certificate")
issued pursuant to the Master Servicing and Trust Agreement (the "Agreement"),
between BCAP LLC, as depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, National
Association, as master servicer (the "Master Servicer") and securities
administrator (the "Securities Administrator") and HSBC Bank USA, National
Association, as trustee (the "Trustee"). Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor, the Securities Administrator
and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass through entity an
affidavit that such record holder is a Permitted Transferee and the pass through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit H to the Agreement (a "Transferor
Certificate") to the effect that such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is _____________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11.The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
[_] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the
Transferee to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee:
[_] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer,
the Transferee had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith.
[_] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ____ day of _______, 20__.
_______________________________
Print Name of Transferee
By:______________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________, 20__.
___________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [_________]
▇▇▇▇▇ Fargo Bank, National Association,
as Securities Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: BCAP 2006-AA2
Re: BCAP LLC Trust 2006-AA2,
Mortgage Pass-Through Certificates Series 2006-AA2,
Class [o]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_________________________________
Print Name of Transferor
By: ____________________________
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [_________]
▇▇▇▇▇ Fargo Bank, National Association,
as Securities Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: BCAP 2006-AA2
Re: BCAP LLC Trust 2006-AA2,
Mortgage Pass-Through Certificates Series 2006-AA2,
Class [o]
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) either we are purchasing a Class A-1 Certificate,
Class A-2 Certificate, Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate, Class M-9 Certificate
or a Class M-10 Certificate, or we are not an employee benefit plan that is
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or a plan subject to
any federal, state or local law materially similar to the foregoing provisions
of ERISA or the Code, nor are we acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect such
acquisition, or, with respect to a Class CE Certificate that has been the
subject of an ERISA-Qualifying Underwriting, the purchaser is an insurance
company that is purchasing this certificate with funds contained in an
"insurance company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase
and holding of such Certificates satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60, (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 Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates and (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $ ___(1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
___________ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___________ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
___________ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___________ Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
___________ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State,
territory or the District of Columbia.
----------------------
(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.
___________ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
___________ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___________ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
___________ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
___________ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_____________________________
Print Name of Transferee
By:___________________________________
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___________ The Buyer owned $ __________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
___________ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ ____________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
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 Transferee
By:_______________________________
Name:
Title:
IF AN ADVISER:
__________________________________
Print Name of Buyer
Date:______________________________
EXHIBIT J
▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
[DATE]
BCAP TRUST LLC 2006-AA2.
[________________________________________]
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: BCAP TRUST LLC 2006-AA2
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 BCAP TRUST LLC ▇▇▇▇-▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇ 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.
[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]
EXHIBIT K-1
FORM OF SECURITIES ADMINISTRATOR CERTIFICATION TO
BE PROVIDED TO DEPOSITOR
Re: BCAP LLC Trust 2006-AA2 (the "Trust") Mortgage
Pass-Through Certificates Series 2006-AA2, issued
pursuant to the Master Servicing and Trust Agreement,
dated as of November 1, 2006 (the "Master Servicing and
Trust Agreement"), between BCAP LLC, as depositor (the
"Depositor"), HSBC Bank USA National Association, as
trustee, and ▇▇▇▇▇ Fargo Bank, National Association, as
master servicer and securities administrator
The Securities Administrator hereby certifies to the Depositor and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 10-D required to be
filed in respect of period covered by the Annual Report (collectively with the
Annual Report, the "Reports"), of the Trust;
2. Based on my knowledge, the 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
the Annual Report;
3. Based on my knowledge, the distribution or servicing information
required to be provided to the Securities Administrator by the Servicers under
the Master Servicing and Trust Agreement for inclusion in the Reports is
included in the Reports; and
4. I am responsible for reviewing the activities performed by the
Trustee under the Pooling and Servicing Agreement, and based on my knowledge and
the compliance review conducted in preparing the compliance statement of the
Trustee required in the Annual Report under Item 1123 of Regulation AB, and
except as disclosed in the Reports, the Trustee has fulfilled its obligations
under the Pooling and Servicing Agreement in all material respects; and
5. The report on assessment of compliance with servicing criteria
for asset-backed securities applicable to the Securities Administrator and each
Subcontractor utilized by the Securities Administrator and their related
attestation reports on assessment of compliance with servicing criteria
applicable to it required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been
included as an exhibit to the Annual Report. Any material instances of
non-compliance are described in such report and have been disclosed in the
Annual Report.
Date: _________________________________
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION
By:_____________________________
[Signature]
[Title]
EXHIBIT L
SALE AGREEMENTS
EXHIBIT 10.1
================================================================================
BARCLAYS BANK PLC,
Purchaser
INDYMAC BANK, F.S.B.,
Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 1, 2006
Conventional, Fixed and Adjustable Rate
Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
ARTICLE II
AGREEMENT TO PURCHASE
Section 2.01 Agreement to Purchase........................................
ARTICLE III
MORTGAGE SCHEDULES
Section 3.01 Preliminary Mortgage Schedule................................
Section 3.02 Delivery of Mortgage Loan Schedule...........................
ARTICLE IV
PURCHASE PRICE
Section 4.01 Purchase Price...............................................
ARTICLE V
EXAMINATION OF MORTGAGE FILES
Section 5.01 Examination of Mortgage Files................................
ARTICLE VI
CONVEYANCE FROM SELLER TO PURCHASER
Section 6.01 Conveyance of Mortgage Loans.................................
Section 6.02 Books and Records............................................
Section 6.03 Delivery of Mortgage Loan Documents..........................
Section 6.04 Quality Control Procedures...................................
Section 6.05 MERS Designated Loans........................................
ARTICLE VII
SERVICING OF THE MORTGAGE LOANS
Section 7.01 Servicing....................................................
ARTICLE VIII
[RESERVED]
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER; REMEDIES FOR BREACH
Section 9.01 Representations and Warranties Regarding the Seller..........
Section 9.02 Representations and Warranties Regarding Individual
Mortgage Loans..............................................
Section 9.03 Remedies for Breach of Representations and Warranties........
Section 9.04 Repurchase of Mortgage Loans with Early Payment Defaults.....
Section 9.05 Premium Recapture............................................
ARTICLE X
CLOSING
Section 10.01 Conditions to Closing........................................
ARTICLE XI
CLOSING DOCUMENTS
Section 11.01 Required Closing Documents...................................
ARTICLE XII
COSTS
Section 12.01 Costs........................................................
ARTICLE XIII
COOPERATION OF SELLER WITH A RECONSTITUTION
Section 13.01 Reconstitution of Mortgage Loans.............................
ARTICLE XIV
THE SELLER
Section 14.01 Additional Indemnification by the Seller; Third Party
Claims......................................................
Section 14.02 Merger or Consolidation of the Seller........................
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Financial Statements.........................................
Section 15.02 Mandatory Delivery...........................................
Section 15.03 Notices......................................................
Section 15.04 Severability Clause..........................................
Section 15.05 Counterparts.................................................
Section 15.06 [Reserved]...................................................
Section 15.07 Intention of the Parties.....................................
Section 15.08 Successors and Assigns; Assignment of Purchase Agreement.....
Section 15.09 Waivers......................................................
Section 15.10 Exhibits.....................................................
Section 15.11 General Interpretive Principles..............................
Section 15.12 Reproduction of Documents....................................
Section 15.13 Further Agreements...........................................
Section 15.14 [Reserved]...................................................
Section 15.15 No Solicitation..............................................
Section 15.16 Waiver of Trial by Jury......................................
Section 15.17 Governing Law Jurisdiction; Consent to Service of Process....
Section 15.18 No Brokers...................................................
Section 15.19 Reasonable Purchase Price....................................
ARTICLE XVI
COMPLIANCE WITH REGULATION AB
Section 16.01 Intent of the Parties; Reasonableness........................
Section 16.02 Additional Representations and Warranties of the Seller......
Section 16.03 Information to Be Provided by the Seller.....................
Section 16.04 Indemnification; Remedies....................................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G UNDERWRITING GUIDELINES
EXHIBIT H FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT I FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT
This MORTGAGE LOAN PURCHASE AGREEMENT (the "Agreement"), dated as of
October 1, 2006, by and between Barclays Bank PLC, a public limited liability
company, registered in England and Wales under company number 1026167, having an
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ , ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), and
IndyMac Bank, F.S.B., a federal savings bank, having an office at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to time, from the
Seller, certain conventional fixed and adjustable rate residential first-lien
and second lien residential mortgage loans (the "Mortgage Loans") on a servicing
retained basis as described herein, and which shall be delivered in pools of
whole loans (each, a "Mortgage Loan Package") on various dates as provided
herein (each, a "Closing Date");
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first lien or second lien on a
residential dwelling located in the jurisdiction indicated on the Mortgage Loan
Schedule for the related Mortgage Loan Package;
WHEREAS, the Purchaser and the Seller wish to prescribe the
manner of the conveyance, servicing and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated Securitization Transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A ▇▇▇▇▇▇ ▇▇▇ Transfer or a ▇▇▇▇▇▇▇ Mac Transfer.
Agreement: This Mortgage Loan Purchase Agreement and all amendments
hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Ancillary Income: All late charges, assumption fees, escrow account
benefits, reinstatement fees, Prepayment Penalties, and similar types of fees
arising from or in connection with any Mortgage, to the extent not otherwise
payable to the Mortgagor under applicable law or pursuant to the terms of the
related Mortgage Note.
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be the lesser of (a) the value of
the Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan or (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan.
Assignment and Conveyance Agreement: As defined in Section 6.01.
Assignment of Mortgage: 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
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan (a) that requires only
payments of interest until the stated maturity date of the Mortgage Loan or (b)
for which Monthly Payments of principal (not including the payment due on its
stated maturity date) are based on an amortization schedule that would be
insufficient to fully amortize the principal thereof by the stated maturity date
of the Mortgage Loan.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a
day on which banking and savings and loan institutions, in the State of New
York, the State of California or the State in which the Seller's servicing
operations are located or (iii) the state in which the Custodian's operations
are located, are authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase, and the Seller from time to time shall sell, the Mortgage
Loans listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
CLTV: As of any date and as to any Second Lien Loan, the ratio,
expressed as a percentage, of the (a) sum of (i) the outstanding Stated
Principal Balance of the Second Lien Loan and (ii) the outstanding Stated
Principal Balance as of such date of any mortgage loan or mortgage loans that
are senior or equal in priority to the Second Lien Loan and which are secured by
the same Mortgaged Property to (b) the Appraised Value as determined pursuant to
the Underwriting Guidelines of the related Mortgaged Property as of the
origination of the Second Lien Loan.
Code: Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan which contains a provision whereby the Mortgagor is permitted to convert
the Adjustable Rate Mortgage Loan to a Fixed Rate Mortgage Loan in accordance
with the terms of the related Mortgage Note.
Co-op: A private, cooperative housing corporation, having only one
class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial purposes
and common areas therein and whose board of directors authorizes the sale of
stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect to
a dwelling unit occupied by the Mortgagor and relating to the stock allocated to
the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock allocated
to a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease. A private, cooperative housing
corporation, having only one class of stock outstanding, which owns or leases
land and all or part of a building or buildings, including apartments, spaces
used for commercial purposes and common areas therein and whose board of
directors authorizes the sale of stock and the issuance of a Co-op Lease.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Custodial Account: The separate trust account created and maintained
pursuant to Section 2.04 of the Servicing Agreement (with respect to each
Mortgage Loan, as specified therein).
Custodial Agreement: The agreement(s) governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in effect at
any given time, all of the individual Custodial Agreements shall collectively be
referred to as the "Custodial Agreement."
Custodian: ▇▇▇▇▇ Fargo Bank, N.A., a national banking association,
and its successors in interest or permitted assigns or any successor to the
Custodian under the Custodial Agreement as therein provided.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Deemed Material and Adverse Representation: Each representation and
warranty identified as such in Section 9.02 of this Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: The earlier of two (2) Business Days prior to
the related Remittance Date, or the 15th day of the month in which the related
Remittance Date occurs.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Escrow Account: The separate account created and maintained pursuant
to Section 2.06 of the Servicing Agreement (with respect to each Mortgage Loan,
as specified therein.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ Mae: The Federal National Mortgage Association, or any
successor thereto.
▇▇▇▇▇▇ ▇▇▇ Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇ ▇▇▇
Servicers' Guide, and all amendments or additions thereto.
▇▇▇▇▇▇ Mae Transfer: As defined in Section 13.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto and
including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
First Lien Loan: A Mortgage Loan secured by a first lien Mortgage on
the related Mortgaged Property.
Fitch: Fitch, Inc., or its successor in interest.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
▇▇▇▇▇▇▇ Mac Transfer: As defined in Section 13.01.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 ("HOEPA"), (b) with an "annual percentage
rate" or total "points and fees" payable by the related Mortgagor (as each such
term is calculated under HOEPA) that exceed the thresholds set forth by HOEPA
and its implementing regulations, including 12 C.F.R. ss. 226.32(a)(1)(i) and
(ii), (c) classified as a "high cost home," "threshold," "covered," (excluding
New Jersey "Covered Home Loans" as that term was defined in clause (1) of the
definition of that term in the New Jersey Home Ownership Security Act of 2002
that were originated between November 26, 2003 and July 7, 2004), "high risk
home," "predatory" or similar loan under any other applicable state, federal or
local law (or a similarly classified loan using different terminology under a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(d) categorized as High Cost pursuant to Appendix E of Standard & Poor's
Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof with regard to FHA Mortgage Insurance. The term "HUD," for purposes of
this Agreement, is also deemed to include subdivisions thereof such as the FHA
and Government National Mortgage Association.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the Lifetime Rate Cap set forth as an amount per annum on the related
Mortgage Loan Schedule.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding Stated Principal Balance of
the Mortgage Loan as of the related origination date (unless otherwise
indicated), to the lesser of (a) the Appraised Value of the Mortgaged Property
at origination and (b) if the Mortgage Loan was made to finance the acquisition
of the related Mortgaged Property, the purchase price of the Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedures Manual and (b) the Seller has
designated or will designate the Purchaser as the Investor on the MERS System.
MERS Identification Number: The eighteen digit number permanently
assigned to each MERS Designated Mortgage Loan.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., and any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Loan, or
a second lien, in the case of a Second Lien Loan, on an unsubordinated estate in
fee simple in real property securing the Mortgage Note; except that with respect
to real property located in jurisdictions in which the use of leasehold estates
for residential properties is a widely accepted practice, the mortgage, deed of
trust or other instrument securing the Mortgage Note may secure and create, with
respect to a First Lien Loan, a first lien, and with respect to a Second Lien
Loan, a second lien, in each case, upon a leasehold estate of the Mortgagor.
With respect to a Co-op Loan, the Security Agreement.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the applicable Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and
all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding replaced or repurchased mortgage
loans.
Mortgage Loan Documents: The documents required to be delivered to
the Custodian pursuant to Section 6.03 with respect to any Mortgage Loan.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal to
the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting forth
the following information with respect to each Mortgage Loan in the related
Mortgage Loan Package: (1) the Seller's Mortgage Loan identifying number; (2)
the Mortgagor's name; (3) the street address of the Mortgaged Property including
the city, state and zip code; (4) a code indicating whether the Mortgagor is
self-employed, if available; (5) a code indicating whether the Mortgaged
Property is owner-occupied, investment property or a second home; (6) the number
and type of residential units constituting the Mortgaged Property (e.g., single
family residence, a two- to four-family dwelling, condominium, planned unit
development or cooperative); (7) the original months to maturity or the
remaining months to maturity from the related Cut-off Date, in any case based on
the original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (8) with respect
to each First Lien Loan, the Loan-to-Value Ratio at origination, and with
respect to each Second Lien Loan, the CLTV at origination; (9) the Mortgage
Interest Rate as of the related Cut-off Date; (10) the date on which the first
Monthly Payment was due on the Mortgage Loan and, if such date is not consistent
with the Due Date currently in effect, the Due Date; (11) the stated maturity
date; (12) the amount of the Monthly Payment as of the related Cut-off Date;
(13) the last payment date on which a payment was actually applied to the
outstanding principal balance; (14) the original Stated Principal Balance of the
Mortgage Loan; (15) the Stated Principal Balance of the Mortgage Loan as of the
close of business on the related Cut-off Date, after deduction of payments of
principal due and collected on or before the related Cut-off Date; (16) with
respect to each Adjustable Rate Mortgage Loan, the Interest Rate Adjustment
Date; (17) with respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(18) with respect to each Adjustable Rate Mortgage Loan, the Lifetime Rate Cap
under the terms of the Mortgage Note; (19) with respect to each Adjustable Rate
Mortgage Loan, a code indicating the type of Index; (20) the type of Mortgage
Loan (i.e., Fixed Rate or Adjustable Rate Mortgage Loan, First or Second Lien
Loan); (21) a code indicating the purpose of the loan (i.e., purchase, rate/term
refinance, equity take-out refinance); (22) a code indicating the documentation
style (i.e. no documents, full, alternative, reduced, no income/no asset, stated
income, no ratio, reduced or NIV); (23) [reserved]; (24) the loan credit
classification (as described in the Underwriting Guidelines); (25) whether such
Mortgage Loan provides for a Prepayment Penalty; (26) the Prepayment Penalty
period of such Mortgage Loan, if applicable; (27) a description of the
Prepayment Penalty, if applicable; (28) the Mortgage Interest Rate as of
origination; (29) the credit risk score (FICO score); (30) the date of
origination; (31) with respect to each Adjustable Rate Mortgage Loan, the
Mortgage Interest Rate adjustment period; (32) with respect to each Adjustable
Rate Mortgage Loan, the Mortgage Interest Rate adjustment percentage; (33) with
respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate floor;
(34) [reserved]; (35) with respect to each Adjustable Rate Mortgage Loan, the
Periodic Rate Cap as of the first Interest Rate Adjustment Date; (36) a code
indicating whether the Mortgage Loan is a Balloon Mortgage Loan; (37) a code
indicating whether the Mortgage Loan is a Home Loan; (38) the original Monthly
Payment due; (39) the Appraised Value; (40) [reserved]; (41) [reserved]; (42) a
code indicating whether the Mortgage Loan is covered by a PMI Policy and, if so,
identifying the PMI Policy provider; (43) PMI coverage percentage; (44) in
connection with a condominium unit, a code indicating whether the condominium
project where such unit is located is low-rise or high-rise; (45) a code
indicating whether the Mortgaged Property is a leasehold estate; (46) the MERS
Identification Number, if applicable; (47) a code indicating the documentation
style, as required by Standard & Poor's criteria; and (48) number of times
previously 30+ delinquent (if applicable). With respect to the Mortgage Loans in
the aggregate, the related Mortgage Loan Schedule shall set forth the following
information, as of the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage Loans; (4) the
weighted average maturity of the Mortgage Loans; (5) the average principal
balance of the Mortgage Loans; (6) the applicable Cut-off Date; and (7) the
applicable Closing Date.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property (or leasehold estate, if applicable)
securing repayment of a related Mortgage Note, consisting of an unsubordinated
estate in fee simple or, with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a
widely-accepted practice, a leasehold estate, in a single parcel or multiple
parcels of real property improved by a Residential Dwelling. With respect to a
Co-op Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Co-op Loan and
the related Co-op Lease.
Mortgagor: The obligor on the related Mortgage Note.
OCC: Office of the Comptroller of the Currency, and any successor
thereto.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President, a Vice President or an
Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Seller, and delivered to
the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, reasonably acceptable to the Purchaser.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor different payment options each month, which include:
(i) a minimum monthly payment option, (ii) an interest-only payment option or
(iii) a full principal and interest option which amortizes over 30 years or
less.
OTS: Office of Thrift Supervision, and any successor thereto.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Preliminary Mortgage Schedule: As defined in Article III.
Prepayment Penalty: With respect to each Mortgage Loan, the penalty
if the Mortgagor prepays such Mortgage Loan as provided in the related Mortgage
Note or Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any Prepayment Penalty or premium thereon, if so provided in the
related Purchase Price and Terms Agreement, and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4.01 of this Agreement.
Purchase Price and Terms Agreement: Those certain agreements setting
forth the general terms and conditions of the transactions consummated herein
and identifying the Mortgage Loans to be purchased from time to time hereunder,
by and between the Seller and the Purchaser.
Purchaser: Barclays Bank PLC, a public limited liability company,
registered in England and Wales under Company number 1026167 and its successors
in interest and assigns, or any successor to the Purchaser under this Agreement
as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller, who
had no interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation was not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfied the requirements of Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage Loans
were in fact underwritten as described in clause (i) above and were acquired by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller's own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage loans
properly applied the underwriting criteria designated by the Seller.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be deposited in
the Custodial Account by the Seller in the month of substitution); (ii) have a
Mortgage Interest Rate not less than and not more than 1% greater than the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Mortgage Interest Rate Caps); and
(v) comply with each representation and warranty (respecting individual Mortgage
Loans) set forth in Article IX.
Rating Agency: Any of Fitch, Moody's or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreements: The agreement or agreements entered into
by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency Transfer or a
Securitization Transaction pursuant to Article XIII, including, but not limited
to, a seller's warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect to a
Securitization Transaction.
Reconstitution Date: As defined in Section 13.01.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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. 1506-1631 (Jan. 7, 2005)) or by
the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Relief Act: The Servicemembers Civil Relief Act.
Remittance Date: The date specified in the Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
Repurchase Price: As defined in the related Purchase Price and Terms
Agreement.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, (iv) a one-family dwelling in
a planned unit development or (v) a Co-op, none of which is a mobile home or
manufactured home.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Loan: A Mortgage Loan secured by a second lien Mortgage
on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Security Agreement: The agreement creating a security interest in
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As defined in the initial paragraph of the Agreement,
together with its successors in interest.
Seller Information: As defined in Section 16.04(a).
Servicing Agreement: The agreement to be entered into by the
Purchaser and the Seller, as servicer, providing for the Seller to service the
Mortgage Loans as specified by the Servicing Agreement.
Servicing Fee: With respect to each Mortgage Loan subject to the
Servicing Agreement, a fee payable monthly equal to one-twelfth of the product
of (a) the Servicing Fee Rate and (b) the outstanding principal balance of such
Mortgage Loan. Such fee shall be payable monthly and shall be pro-rated for any
portion of a month during which the Mortgage Loan is serviced by the Seller, as
servicer under the Servicing Agreement. The obligation of the Purchaser to pay
the Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, to the extent permitted by this Agreement) of such Monthly
Payment collected by the Seller, as servicer or as otherwise provided under this
Agreement.
Servicing Fee Rate: A percentage per annum as set forth in the
Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller during the period in which the Seller is acting as
servicer pursuant to the Servicing Agreement consisting of originals of all
documents in the Mortgage File which are not delivered to the Purchaser, its
designee or the Custodian and copies of the Mortgage Loan Documents set forth in
Section 2 of the Custodial Agreement.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Seller
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Seller with respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage Loans.
Sponsor: The sponsor, as such term is defined in Item 1101(l) of
Regulation AB, with respect to any Securitization Transaction.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect on a particular Closing Date.
Stated Principal Balance: As to each Mortgage Loan (i) the principal
balance of the Mortgage Loan at the related Cut-off Date after giving effect to
payments of principal due on or before such date, whether or not received, minus
(ii) all amounts previously distributed to the Purchaser with respect to the
related Mortgage Loan representing payments or recoveries of principal or
advances in lieu thereof.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of the
indemnifications set forth in Sections 9.03 and 14.01.
Tax Service Contract: A paid-in-full, life-of-loan tax service
contract with First American Real Estate Tax Service, as described in Section
2.08 of the Servicing Agreement.
Third-Party Originator: Each Person, other than a Qualified
Correspondent or the Seller, that originated Mortgage Loans acquired by the
Seller.
Underwriting Guidelines: The underwriting guidelines of the Seller
in effect at the origination of each Mortgage Loan Package, a copy of which is
attached as an exhibit to the related Assignment and Conveyance.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
ARTICLE II
AGREEMENT TO PURCHASE
Section 2.01 Agreement to Purchase.
The Seller agrees to sell from time to time, and the Purchaser
agrees to purchase from time to time, Mortgage Loans having an aggregate Stated
Principal Balance on the related Cut-off Date in an amount as set forth in the
related Purchase Price and Terms Agreement, or in such other amount as agreed by
the Purchaser and the Seller as evidenced by the actual aggregate principal
balance of the Mortgage Loans accepted by the Purchaser on each Closing Date.
ARTICLE III
MORTGAGE SCHEDULES
Section 3.01 Preliminary Mortgage Schedule.
The Seller from time to time shall provide the Purchaser with
certain information constituting a preliminary listing of the Mortgage Loans to
be purchased on each Closing Date in accordance with the related Purchase Price
and Terms Agreement and this Agreement (each, a "Preliminary Mortgage
Schedule").
Section 3.02 Delivery of Mortgage Loan Schedule.
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans to be purchased on a particular Closing Date to the Purchaser at
least two (2) Business Days prior to the related Closing Date.
ARTICLE IV
PURCHASE PRICE
Section 4.01 Purchase Price.
The Purchase Price for each Mortgage Loan shall be the percentage of
par as stated in the related Purchase Price and Terms Agreement (subject to
adjustment as provided therein), multiplied by the aggregate Stated Principal
Balance, as of the related Cut-off Date, of the Mortgage Loans listed on the
related Mortgage Loan Schedule. If so provided in the related Purchase Price and
Terms Agreement, portions of the Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, at closing, accrued interest on the Stated Principal
Balance of the related Mortgage Loans as of the related Cut-off Date at the
weighted average Mortgage Loan Remittance Rate of the Mortgage Loans from the
related Cut-off Date through the day prior to the related Closing Date,
inclusive. The Purchase Price plus accrued interest as set forth in the
preceding paragraph shall be paid to the Seller by wire transfer of immediately
available funds to an account designated by the Seller in writing.
The Purchaser shall be entitled to (1) all scheduled principal due
after the related Cut-off Date, (2) all other recoveries of principal collected
after the related Cut-off Date, (provided, however, that all scheduled payments
of principal due on or before the Cut-off Date and collected by the Seller or
any successor servicer after the related Cut-off Date shall belong to the
Seller), and (3) all payments of interest on the Mortgage Loans net of
applicable Servicing Fees (minus that portion of any such payment which is
allocable to the period prior to the related Cut-off Date) and any amounts
collected from the Mortgagor in connection with the origination of the Mortgage
Loan. Payments of scheduled principal and interest prepaid for a Due Date beyond
the related Cut-off Date shall not be applied to the principal balance as of the
related Cut-off Date. Such prepaid amounts shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the Custodial
Account, which account is established for the benefit of the Purchaser for
subsequent remittance by the Seller to the Purchaser.
ARTICLE V
EXAMINATION OF MORTGAGE FILES
Section 5.01 Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing Date,
the Seller shall make the Mortgage File with respect to each Mortgage Loan to be
purchased, including a copy of the Assignment of Mortgage, available for
examination at a location acceptable to the Purchaser. Such examination may be
made by the Purchaser or its designee at any reasonable time before or after the
related Closing Date. If the Purchaser makes such examination prior to the
related Closing Date and determines, in its sole discretion, that any Mortgage
Loans are unacceptable to the Purchaser for any reason, such Mortgage Loans
shall be deleted from the related Mortgage Loan Schedule, and may be replaced by
a Qualified Substitute Mortgage Loan (or Loans) acceptable to the Purchaser. The
Purchaser may, at its option and without notice to the Seller, purchase some or
all of the Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
shall not affect the Purchaser's (or any of its successor's) rights to demand
repurchase, substitution or other relief as provided herein.
ARTICLE VI
CONVEYANCE FROM SELLER TO PURCHASER
Section 6.01 Conveyance of Mortgage Loans.
The Seller, simultaneously with the delivery of the Mortgage Loan
Schedule with respect to the related Mortgage Loan Package to be purchased on
each Closing Date, shall execute and deliver an Assignment and Conveyance
Agreement in the form attached hereto as Exhibit H (the "Assignment and
Conveyance Agreement"). The Seller shall cause the Servicing File retained by
the Seller, as servicer, pursuant to this Agreement to be appropriately
identified in the Seller's computer system and/or books and records, as
appropriate, to clearly reflect the sale of the related Mortgage Loan to the
Purchaser. The Seller shall release from its custody the contents of any
Servicing File retained by it only in accordance with this Agreement or the
Servicing Agreement, except when such release is required in connection with a
repurchase of any such Mortgage Loan pursuant to Section 9.03.
Section 6.02 Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of the Seller, an Affiliate of the Seller, the Purchaser or one
or more designees of the Purchaser, as the Purchaser shall select.
Notwithstanding the foregoing, each Mortgage and related Mortgage Note shall be
possessed solely by the Purchaser or the appropriate designee of the Purchaser,
as the case may be. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller after the related Cut-off Date
on or in connection with a Mortgage Loan shall be vested in the Purchaser or one
or more designees of the Purchaser; provided, however, that all funds received
on or in connection with a Mortgage Loan shall be received and held by the
Seller in trust for the benefit of the Purchaser or the appropriate designee of
the Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the National Flood Insurance Act of 1968, as amended, to
the Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports, as required by the ▇▇▇▇▇▇ Mae Guides. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Seller may be in the
form of microfilm or microfiche so long as the Seller complies with the
requirements of the ▇▇▇▇▇▇ ▇▇▇ Guides.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
Section 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
two (2) Business Days prior to the related Closing Date those Mortgage Loan
Documents set forth on Exhibit A hereto as required by the Custodial Agreement
with respect to each Mortgage Loan set forth on the related Mortgage Loan
Schedule.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the Initial Certification of the Custodian
in the form annexed to the Custodial Agreement. The Seller shall comply with the
terms of the Custodial Agreement and the Purchaser shall pay all fees and
expenses of the Custodian.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation, conversion or extension of any Mortgage
Loan entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two weeks of its
execution, and shall promptly provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
In the event any document required to be delivered to the Custodian
in the Custodial Agreement, including an original or copy of any document
submitted for recordation to the appropriate public recording office, is not so
delivered to the Custodian, or to such other Person as the Purchaser shall
designate in writing, within 90 days following the related Closing Date (other
than with respect to the Assignments of Mortgage which shall be delivered to the
Custodian in blank and recorded subsequently by the Purchaser or its designee),
and in the event that the Seller does not cure such failure within 30 days of
discovery or receipt of written notification of such failure from the Purchaser,
the related Mortgage Loan shall, upon the request of the Purchaser, be
repurchased by the Seller at the price and in the manner specified in Section
9.03. The foregoing repurchase obligation shall not apply in the event that the
Seller cannot deliver an original document submitted for recordation to the
appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided that the
Seller shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of a servicing
officer of the Seller, confirming that such documents have been accepted for
recording; provided that, upon request of the Purchaser and delivery by the
Purchaser to the Seller of a schedule of the related Mortgage Loans, the Seller
shall reissue and deliver to the Purchaser or its designee said officer's
certificate.
Except with respect to the MERS Designated Mortgage Loans, the
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage and any other fees or costs in transferring all original documents to
the Custodian or, upon written request of the Purchaser, to the Purchaser or the
Purchaser's designee. The Seller shall be responsible for recording the
Assignments of Mortgage, if requested.
Section 6.04 Quality Control Procedures.
The Seller must have an internal quality control program that
verifies, on a regular basis, the existence and accuracy of the legal documents,
credit documents, property appraisals, and underwriting decisions. The program
must be capable of evaluating and monitoring the overall quality of the it's
loan production and servicing activities. The program is to ensure that the
Mortgage Loans are originated and serviced in accordance with prudent mortgage
banking practices and accounting principles; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
Section 6.05 MERS Designated Loans.
With respect to each MERS Designated Mortgage Loan, the Seller
shall, on or prior to the related Closing Date, designate the Purchaser as the
Investor and the Custodian as custodian, and no Person shall be listed as
Interim Funder on the MERS System. In addition, on or prior to the related
Closing Date, Seller shall provide the Custodian and the Purchaser with a MERS
Report listing the Purchaser as the Investor, the Custodian as custodian and no
Person as Interim Funder with respect to each MERS Designated Mortgage Loan.
ARTICLE VII
SERVICING OF THE MORTGAGE LOANS
Section 7.01 Servicing.
The Mortgage Loans have been sold by the Seller to the Purchaser on
a servicing retained basis.
The Purchaser shall retain the Seller as independent contract
servicer of the Mortgage Loans pursuant to and in accordance with the terms and
conditions contained in the Servicing Agreement. The Purchaser and Seller shall
execute the Servicing Agreement on the initial Closing Date.
Pursuant to the Servicing Agreement, the Seller shall begin
servicing the Mortgage Loans on behalf of the Purchaser and shall be entitled to
the Servicing Fee and any Ancillary Income with respect to such Mortgage Loans
from the related Closing Date until the termination of the Servicing Agreement
with respect to any of the Mortgage Loans as set forth in the Servicing
Agreement. The Seller shall conduct such servicing in accordance with the terms
of the Servicing Agreement.
ARTICLE VIII
[RESERVED]
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER; REMEDIES FOR BREACH
Section 9.01 Representations and Warranties Regarding the Seller.
The Seller represents, warrants and covenants to the Purchaser that
as of the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Seller is a federal savings
bank duly organized, validly existing, and in good standing under the laws of
the United States and has all licenses necessary to carry on its business as now
being conducted and is licensed, qualified and in good standing in the states
where each Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type conducted by
the Seller. The Seller has power and authority to execute and deliver this
Agreement and to perform its obligations hereunder; the execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement has been duly executed and delivered and constitutes the valid, legal,
binding and enforceable obligation of the Seller, except as enforceability may
be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors and (ii) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law. All requisite action has been taken by the
Seller to make this Agreement valid and binding upon the Seller in accordance
with its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from any
court, governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter, by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(g) [Reserved];
(h) Anti-Money Laundering Laws. The Seller has complied with all
applicable anti-money laundering laws, regulations and executive orders,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); the Seller has established an anti-money
laundering compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination of each
Mortgage Loan for purposes of the Anti-Money Laundering Laws, including with
respect to the legitimacy of the applicable Mortgagor and the origin of the
assets used by the said Mortgagor to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws. Additionally, no
Mortgage Loan is subject to nullification pursuant to Executive Order 13224 (the
"Executive Order") or the regulations promulgated by the Office of Foreign
Assets Control of the United States Department of Treasury (the "OFAC
Regulations") or in violation of the Executive Order or the OFAC Regulations;
and no Mortgagor is subject to the provisions of such Executive Order or the
OFAC Regulations nor listed as a "blocked person" for purposes of the OFAC
Regulations;
(i) [Reserved];
(j) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio at
the related Closing Date as to which the representations and warranties set
forth in Section 9.02 could be made and such selection was not made in a manner
so as to affect adversely the interests of the Purchaser;
(k) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby (including
any Securitization Transaction or Whole Loan Transfer) contains or will contain
any untrue statement of material fact or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading; and
(l) Insured Depository Institution Representations. The Seller is an
"insured depository institution" as that term is defined in Section 1813(c)(2)
of Title 12 of the United States Code, as amended, and accordingly, the Seller
makes the following additional representations and warranties:
(i) This Agreement between the Purchaser and the Seller
conforms to all applicable statutory and regulatory
requirements; and
(ii) This Agreement is (1) executed contemporaneously
with the agreement reached by the Purchaser and the Seller,
(2) approved by a specific corporate or banking association
resolution by the Seller's board of directors, which approval
shall be reflected in the minutes of said board, and (3) an
official record of the Seller. A copy of such resolution,
certified by a vice president or higher officer of the Seller
has been provided to the Purchaser.
Section 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that, as
to each Mortgage Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments not yet thirty (30) days delinquent, have been made and
credited. No payment required under the Mortgage Loan is thirty (30) days or
more delinquent nor has any payment under the Mortgage Loan been thirty (30)
days or more delinquent at any time since the origination of the Mortgage Loan,
other than as set forth on the related Mortgage Loan Schedule;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the Mortgage Note or date of disbursement of
the Mortgage Loan proceeds, whichever is earlier, to the day which precedes by
one month the related Due Date of the first installment of principal and
interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy and the
title insurer, if any, to the extent required by the policy, and its terms are
reflected on the related Mortgage Loan Schedule, if applicable. No Mortgagor has
been released, in whole or in part, except in connection with an assumption
agreement, approved by the issuer of any related PMI Policy and the title
insurer, to the extent required by the policy, and which assumption agreement is
part of the Mortgage Loan File delivered to the Custodian or to such other
Person as the Purchaser shall designate in writing and the terms of which are
reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto, and no Mortgagor was a debtor in any state or Federal
bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the ▇▇▇▇▇▇ Mae Guides or by
▇▇▇▇▇▇▇ Mac, as well as all additional requirements set forth in Section 2.10 of
the Servicing Agreement. If required by the National Flood Insurance Act of
1968, as amended, each Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration as in effect which policy conforms to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac
requirements, as well as all additional requirements set forth in Section 2.10
of the Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor's cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is not
a "master" or "blanket" hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in, and
has no knowledge of the Mortgagor's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of either including,
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and all predatory, abusive and fair lending
laws applicable to the Mortgage Loan, including, without limitation, any
provisions relating to the Illinois Interest Act and Prepayment Penalties, have
been complied with, the consummation of the transactions contemplated hereby
will not involve the violation of any such laws or regulations, and the Seller
shall maintain in its possession, available for the Purchaser's inspection, and
shall deliver to the Purchaser upon demand, evidence of compliance with all such
requirements. This representation and warranty is a Deemed Material and Adverse
Representation;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Type of Mortgaged Property. With respect to a Mortgage Loan that
is not a Co-op Loan, the Mortgaged Property is a fee simple estate or a
leasehold estate located in a jurisdiction in which the use of a leasehold
estate for residential properties is a widely accepted practice that consists of
a single parcel of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual residential
condominium unit in a condominium project, or an individual unit in a planned
unit development, or an individual unit in a residential cooperative housing
corporation; provided, however, that any condominium unit, planned unit
development or residential cooperative housing corporation shall conform with
the Underwriting Guidelines. No portion of the Mortgaged Property (or underlying
Mortgaged Property, in the case of a Co-op Loan) is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes (as described under the ▇▇▇▇▇▇
Mae Guides); provided, that Mortgaged Properties which contain a home office
shall not be considered as being used for commercial purposes as long as the
Mortgaged Property has not been altered for commercial purposes and is not
storing any chemicals or raw materials other than those commonly used for
homeowner repair, maintenance and/or household purposes. None of the Mortgaged
Properties are manufactured homes, log homes, mobile homes, geodesic domes or
other unique property types;
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) on the Mortgaged Property,
including all buildings and improvements on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien of the
Mortgage is subject only to:
(i) with respect to a Second Lien Loan only, the lien of the first
mortgage on the Mortgaged Property;
(ii) the lien of current real property taxes and assessments not
yet due and payable;
(iii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the
date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of
the Mortgage Loan and (a) specifically referred to or
otherwise considered in the appraisal made for the originator
of the Mortgage Loan or (b) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(iv) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged
Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected first lien (with respect
to a First Lien Loan) or second lien (with respect to a Second Lien Loan) and
first priority (with respect to a First Lien Loan) or second priority (with
respect to a Second Lien Loan) security interest on the property described
therein and the Seller has full right to sell and assign the same to the
Purchaser.
(k) Valid First or Second Priority Security Interest. With respect
to any Co-op Loan, the related Mortgage is a valid, subsisting, enforceable and
perfected, first priority security interest (with respect to a First Lien Loan)
or second priority security interest (with respect to a Second Lien Loan) on the
related cooperative shares securing the Mortgage Note, subject only to (a) liens
of the related residential cooperative housing corporation for unpaid
assessments representing the Mortgagor's pro rata share of the related
residential cooperative housing corporation's payments for its blanket mortgage,
current and future real property taxes, insurance premiums, maintenance fees and
other assessments to which like collateral is commonly subject and (b) other
matters to which like collateral is commonly subject which do not materially
interfere with the benefits of the security interest intended to be provided by
the related Security Agreement;
(l) Request for Notice; No Consent Required. With respect to any
Second Lien Loan, where required or customary in the jurisdiction in which the
Mortgaged Property is located, the original lender has filed for record a
request for notice of any action by the related senior lienholder, and the
Seller has notified such senior lienholder in writing of the existence of the
Second Lien Loan and requested notification of any action to be taken against
the Mortgagor by such senior lienholder. Either (a) no consent for the Second
Lien Loan is required by the holder of the related first lien or (b) such
consent has been obtained and is contained in the Mortgage File. This
representation and warranty is a Deemed Material and Adverse Representation;
(m) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Penalties). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. To the knowledge of
the Seller, no fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of the
Seller in connection with the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan. No fraud, error,
omission, misrepresentation, negligence or similar occurrence with respect to a
Mortgage Loan has taken place on the part of any other Person, including without
limitation, the Mortgagor, any appraiser, any builder or developer, or any other
party involved in the origination of the Mortgage Loan or in the application for
any insurance in relation to such Mortgage Loan.
(n) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(o) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and upon
the sale of the Mortgage Loans to the Purchaser, the Seller will retain the
Mortgage Files or any part thereof with respect thereto not delivered to the
Custodian, the Purchaser or the Purchaser's designee, in trust only for the
purpose of servicing and supervising the servicing of each Mortgage Loan. The
Mortgage Loan is not assigned or pledged, and the Seller has good, indefeasible
and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement and following the sale of each Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest. The
Seller intends to relinquish all rights to possess, control and monitor the
Mortgage Loan.
(p) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(q) CLTV, LTV and PMI Policy. No Mortgage Loan that is a Second Lien
Loan has a CLTV greater than 100%. No Mortgage Loan has an LTV greater than
100%. Any Mortgage Loan that had at the time of origination an LTV in excess of
80% is insured as to payment defaults by a PMI Policy. Any PMI Policy in effect
covers the related Mortgage Loan for the life of such Mortgage Loan. All
provisions of such PMI Policy have been and are being complied with, such policy
is in full force and effect, and all premiums due thereunder have been paid. No
action, inaction, or event has occurred and no state of facts exists that has,
or will result in the exclusion from, denial of, or defense to coverage. Any
Mortgage Loan subject to a PMI Policy obligates the Mortgagor thereunder to
maintain the PMI Policy and to pay all premiums and charges in connection
therewith or is lender-paid. The Mortgage Interest Rate for the Mortgage Loan as
set forth on the related Mortgage Loan Schedule is net of any such insurance
premium if the related PMI Policy is lender-paid;
(r) Title Insurance. With respect to a Mortgage Loan which is not a
Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title insurance
policy, or with respect to any Mortgage Loan for which the related Mortgaged
Property is located in California a CLTA lender's title insurance policy, or
other generally acceptable form of policy or insurance acceptable to ▇▇▇▇▇▇ ▇▇▇
or ▇▇▇▇▇▇▇ Mac and each such title insurance policy is issued by a title insurer
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the Seller, its
successors and assigns, as to the first (with respect to a First Lien Loan) or
second (with respect to a Second Lien Loan) priority lien of the Mortgage in the
original principal amount of the Mortgage Loan (or to the extent a Mortgage Note
provides for negative amortization, the maximum amount of negative amortization
in accordance with the Mortgage), subject only to the exceptions contained in
clauses (i), (ii) and (iii) of paragraph (j) of this Section 9.02, and in the
case of Adjustable Rate Mortgage Loans, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender's title insurance policy, and such lender's title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender's title insurance policy, and no
prior holder of the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(s) No Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its Affiliates nor
any of their respective predecessors, have waived any default, breach, violation
or event which would permit acceleration;
(t) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(u) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(v) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. Principal payments on the Mortgage Loan commenced no more than
seventy days after funds were disbursed in connection with the Mortgage Loan.
The Mortgage Interest Rate as well as, in the case of an Adjustable Rate
Mortgage Loan, the Lifetime Rate Cap and the Periodic Cap are as set forth on
the related Mortgage Loan Schedule. The Mortgage Note is payable in monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization (other than with
respect to Option ARM Mortgage Loans and Balloon Mortgage Loans). Unless
otherwise specified on the related Mortgage Loan Schedule, the Mortgage Loan is
payable on the first day of each month. Except for Balloon Mortgage Loans, the
Mortgage Loan does not require a balloon payment on its stated maturity date;
(w) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(x) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
subject to such exceptions as the Seller shall have approved; provided the
Purchaser is notified of the Seller's exception policies. The Mortgage Note and
Mortgage are on forms acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae and the Seller has
not made any representations to a Mortgagor that are inconsistent with the
mortgage instruments used;
(y) Occupancy of the Mortgaged Property. As of the related Closing
Date the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities. Unless otherwise specified on the related Mortgage
Loan Schedule, the Mortgagor represented at the time of origination of the
Mortgage Loan that the Mortgagor would occupy the Mortgaged Property as the
Mortgagor's primary residence;
(z) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(aa) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(bb) [Reserved];
(cc) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under the Custodial Agreement for each Mortgage Loan have been
delivered to the Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit A hereto, except for such
documents the originals of which have been delivered to the Custodian;
(dd) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project such Mortgage Loan was originated in accordance with, and the Mortgaged
Property meets the guidelines set forth in the Underwriting Guidelines;
(ee) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(ff) Due-On-Sale. The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(gg) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first Interest
Rate Adjustment Date, a related Mortgage Loan may only be assumed if the party
assuming such Mortgage Loan meets certain credit requirements stated in the
Mortgage Loan Documents;
(hh) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(ii) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first (with respect to a First Lien Loan)
or second (with respect to a Second Lien Loan) lien priority by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(jj) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property;
(kk) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller and with respect to the Mortgage Loan have been in all respects in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under the
control of, the Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state and federal
law and the provisions of the related Mortgage Note and Mortgage. An escrow of
funds is not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Seller have been capitalized under the Mortgage or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect to
each Mortgage Note which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note. The Seller
executed and delivered any and all notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly Payment adjustments. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and credited;
(ll) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(mm) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed on or
prior to the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable hazard insurance
policy, PMI Policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability of
the timely payment of the full amount of the loss otherwise due thereunder to
the insured), irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by the Seller or by any officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(nn) No Violation of Environmental Laws. There is no pending action
or proceeding directly involving the Mortgaged Property in which compliance with
any environmental law, rule or regulation is an issue; there is no violation of
any environmental law, rule or regulation with respect to the Mortgaged
Property; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite to
use and enjoyment of said property;
(oo) Servicemembers' Civil Relief Act. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Relief Act, or other similar state statute;
(pp) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser;
(qq) Disclosure Materials. The Mortgagor has executed a statement to
the effect that the Mortgagor has received all disclosure materials required by,
and the Seller has complied with, all applicable law with respect to the making
of the Mortgage Loans. The Seller shall maintain such statement in the Mortgage
File;
(rr) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(ss) Escrow Analysis. If applicable, with respect to each Mortgage,
the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(tt) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices;
(uu) No Default Under First Lien. With respect to each Second Lien
Loan, the related First Lien Loan is in full force and effect, and there is no
default, lien, breach, violation or event which would permit acceleration
existing under such first lien Mortgage or Mortgage Note, and no event which,
with the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event which would
permit acceleration under such First Lien Loan. This representation and warranty
is a Deemed Material and Adverse Representation;
(vv) Right to Cure First Lien. With respect to each Second Lien
Loan, the related first lien Mortgage contains a provision which provides for
giving notice of default or breach to the mortgagee under the Mortgage Loan and
allows such mortgagee to cure any default under the related first lien Mortgage.
This representation and warranty is a Deemed Material and Adverse
Representation;
(ww) No Failure to Cure Default. The Seller has not received a
written notice of default of any senior mortgage loan related to the Mortgaged
Property which has not been cured;
(xx) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such Mortgage;
(yy) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground lease
will not terminate earlier than five years after the maturity date of the
Mortgage Loan; (3) the ground lease does not provide for termination of the
lease in the event of lessee's default without the mortgagee being entitled to
receive written notice of, and a reasonable opportunity to cure the default; (4)
the ground lease permits the mortgaging of the related Mortgaged Property; (5)
the ground lease protects the mortgagee's interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments that
have become due have been paid; and (7) the use of leasehold estates for
residential properties is a widely accepted practice in the jurisdiction in
which the Mortgaged Property is located;
(zz) Prepayment Penalty. Each Mortgage Loan that is subject to a
Prepayment Penalty as provided in the related Mortgage Note is identified on the
related Mortgage Loan Schedule. With respect to each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is enforceable and each
Prepayment Penalty is permitted pursuant to federal, state and local law. Each
such Prepayment Penalty is in an amount not more than the maximum amount
permitted under applicable law and no such Prepayment Penalty may provide for a
term in excess of five (5) years with respect to Mortgage Loans originated prior
to October 1, 2002. With respect to Mortgage Loans originated on or after
October 1, 2002, except as set forth on the related Mortgage Loan Schedule, the
duration of the Prepayment Penalty period shall not exceed three (3) years from
the date of the Mortgage Note unless the Mortgage Loan was modified to reduce
the Prepayment Penalty period to no more than three (3) years from the date of
the related Mortgage Note and the Mortgagor was notified in writing of such
reduction in Prepayment Penalty period. With respect to any Mortgage Loan that
contains a provision permitting imposition of a Prepayment Penalty upon a
prepayment prior to maturity: (i) the Mortgage Loan provides some benefit to the
Mortgagor (e.g., a rate or fee reduction) in exchange for accepting such
Prepayment Penalty, (ii) prior to the Mortgage Loan's origination, the Mortgagor
was offered the option of obtaining a mortgage loan that did not require payment
of such a penalty, (iii) the Prepayment Penalty was adequately disclosed to the
Mortgagor in the mortgage loan documents pursuant to applicable state, local and
federal law, and (iv) notwithstanding any state, local or federal law to the
contrary, the Seller shall not impose such Prepayment Penalty in any instance
when the mortgage debt is accelerated or paid off in connection with the workout
of a delinquent Mortgage Loan or as a result of the Mortgagor's default in
making the Mortgage Loan payments. This representation and warranty is a Deemed
Material and Adverse Representation;
(aaa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act. No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or local
law. This representation and warranty is a Deemed Material and Adverse
Representation;
(bbb) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage
under Section 860G(a)(3) of the Code;
(ccc) Tax Service Contract. Each Mortgage Loan is covered by a paid
in full, life of loan, tax service contract issued by a provider reasonably
acceptable to the Purchaser and such contract is transferable at no cost to the
Purchaser or any Successor Servicer;
(ddd) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan;
(eee) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(fff) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, (i) a search for filings of financing statements has been made by a
company competent to make the same, which company is acceptable to ▇▇▇▇▇▇ ▇▇▇
and qualified to do business in the jurisdiction where the cooperative unit is
located, and such search has not found anything which would materially and
adversely affect the Co-op Loan, (ii) the stock that is pledged as security for
the Mortgage Loan is held by a person as a "tenant-stockholder" and the related
cooperative corporation that owns title to the related cooperative apartment
building is a "cooperative housing corporation," each within the meaning of
Section 216 of the Code and (iii) there is no prohibition against pledging the
shares of the cooperative corporation or assigning the Co-op Lease;
(ggg) Mortgagor Bankruptcy. On or prior to the Closing Date, the
Mortgagor has not filed and a bankruptcy petition or has not become the subject
of involuntary bankruptcy proceedings or has not consented to the filing of a
bankruptcy proceeding against it or to a receiver being appointed in respect of
the related Mortgaged Property;
(hhh) [Reserved].
(iii) [Reserved].
(jjj) ▇▇▇▇▇▇ Mae Guides Anti-Predatory Lending Eligibility. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility for
purchase requirements of ▇▇▇▇▇▇ ▇▇▇ Guides. This representation and warranty is
a Deemed Material and Adverse Representation;
(kkk) Mortgagor Selection. The Mortgagor was not encouraged or
required to select a Mortgage Loan product offered by the Seller which is a
higher cost product designed for less creditworthy mortgagors, unless at the
time of the Mortgage Loan's origination, such Mortgagor did not qualify taking
into account such facts as, without limitation, the Mortgage Loan's requirements
and the Mortgagor's credit history, income, assets and liabilities and
debt-to-income ratios for a lower-cost credit product then offered by the Seller
or any Affiliate of the Seller. If, at the time of loan application, the
Mortgagor may have qualified for a lower-cost credit product then offered by any
mortgage lending Affiliate of the Seller, the Seller referred the related
Mortgagor's application to such Affiliate for underwriting consideration. For a
Mortgagor who seeks financing through a Mortgage Loan originator's higher-priced
subprime lending channel, the Mortgagor was directed towards or offered the
Mortgage Loan originator's standard mortgage line if the Mortgagor was able to
qualify for one of the standard products. This representation and warranty is a
Deemed Material and Adverse Representation;
(lll) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan does not rely solely on the
extent of the related Mortgagor's equity in the collateral as the principal
determining factor in approving such extension of credit. The methodology
employed objective criteria such as the Mortgagor's income, assets and
liabilities, to the proposed mortgage payment and, based on such methodology,
the Mortgage Loan's originator made a reasonable determination that at the time
of origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan. Such underwriting methodology confirmed that at the time of
origination (application/approval) the related Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(mmm) Purchase of Insurance. No Mortgagor was required to purchase
any single premium credit insurance policy (e.g., life, mortgage, disability,
property, accident, unemployment or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of credit. No
Mortgagor obtained a prepaid single-premium credit insurance policy (e.g., life,
mortgage, disability, property, accident, unemployment, or health insurance) in
connection with the origination of the Mortgage Loan. No proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan. This representation and warranty is a Deemed
Material and Adverse Representation;
(nnn) Points and Fees. No Mortgagor was charged "points and fees"
(whether or not financed) in an amount greater than (i) $1,000, or (ii) 5% of
the principal amount of such Mortgage Loan, whichever is greater. For purposes
of this representation, such 5% limitation is calculated in accordance with
▇▇▇▇▇▇ Mae's anti-predatory lending requirements as set forth in the ▇▇▇▇▇▇ ▇▇▇
Guides and "points and fees" (x) include origination, underwriting, broker and
finder fees and charges that the mortgagee imposed as a condition of making the
Mortgage Loan, whether they are paid to the mortgagee or a third party, and (y)
exclude bona fide discount points, fees paid for actual services rendered in
connection with the origination of the Mortgage Loan (such as attorneys' fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections), the cost of mortgage insurance or credit-risk price adjustments,
the costs of title, hazard, and flood insurance policies, state and local
transfer taxes or fees, escrow deposits for the future payment of taxes and
insurance premiums, and other miscellaneous fees and charges, which
miscellaneous fees and charges, in total, do not exceed 0.25% of the principal
amount of such Mortgage Loan. This representation and warranty is a Deemed
Material and Adverse Representation;
(ooo) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected or to
be collected in connection with the origination and servicing of each Mortgage
Loan, have been disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation. This representation and
warranty is a Deemed Material and Adverse Representation;
(ppp) Balloon Mortgage Loans. No Balloon Mortgage Loan has an
original stated maturity of less than seven (7) years;
(qqq) No Arbitration. No Mortgage Loan originated on or after August
1, 2004 requires the related Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan transaction.
This representation and warranty is a Deemed Material and Adverse
Representation;
(rrr) No Negative Amortization of Related First Lien Loan. With
respect to each Second Lien Loan, the related First Lien Loan does not permit
negative amortization. This representation and warranty is a Deemed Material and
Adverse Representation;
(sss) [Reserved].
(ttt) Simple Interest Mortgage Loans. With respect to each Mortgage
Loan that is a simple interest Mortgage Loan, the Mortgage Loan is identified on
the related Mortgage Loan Schedule as a simple interest Mortgage Loan, the
Mortgage Loan is required to be serviced as a simple interest Mortgage Loan
pursuant to the terms of the related Mortgage Note, and the servicing and
collection practices used in connection therewith have been in accordance with
legal, proper, prudent and customary practices for servicing simple interest
Mortgage Loans; and
(uuu) Option ARM Mortgage Loans. With respect to each Option ARM
Mortgage Loan, (a) the Seller (or a servicer on its behalf) either did not
provide different payment options after a "teaser period" or, if different
payment options were provided, applied each payment received under the Option
ARM Mortgage Loan correctly in accordance with Accepted Servicing Practices, (b)
unless otherwise set forth on the related Mortgage Loan Schedule, the Option ARM
Mortgage Loan has no negative amortization as of the related Closing Date and
(c) such Option ARM Mortgage Loans were serviced in accordance with Accepted
Servicing Practices and all payment histories are set forth on the related
Mortgage Loan Schedule that would be required to service the Option ARM Mortgage
Loans after the related Closing Date in accordance with Accepted Servicing
Practices.
Section 9.03 Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and warranties
set forth in Sections 9.01 and 9.02 shall survive the sale of the Mortgage Loans
to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by either the Seller or the Purchaser of a breach of any of
the foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Seller of any such breach of a representation or warranty, which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case of
a representation and warranty relating to a particular Mortgage Loan), the
Seller shall use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, exercised no later than sixty (60) days following such
discovery by or notice to the Seller of any such breach, repurchase such
Mortgage Loan at the Repurchase Price. Notwithstanding the above sentence, (i)
within sixty (60) days after the earlier of either discovery by, or written
notice to, the Seller of any breach of the representation and warranty set forth
in clause (bbb) of Section 9.02, the Seller shall repurchase such Mortgage Loan
at the Repurchase Price and (ii) any breach of a Deemed Material and Adverse
Representation shall automatically be deemed to materially and adversely affect
the value of the Mortgage Loans or the interest of the Purchaser therein. In the
event that a breach shall involve any representation or warranty set forth in
Section 9.01, and such breach cannot be cured within 60 days of the earlier of
either discovery by or notice to the Seller of such breach, all of the Mortgage
Loans affected by such breach shall, at the Purchaser's option, exercised no
later than sixty (60) days following such discovery by or notice to the Seller
of any such breach, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth in
Section 9.02 (other than the representation and warranty set forth in clause
(bbb) of such Section or any Deemed Material Breach Representation) and the
Seller discovers or receives notice of any such breach within 120 days of the
related Closing Date, the Seller may, at the Purchaser's option and provided
that the Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
the Mortgage Loan as provided above, remove such Mortgage Loan (a "Deleted
Mortgage Loan") and substitute in its place a Qualified Substitute Mortgage Loan
or Loans, provided that any such substitution shall be effected not later than
120 days after the related Closing Date. If the Seller has no Qualified
Substitute Mortgage Loan, it shall repurchase the deficient Mortgage Loan at the
Repurchase Price. Any repurchase of a Mortgage Loan or Loans pursuant to the
foregoing provisions of this Section 9.03 shall be accomplished by either (a) if
the Servicing Agreement has been entered into and is in effect, deposit in the
Custodial Account of the amount of the Repurchase Price for distribution to the
Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being
held in the Custodial Account for future distribution or (b) if the Servicing
Agreement has not been entered into or is no longer in effect, by direct
remittance of the Repurchase Price to the Purchaser or its designee in
accordance with the Purchaser's instructions.
At the time of repurchase or substitution, the Purchaser and the
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has taken
place, amend the Mortgage Loan Schedule to reflect the withdrawal of the Deleted
Mortgage Loan from this Agreement, and, in the case of substitution, identify a
Qualified Substitute Mortgage Loan and amend the related Mortgage Loan Schedule
to reflect the addition of such Qualified Substitute Mortgage Loan to this
Agreement. In connection with any such substitution, the Seller shall be deemed
to have made as to such Qualified Substitute Mortgage Loan the representations
and warranties set forth in this Agreement except that all such representations
and warranties set forth in this Agreement shall be deemed made as of the date
of such substitution. The Seller shall effect such substitution by delivering to
the Custodian or to such other party as the Purchaser may designate in writing
for such Qualified Substitute Mortgage Loan the documents required by Section
6.03 and the Custodial Agreement, with the Mortgage Note endorsed as required by
Section 6.03 and the Custodial Agreement. No substitution will be made in any
calendar month after the Determination Date for such month. The Seller shall
remit directly to the Purchaser, or its designee in accordance with the
Purchaser's instructions the Monthly Payment less the Servicing Fee due, if any,
on such Qualified Substitute Mortgage Loan or Loans in the month following the
date of such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained by the
Seller. For the month of substitution, distributions to the Purchaser shall
include the Monthly Payment due on any Deleted Mortgage Loan in the month of
substitution, and the Seller shall thereafter be entitled to retain all amounts
subsequently received by the Seller in respect of such Deleted Mortgage Loan.
For any month in which the Seller substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine the amount
(if any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by the Seller directly to the Purchaser or its
designee in accordance with the Purchaser's instructions within two (2) Business
Days of such substitution. Accordingly, on the date of such substitution, the
Seller will deposit from its own funds into the Custodial Account an amount
equal to the amount of such shortfall at the Mortgage Loan Remittance Rate.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and its present and former directors,
officers, employees and agents and any Successor Servicer and its present and
former directors, officers, employees and agents and hold such parties harmless
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of any representation or warranty contained in this
Agreement or any Reconstitution Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Section 9.03 to cure, substitute for
or repurchase a defective Mortgage Loan and to indemnify the Purchaser and
Successor Servicer as provided in this Section 9.03 and in Section 14.01
constitute the sole remedies of the Purchaser respecting a breach of the
foregoing representations and warranties. For purposes of this paragraph
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement and "Successor Servicer" shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were "Successor Servicers" pursuant to this Agreement.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Sections 9.01 and 9.02
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the
Seller to cure such breach or repurchase such Mortgage Loan as specified above,
and (iii) demand upon the Seller by the Purchaser for compliance with this
Agreement.
Section 9.04 Repurchase of Mortgage Loans with Early Payment
Defaults. If the related Mortgagor is thirty (30) or more days delinquent with
respect to (i) the Mortgage Loan's first Monthly Payment after origination or
(ii) either of the Mortgage Loan's first two (2) Monthly Payments after the
related Closing Date, the Seller, at the Purchaser's option, shall repurchase
such Mortgage Loan from the Purchaser at a price equal to the Repurchase Price.
The Purchaser shall notify the Seller and request a repurchase within sixty (60)
days after the related Mortgagor's failure to make such payment and the Seller
shall repurchase such delinquent Mortgage Loan within twenty (20) days of such
request.
Section 9.05 Premium Recapture. With respect to any Mortgage Loan
that prepays in full during the first sixty (60) days following the related
Closing Date, the Seller shall pay the Purchaser, within three (3) Business Days
after such prepayment in full or repurchase, an amount equal to the Purchase
Price Percentage for such Mortgage Loan over par, multiplied by the outstanding
principal balance of such Mortgage Loan as of the related Cut-off Date.
ARTICLE X
CLOSING
Section 10.01 Conditions to Closing.
The closing for the purchase and sale of each Mortgage Loan Package
shall take place on the related Closing Date. At the Purchaser's option, each
Closing shall be either: by telephone, confirmed by letter or wire as the
parties shall agree, or conducted in person, at such place as the parties shall
agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
i. at least two Business Days prior to the related Closing Date,
the Seller shall deliver to the Purchaser a magnetic diskette,
or transmit by modem or email, a listing on a loan-level basis
of the necessary information to compute the Purchase Price of
the Mortgage Loans delivered on such Closing Date (including
accrued interest), and prepare a Mortgage Loan Schedule;
ii. all of the representations and warranties of the Seller under
this Agreement and under the Servicing Agreement shall be true
and correct as of the related Closing Date and no event shall
have occurred which, with notice or the passage of time, would
constitute a default under this Agreement or an Event of
Default under the Servicing Agreement;
iii. the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing documents
as specified in Article XI of this Agreement, in such forms as
are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required
pursuant to the terms hereof;
iv. the Seller shall have delivered and released to the Custodian
all documents required pursuant to the Custodial Agreement;
and
v. all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Article IV of this Agreement, by wire transfer of immediately
available funds to the account designated by the Seller.
ARTICLE XI
CLOSING DOCUMENTS
Section 11.01 Required Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(1) this Agreement (to be executed and delivered only
for the initial Closing Date);
(2) the Servicing Agreement, dated as of the initial
Cut-off Date (to be executed and delivered only for the
initial Closing Date);
(3) with respect to the initial Closing Date, the
Custodial Agreement, dated as of the initial Cut-off Date;
(4) the related Mortgage Loan Schedule (one copy to be
attached to the Custodian's counterpart of the Custodial
Agreement in connection with the initial Closing Date, and one
copy to be attached to the related Assignment and Conveyance
as the Mortgage Loan Schedule thereto);
(5) a Custodian's Certification, as required under the
Custodial Agreement, in the form of Exhibit 2 to the Custodial
Agreement;
(6) a Custodial Account Letter Agreement or a Custodial
Account Certification, as applicable, as required under the
Servicing Agreement;
(7) an Escrow Letter Agreement or an Escrow Account
Certification, as applicable, as required under the Servicing
Agreement;
(8) with respect to the initial Closing Date, an
Officer's Certificate, in the form of Exhibit C hereto with
respect to each of the Seller, including all attachments
thereto; with respect to subsequent Closing Dates, an
Officer's Certificate upon request of the Purchaser;
(9) with respect to the initial Closing Date, an Opinion
of Counsel of the Seller (who may be an employee of the
Seller), in the form of Exhibit D hereto ("Opinion of Counsel
of the Seller"); with respect to subsequent Closing Dates, an
Opinion of Counsel of the Seller upon request of the
Purchaser;
(10) with respect to the initial Closing Date, an
Opinion of Counsel of the Custodian (who may be an employee of
the Custodian), in the form of an exhibit to the Custodial
Agreement(s);
(11) a Security Release Certification, in the form of
Exhibit E or F, as applicable, hereto executed by any person,
as requested by the Purchaser, if any of the Mortgage Loans
have at any time been subject to any security interest, pledge
or hypothecation for the benefit of such person;
(12) a certificate or other evidence of merger or change
of name, signed or stamped by the applicable regulatory
authority, if any of the Mortgage Loans were acquired by the
Seller by merger or acquired or originated by the Seller while
conducting business under a name other than its present name,
if applicable;
(13) with respect to the initial Closing Date, the
Underwriting Guidelines to be attached hereto as Exhibit G and
with respect to each subsequent Closing Date, the Underwriting
Guidelines to be attached to the related Assignment and
Conveyance;
(14) Assignment and Conveyance Agreement in the form of
Exhibit H hereto, and all exhibits thereto; and
(15) a MERS Report reflecting the Purchaser as Investor,
the Custodian as custodian and no Person as Interim Funder for
each MERS Designated Mortgage Loan.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
ARTICLE XII
COSTS
Section 12.01 Costs.
The Purchaser shall pay any commissions due its salesmen and the
legal fees and expenses of its attorneys and custodial fees. All other costs and
expenses incurred in connection with the transfer and delivery of the Mortgage
Loans and the Servicing Rights including recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage for a
single recordation with respect to each Assignment of Mortgage, and the Seller's
attorney's fees, shall be paid by the Seller.
ARTICLE XIII
COOPERATION OF SELLER WITH A RECONSTITUTION
Section 13.01 Reconstitution of Mortgage Loans.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each, a "Reconstitution Date") at the Purchaser's sole option, the Purchaser
may effect a sale (each, a "Reconstitution") of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
(i) ▇▇▇▇▇▇ ▇▇▇ under its Cash Purchase Program or MBS
Program (Special Servicing Option) (each, a "▇▇▇▇▇▇ Mae
Transfer"); or
(ii) ▇▇▇▇▇▇▇ Mac (the "▇▇▇▇▇▇▇ Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole
Loan Transfers; or
(iv) one or more trusts or other entities to be formed as
part of one or more Securitization Transactions.
The Seller agrees to execute in connection with any Agency Transfer,
any and all pool purchase contracts, and/or agreements reasonably acceptable to
the Seller among the Purchaser, the Seller, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac (as the
case may be) and any servicer in connection with a Whole Loan Transfer, a
seller's warranties and servicing agreement or a participation and servicing
agreement in form and substance reasonably acceptable to the parties, and in
connection with a Securitization Transaction, a pooling and servicing agreement
in form and substance reasonably acceptable to the parties or an Assignment and
Recognition Agreement substantially in the form attached hereto as Exhibit I
(collectively, the agreements referred to herein are designated, the
"Reconstitution Agreements"), together with an opinion of counsel with respect
to such Reconstitution Agreements.
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser; and (3) (3) to
restate the representations and warranties set forth in Section 9.01 of this
Agreement and the Servicing Agreement as of the Reconstitution Date, or make
such representations or warranties as may be required by any Rating Agency in
connection with such Reconstitution. The Seller shall provide to such servicer
or issuer, as the case may be, and any other participants or purchasers in such
Reconstitution: (i) any and all information and appropriate verification of
information which may be reasonably available to the Seller or its Affiliates,
whether through letters of its auditors and counsel or otherwise, as the
Purchaser or any such other participant shall request; (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as are
reasonably believed necessary by the Purchaser or any such other participant;
and (iii) to execute, deliver and satisfy all conditions set forth in any
indemnity agreement required by the Purchaser or any such participant,
including, without limitation, an Indemnification and Contribution Agreement in
substantially the form attached hereto as Exhibit B. Moreover, the Seller agrees
to cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements. The Seller shall indemnify the Purchaser, each
Affiliate of the Purchaser participating in the Reconstitution and each Person
who controls the Purchaser or such Affiliate and their respective present and
former 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 each of them may sustain arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
information provided by or on behalf of the Seller regarding the Seller, the
Seller's or other originator's static pool information, the Mortgage Loans or
the Underwriting Guidelines set forth in any offering document prepared in
connection with any Reconstitution. For purposes of the previous sentence,
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller, acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute each
assignment of mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by the prospective purchaser or
trustee, as applicable, upon the Seller's receipt thereof. Additionally, the
Seller shall prepare and execute, at the direction of the Purchaser, any note
endorsement in connection with any and all seller/servicer agreements.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and, if the Servicing
Agreement shall remain in effect with respect to the related Mortgage Loan
Package, shall continue to be serviced in accordance with the terms of this
Agreement and the Servicing Agreement and with respect thereto this Agreement
shall remain in full force and effect.
ARTICLE XIV
THE SELLER
Section 14.01 Additional Indemnification by the Seller; Third Party
Claims.
(a) The Seller shall indemnify the Purchaser and its present and
former directors, officers, employees and agents and any Successor Servicer and
its present and former directors, officers, employees and agents, and hold such
parties harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses (including legal fees and expenses incurred
in connection with the enforcement of the Seller's indemnification obligation
under this Section 14.01) and related costs, judgments, and any other costs,
fees and expenses that such parties may sustain in any way related to the
failure of the Seller to perform its duties in strict compliance with the terms
of this Agreement or any Reconstitution Agreement entered into pursuant to
Article XIII or any breach of any of Seller's representation, warranties and
covenants set forth in this Agreement. For purposes of this paragraph
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement and "Successor Servicer" shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were "Successor Servicers" pursuant to this Agreement.
(b) Promptly after receipt by an indemnified party under this
Section 14.01 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 14.01, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 14.01, except to the extent that it has
been prejudiced in any material respect, or from any liability which it may
have, otherwise than under this Section 14.01. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party or parties shall have reasonably concluded that there may
be legal defenses available to it or them and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party for
expenses incurred by the indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with one local counsel, if applicable)), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii).
Section 14.02 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, 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, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller shall be a party, or any Person succeeding to the business of the
Seller, shall be the successor of the Seller hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least $25,000,000.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed three fiscal years respecting which such statements are
available, as well as a Consolidated Statement of Condition of the Seller at the
end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to members or stockholders of the Seller or the
public at large). The Seller, if it has not already done so, agrees to furnish
promptly to the Purchaser copies of the statements specified above; provided,
however, any statements referenced above shall be only required to be provided
by the Seller to the Purchaser if the Seller is no longer a public company whose
financial statements are readily available to the Purchaser without the Seller's
assistance. The Seller shall also make available information on its servicing
performance with respect to loans serviced for others, including delinquency
ratios.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
Section 15.02 Mandatory Delivery.
The sale and delivery on the related Closing Date of the Mortgage
Loans described on the related Mortgage Loan Schedule is mandatory from and
after the date of the execution of the related Purchase Price and Terms
Agreement, it being specifically understood and agreed that each Mortgage Loan
is unique and identifiable on the date hereof and that an award of money damages
would be insufficient to compensate the Purchaser for the losses and damages
incurred by the Purchaser (including damages to prospective purchasers of the
Mortgage Loans) in the event of the Seller's failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage Loans
or (iii) one or more Mortgage Loans otherwise acceptable to the Purchaser on or
before the related Closing Date.
Section 15.03 Notices.
All demands, notices and 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 other party at the address as follows:
i. if to the Seller:
IndyMac Bank, F.S.B.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing - Transaction Management
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ii. if to the Purchaser:
Barclays Bank PLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
Barclays Bank PLC, as administrator
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 15.04 Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 15.05 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 15.06 [Reserved].
Section 15.07 Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to treat
the transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the arrangement
under which the Mortgage Loans are held shall be consistent with classification
of such arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review. The
Seller intends to reflect the transfer of the Mortgage Loans as a sale on the
books and records of the Seller and the Seller has determined that the
disposition of the Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for tax and accounting purposes;
Section 15.08 Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. There shall be no limitation on the number of assignments
or transfers allowable by the Purchaser with respect to the Mortgage Loans and
this Agreement except that the Purchaser may not assign Mortgage Loans in any
Mortgage Loan Package to more than four (4) assignees. In the event the
Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser's obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability to
the Seller with respect thereto.
Section 15.09 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 15.10 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 15.11 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 15.12 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 15.13 Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 15.14 [Reserved].
Section 15.15 No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or Affiliates, or by any independent contractors on the Seller's behalf,
to personally, by telephone or mail (via electronic means or otherwise), solicit
a Mortgagor under any Mortgage Loan for the purpose of refinancing a Mortgage
Loan, in whole or in part, without the prior written consent of the Purchaser.
Notwithstanding the foregoing, it is understood and agreed that the Seller, or
any of its respective Affiliates:
(i) may advertise its availability for handling refinancings
of mortgages in its portfolio, including the promotion
of terms it has available for such refinancings, through
the sending of letters or promotional material, so long
as it does not specifically target Mortgagors and so
long as such promotional material either is sent to the
mortgagors for all of the mortgages in the servicing
portfolio of the Seller and any of its Affiliates (those
it owns as well as those serviced for others); and
(ii) may provide pay-off information and otherwise cooperate
with individual mortgagors who contact it about
prepaying their mortgages by advising them of
refinancing terms and streamlined origination
arrangements that are available.
Promotions undertaken by the Seller or by any Affiliate of the
Seller which are directed to the general public at large (including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements), shall not constitute
solicitation under this Section 15.15.
Section 15.16 Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 15.17 Governing Law Jurisdiction; Consent to Service of
Process.
THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE SELLER
IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH
COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS
TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL
ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
Section 15.18 No Brokers.
The Seller has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans
Section 15.19 Reasonable Purchase Price.
The consideration received by the Seller upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans;
ARTICLE XVI
COMPLIANCE WITH REGULATION AB
Section 16.01 Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose
of Section 16 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Seller acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Seller acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable requests made by the
Purchaser or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Seller shall cooperate fully
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information reasonably necessary in the
good faith determination of the Purchaser or any Depositor to permit the
Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Seller, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans
provided that the Seller is servicing the Mortgage Loans of the related
Securitization, reasonably believed by the Purchaser or any Depositor to be
necessary in order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Seller by providing timely notice of requests for information
under these provisions and by reasonably limiting such requests to information
required, in the Purchaser's reasonable judgment, to comply with Regulation AB.
Section 16.02 Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser and to
any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 16.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) there are no
material legal or governmental proceedings pending (or known to be contemplated)
against the Seller or any Third-Party Originator; and (ii) there are no
affiliations, relationships or transactions relating to the Seller or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Section 16.03, the Seller shall, within five Business Days
following such request, confirm in writing the accuracy of the representations
and warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing, to
the requesting party.
Section 16.03 Information to Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall
(i) within five Business Days but in no event later than ten (10) Business Days
following written request by the Purchaser or any Depositor, provide to the
Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a) and (b) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Seller, provide to the
Purchaser and any Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the information specified in
paragraph (d) of this Section.
(a) If so requested in writing by the Purchaser or any Depositor,
the Seller shall provide such information regarding (i) the Seller, as
originator of the Mortgage Loans (including as an acquirer of Mortgage Loans
from a Qualified Correspondent), or (ii) each Third-Party Originator, as is
reasonably requested for the purpose of compliance with Items 1103(a)(1), 1105,
1110, 1117 and 1119 of Regulation AB. Such information shall include, at a
minimum so long as required by Regulation AB:
(A) the originator's form of organization;
(B) a description of the originator's origination program and
how long the originator has been engaged in originating residential
mortgage loans, which description shall include a discussion of the
originator's experience in originating mortgage loans of a similar
type as the Mortgage Loans; information regarding the size and
composition of the originator's origination portfolio; and
information that may be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of the performance of the
Mortgage Loans, including the originators' credit-granting or
underwriting criteria for mortgage loans of similar type(s) as the
Mortgage Loans and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB;
(C) a description of any legal or governmental proceedings
pending (or known to be contemplated) against the Seller and each
Third-Party Originator that would be material to securityholders;
and
(D) a description of any affiliation or relationship between
the Seller, each Third-Party Originator and any of the following
parties to a Securitization Transaction, as such parties are
identified to the Seller by the Purchaser or any Depositor in
writing in advance of such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested in writing by the Purchaser or any Depositor,
the Seller shall provide (or, as applicable, cause each Third-Party Originator
to provide) Static Pool Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably identified by the Purchaser as
provided below) originated by (i) the Seller, if the Seller is an originator of
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator. Such Static Pool
Information shall be prepared by the Seller (or Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that there is reasonably
available to the Seller (or Third-Party Originator) Static Pool Information with
respect to more than one mortgage loan type, the Purchaser or any Depositor
shall be entitled to specify whether some or all of such information shall be
provided pursuant to this paragraph. The content of such Static Pool Information
may be in the form customarily provided by the Seller, and need not be
customized for the Purchaser or any Depositor. Such Static Pool Information for
each vintage origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the life of the
mortgage loans included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no later than 135
days prior to the date of the prospectus or other offering document in which the
Static Pool Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format that provides
a permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by the
Purchaser or the Depositor, as applicable.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Seller shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same format
in which Static Pool Information was previously provided to such party by the
Seller, subject to mutually agreed time limits.
If so requested in writing by the Purchaser or any Depositor, the
Seller shall provide (or, as applicable, cause each Third-Party Originator to
provide), at the expense of the requesting party (to the extent of any
additional incremental expense associated with delivery pursuant to this
Agreement), such agreed-upon procedures letters of certified public accountants
reasonably acceptable to the Purchaser or Depositor, as applicable, pertaining
to Static Pool Information relating to prior securitized pools for
securitizations closed on or after January 1, 2006 or, in the case of Static
Pool Information with respect to the Seller's or Third-Party Originator's
originations or purchases, to calendar months commencing January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor shall designate, which may include, by way of example, any Sponsor,
any Depositor and any broker dealer acting as underwriter, placement agent or
initial purchaser with respect to a Securitization Transaction. Any such
statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) [Reserved].
(d) If so requested in writing by the Purchaser or any Depositor for
the purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Third-Party Originator to) (i) notify the Purchaser and any Depositor
in writing of (A) any material litigation or governmental proceedings pending
against the Seller or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller or any Third-Party Originator and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, and (ii) provide to the Purchaser and any Depositor
a description of such proceedings, affiliations or relationships.
Section 16.04 Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, the Depositor and each of the following parties participating in a
Securitization Transaction: each sponsor and each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, 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 arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided in written or electronic form under this
Section 16 by or on behalf of the Seller, or provided under this Section
16 by or on behalf of any Third-Party Originator (collectively, the
"Seller Information"), or (B) the omission or alleged omission to state in
the Seller Information a material fact required to be stated in the Seller
Information or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Seller Information and not to any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or
other material when and as required under this Section 16; or
(iii) any breach by the Seller of a representation or warranty set
forth in Section 16.02(a) or in a writing furnished pursuant to Section
16.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Seller of a representation or
warranty in a writing furnished pursuant to Section 16.02(b) to the extent
made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(iii) of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Seller or
any Third-Party Originator.
(b) Any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or other
material when and as required under this Section 16, or any breach by the Seller
of a representation or warranty set forth in Section 16.02(a) or in a writing
furnished pursuant to Section 16.02(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that such
breach is not cured by such closing date, or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Section 16.02(b)
to the extent made as of a date subsequent to such closing date, shall
immediately and automatically, without notice or grace period, constitute an
Event of Default with respect to the Seller under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under the Servicing Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything in
this Agreement or any applicable Reconstitution Agreement to the contrary) of
any compensation to the Seller, as servicer; provided that to the extent that
any provision of this Agreement and/or any applicable Reconstitution Agreement
expressly provides for the survival of certain rights or obligations following
termination of the Seller as servicer, such provision shall be given effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
BARCLAYS BANK PLC
(Purchaser)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
INDYMAC BANK, F.S.B.
(Seller)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Article VI of the Mortgage Loan Purchase Agreement to which this
Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _, without recourse" and signed in the name of the
last endorsee (the "Last Endorsee") by an authorized officer. To the extent that
there is no room on the face of the Mortgage Notes for endorsements, the
endorsement may be contained on an allonge, if state law so allows and the
Custodian is so advised by the Seller that state law so allows. If the Mortgage
Loan was acquired by the Seller in a merger, the endorsement must be by "[Last
Endorsee], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the
original Mortgage with evidence of recording thereon. With respect to any Co-op
Loan, an original or copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such Mortgage has
been delivered for recordation or because such Mortgage has been lost or because
such public recording office retains the original recorded Mortgage, the Seller
shall deliver or cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such Mortgage has
been dispatched to the appropriate public recording office for recordation and
that the original recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Custodian upon receipt thereof by the
Seller; or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage is lost
after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy of the
original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording (except with respect to MERS Designated Loans). The
Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the Purchaser. If
the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage
shall be delivered in blank. If the Mortgage Loan was acquired by the Seller in
a merger, the Assignment of Mortgage must be made by "[Seller], successor by
merger to [name of predecessor]". If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
of Mortgage must be by "[Seller], formerly known as [previous name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) with evidence of recording thereon, or if
any such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office retains the
original recorded assignments of mortgage, the Seller shall deliver or cause to
be delivered to the Custodian, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate of the Seller (or certified by the title company,
escrow agent, or closing attorney) stating that such intervening assignment of
mortgage has been dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment of mortgage
or a copy of such intervening assignment of mortgage certified by the
appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of an
intervening assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening assignment
is lost after recordation in a public recording office, a copy of such
intervening assignment certified by such public recording office to be a true
and complete copy of the original recorded intervening assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy binder
or commitment for title certified to be true and complete by the title insurance
company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease
and the assignment of such Co-op Lease, with all intervening assignments showing
a complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the interests
of the mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related Mortgagor to
the originator of such Co-op Loan; and (iv) copies of the financing statement
filed by the originator as secured party and, if applicable, a filed UCC-3
assignment of the subject security interest showing a complete chain of title,
together with an executed UCC-3 assignment of such security interest by the
Seller in a form sufficient for filing; and
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power certified by
the Seller to be a true and correct copy of the original.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which shall
(i) identify the recorded document, (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian; provided, however, that any recorded document shall
in no event be delivered later than one year following the related Closing Date.
An extension of the date specified in clause (iv) above may be requested from
the Purchaser, which consent shall not be unreasonably withheld.
EXHIBIT B
FORM OF INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated _, 200_
("Agreement") among Securitized Asset Backed Receivables LLC, a Delaware limited
liability company (the "Depositor"), [___], a [___] (the "Underwriter"), and
IndyMac Bank, F.S.B., a [___] (the "Indemnifying Party").
W I T N E S S E T H:
WHEREAS, the Indemnifying Party and the Depositor are parties to the
Pooling and Servicing Agreement (as defined herein);
WHEREAS, the Indemnifying Party originated or acquired the Mortgage
Loans and subsequently sold the Mortgage Loans to Barclays Bank PLC (the
"Purchaser"), an affiliate of the Depositor, in anticipation of the
securitization transaction;
WHEREAS, the Indemnifying Party also stands to receive substantial
financial benefits in its capacity as servicer under the Pooling and Servicing
Agreement;
WHEREAS, as an inducement to the Depositor to enter into the Pooling
and Servicing Agreement and the Underwriter to enter into the Underwriting
Agreement (as defined herein), the Indemnifying Party wishes to provide for
indemnification and contribution on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
1933 Act: The Securities Act of 1933, as amended.
1934 Act: The Securities Exchange Act of 1934, as amended.
ABS Informational and Computational Material means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as may be amended from time to time.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Free Writing Prospectus: Any written communication that constitutes
a "free writing prospectus," as defined in Rule 405 under the 1933 Act.
Indemnified Parties: As defined in Section 3.1.
Indemnifying Party Information: (A) All information in the
Prospectus Supplement, the Offering Circular, any Free Writing Prospectus or any
amendment or supplement thereto (i) contained under the headings
"Summary--Relevant Parties--Responsible Party [and Servicer,"] "The Mortgage
Loan Pool--Underwriting Guidelines" [and "The Servicer"] and (ii) regarding the
Mortgage Loans, the related mortgagors and/or the related Mortgaged Properties
(but in the case of this clause (ii), only to the extent any untrue statement or
omission arose from or is based upon errors or omissions in the information
concerning the Mortgage Loans, the related mortgagors and/or the related
Mortgaged Properties, as applicable, provided to the Depositor or any affiliate
by or on behalf of the Indemnifying Party)[, and (B) any static pool information
regarding mortgage loans originated or acquired by the Seller [and included in
the Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus or any amendment or
supplement thereto] [incorporated by reference from the Seller's website located
at [___]].
Offering Circular: The offering circular, dated [___], 200_,
relating to the private offering of the Privately Offered Certificates,
including any structural term sheets, collateral terms sheets and computational
materials used in connection with such offering.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling and Servicing Agreement: The Pooling and Servicing
Agreement, dated as of _, 200_, among the Depositor, the Indemnifying Party, as
responsible party and servicer, and [___].
Privately Offered Certificates: BCAP LLC Trust [___], Mortgage
Pass-Through Certificates, Series [___], Class [___] issued pursuant to the
Pooling and Servicing Agreement.
Prospectus Supplement: The preliminary prospectus supplement, dated
_, 200_, together with the final prospectus supplement, dated _, 200_, relating
to the offering of the Publicly Offered Certificates.
Publicly Offered Certificates: BCAP LLC Trust [___], Mortgage
Pass-Through Certificates, Series [___], Class [___], Class [___], Class [___],
Class [___], Class [___], Class [___] and Class [___] issued pursuant to the
Pooling and Servicing Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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. 1506-1631 (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.
Underwriting Agreement: The Underwriting Agreement, dated _, 200_,
among the Depositor and the Underwriter, relating to the sale of the Publicly
Offered Certificates.
1.2 Other Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
(a) Each party hereto represents and warrants that it has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement;
(b) Each party hereto represents and warrants that this Agreement
has been duly authorized, executed and delivered by such party;
(c) Each party hereto represents and warrants that assuming the due
authorization, execution and delivery by each other party hereto, this Agreement
constitutes the legal, valid and binding obligation of such party and
(d) The Indemnifying Party hereto represents and warrants that the
Indemnifying Party Information satisfies the requirements of the applicable
provisions of Regulation AB.
ARTICLE III
INDEMNIFICATION
3.1 Indemnification by the Indemnifying Party of the Depositor and
the Underwriter. (a) The Indemnifying Party shall indemnify and hold harmless
the Depositor and the Underwriter and their respective affiliates, and their
respective present and former directors, officers, employees, agents and each
Person, if any, that controls the Depositor, the Underwriter or such affiliate,
within the meaning of either the 1933 Act or the 1934 Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages, penalties,
fines, forfeitures or liabilities, joint or several, to which each such
Indemnified Party may become subject, under the 1933 Act, the 1934 Act or
otherwise, to the extent that such losses, claims, damages, penalties, fines,
forfeitures or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials, any Free Writing Prospectus or any
amendment or supplement thereto, or arise out of or are based upon (i) any
breach of the representation and warranty set forth in Article II(d) above or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission relates to information set forth in the Indemnifying Party Information,
and the Indemnifying Party shall in each case reimburse each Indemnified Party
for any legal or other costs, fees, or expenses reasonably incurred and as
incurred by such Indemnified Party in connection with investigating or defending
any such loss, claim, damage, penalty, fine, forfeiture, liability or action.
The Indemnifying Party's liability under this Section 3.1 shall be in addition
to any other liability that the Indemnifying Party may otherwise have.
(b) If the indemnification provided for in this Section 3.1 shall
for any reason be unavailable to an Indemnified Party under this Section 3.1
(other than due to indemnification not being applicable under Section 3.1(a)),
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other hand, shall contribute to the aggregate losses,
liabilities, claims, damages, penalty, fine, forfeiture, costs, fees and
expenses of the nature contemplated herein and incurred by the parties hereto in
such proportions that are appropriate to reflect the relative fault of the
Depositor or the Underwriter, on the one hand, and the Indemnifying Party, on
the other hand, in connection with the applicable misstatements or omissions as
well as any other relevant equitable considerations. Notwithstanding the
foregoing, no Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
Person that was not guilty of such fraudulent misrepresentation. For purposes of
this Section 3.1, each director of a party to this Agreement and each Person, if
any, that controls a party to this Agreement within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such party.
3.2 Notification; Procedural Matters. Promptly after receipt by an
Indemnified Party under Section 3.1 of notice of any claim or the commencement
of any action, such Indemnified Party shall, if a claim in respect thereof is to
be made against the Indemnifying Party (or if a claim for contribution is to be
made against another party) under Section 3.1, notify the Indemnifying Party (or
other contributing party) in writing of the claim or the commencement of such
action; provided, however, that the failure to notify the Indemnifying Party (or
other contributing party) shall not relieve it from any liability which it may
have under Section 3.1 except to the extent it has been materially prejudiced by
such failure; and provided, further, however, that the failure to notify the
Indemnifying Party shall not relieve it from any liability which it may have to
any Indemnified Party (or to the party requesting contribution) otherwise than
under Section 3.1. In case any such action is brought against any Indemnified
Party and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, the Indemnifying
Party elects to assume the defense thereof, it may participate with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, or if the use of counsel chosen by the Indemnifying
Party to represent the Indemnified Parties would present such counsel with a
conflict of interest, the Indemnified Party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
parties. Upon receipt of notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense of such action and approval by
the Indemnified Party of such counsel, the Indemnifying Party shall not be
liable to such Indemnified Party under this paragraph for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, unless (i) the Indemnified Party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party shall have authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party. No party shall be
liable for contribution with respect to any action or claim settled without its
consent, which consent shall not be unreasonably withheld. In no event shall the
Indemnifying Party be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for all
Indemnified Parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
ARTICLE IV
GENERAL
4.1 Survival. This Agreement and the obligations of the parties
hereunder shall survive the purchase and sale of the Publicly Offered
Certificates and Privately Offered Certificates.
4.2 Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, each Indemnified Party and their respective
successors and assigns, and no other Person shall have any right or obligation
hereunder.
4.3 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to principles of conflict of laws.
4.4 Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, which taken together shall constitute one and
the same instrument.
4.5 Notices. All communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered to:
In the case of the Depositor:
Securitized Asset Backed Receivables LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
c/o Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [____________]
Telephone: (212) [______]
In the case of the Underwriter:
[____________________]
[____________________]
[____________________]
Attention:
Telephone:
In the case of the Indemnifying Party:
IndyMac Bank, F.S.B.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as of the date first above written.
SECURITIZED ASSET BACKED RECEIVABLES
LLC
By:
--------------------------------------
Name:
Title:
[UNDERWRITER]
By:
--------------------------------------
Name:
Title:
INDYMAC BANK, F.S.B.
By:
--------------------------------------
Name:
Title:
EXHIBIT C
SELLER'S OFFICER'S CERTIFICATE
I, ____________, hereby certify that I am the duly elected [Vice]
President of IndyMac Bank, F.S.B., a federally chartered institution organized
under the laws of the [state of ____________] [United States] (the "Company")
and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification since ____________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ______________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver (a) the Mortgage Loan
Purchase Agreement, dated as of October 1, 2006 (the "Purchase
Agreement"), by and between Barclays Bank PLC (the "Purchaser") and the
Company (b) the Servicing Agreement, by and between the Purchaser and the
Company, as servicer (the "Servicing Agreement") and (c) the Custodial
Agreement, dated as of _______ , 200_ (the "Custodial Agreement"), by and
among the Purchaser, the Company and [CUSTODIAN] (the "Custodian"), [and
to endorse the Mortgage Notes and execute the Assignments of Mortgages by
original [or facsimile] signature], and such resolutions are in effect on
the date hereof and have been in effect without amendment, waiver,
rescission or modification since ____________. The Purchase Agreement, the
Servicing Agreement and the Custodial Agreement may be referred to herein
as the "Agreements."
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Agreements, [the sale of the mortgage loans] or the consummation
of the transactions contemplated by the agreements; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Agreements conflicts or will conflict
with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company or, to
the best of my knowledge, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to
which it is subject, or any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the
Agreements, or the mortgage loans or of any action taken or to be taken in
connection with the transactions contemplated hereby, or which would be
likely to impair materially the ability of the Company to perform under
the terms of the Agreements.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Agreements, and
(b) any other document delivered or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the
respective times of such signing and delivery, and is now, a duly elected
or appointed, qualified and acting officer or representative of the
Company, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Date: ___________________________________ By:_________________________________
Name:
[Seal] Title: [Vice] President
I, ____________________, an [Assistant] Secretary of IndyMac Bank,
F.S.B., hereby certify that ________________ is the duly elected, qualified and
acting [Vice] President of the Company and that the signature appearing above is
[her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date: ___________________________________ By:_________________________________
Name:
[Seal] Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
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EXHIBIT D
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
_________________________, 200__
[Federal Home Loan Bank of
________(the "Association")]
____________________________
____________________________
____________________________
Attention: _______________________________
_______________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that IndyMac Bank, F.S.B. a [type of
entity], organized pursuant to the laws of [the State of incorporation] (the
"Company") has committed to sell certain mortgage loans to Barclays Bank PLC
under a Mortgage Loan Purchase Agreement, dated as of October 1, 2006. The
Company warrants that the mortgage loans to be sold to Barclays Bank PLC are in
addition to and beyond any collateral required to secure advances made by the
Association to the Company.
The Company acknowledges that the mortgage loans to be sold to
Barclays Bank PLC shall not be used as additional or substitute collateral for
advances made by the Association. Barclays Bank PLC understands that the balance
of the Company's mortgage loan portfolio may be used as collateral or additional
collateral for advances made by the Association, and confirms that it has no
interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Barclays Bank PLC.
[Signature Page Follows]
Very truly yours,
_______________________________
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
Acknowledged and approved:
[FEDERAL HOME LOAN BANK OF]
_______________________________
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Barclays Bank PLC from the company named on the next page (the
"Company") pursuant to that certain Mortgage Loan Purchase Agreement, dated as
of October 1, 2006, and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Company or its designees, as of the date and time
of the sale of such Mortgage Loans to Barclays Bank PLC. Such release shall be
effective automatically without any further action by any party upon payment in
one or more installments, in immediately available funds, of $_, in accordance
with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
IndyMac Bank, F.S.B.
-------------------------------------
(Name)
-------------------------------------
(Address)
-------------------------------------
-------------------------------------
-------------------------------------
By: -------------------------------------
II. Certification of Release
The Company named below hereby certifies to Barclays Bank PLC that,
as of the date and time of the sale of the above-mentioned Mortgage Loans to
Barclays Bank PLC the security interests in the Mortgage Loans released by the
above-named financial institution comprise all security interests relating to or
affecting any and all such Mortgage Loans. The Company warrants that, as of such
time, there are and will be no other security interests affecting any or all of
such Mortgage Loans.
INDYMAC BANK, F.S.B.
By:_____________________________
Title:__________________________
Date:___________________________
EXHIBIT G
UNDERWRITING GUIDELINES
EXHIBIT H
FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On this ____ day of ______________, 200_, IndyMac Bank, F.S.B.
("Seller"), as the Seller under (i) that certain Purchase Price and Terms
Agreement, dated as of ____________, 200_ (the "PPTA"), and (ii) that certain
Mortgage Loan Purchase Agreement, dated as of October 1, 2006 (the "Purchase
Agreement"), does hereby sell, transfer, assign, set over and convey to Barclays
Bank PLC ("Purchaser") as the Purchaser under the Agreements (as defined below)
without recourse, but subject to the terms of the Agreements, all right, title
and interest of, in and to the Mortgage Loans listed on the Mortgage Loan
Schedule attached hereto as Exhibit A (the "Mortgage Loans"), together with the
Mortgage Files and all rights and obligations arising under the documents
contained therein. Each Mortgage Loan subject to the Agreements was underwritten
in accordance with, and conforms to, the Underwriting Guidelines attached hereto
as Exhibit C. Pursuant to Article VI of the Purchase Agreement, the Seller has
delivered to the Custodian the documents for each Mortgage Loan to be purchased
as set forth in the Purchase Agreement. The contents of each Servicing File
required to be retained by [_____________] ("Seller" or "Servicer") under that
certain Servicing Agreement, dated as of [________], 200_ (the "Servicing
Agreement") to service the Mortgage Loans pursuant to the Servicing Agreement
and thus not delivered to the Purchaser are and shall be held in trust by the
Servicer for the benefit of the Purchaser as the owner thereof. The Servicer's
possession of any portion of the Servicing File is at the will of the Purchaser
for the sole purpose of facilitating servicing of the related Mortgage Loan
pursuant to the Servicing Agreement, and such retention and possession by the
Servicer shall be in a custodial capacity only. The ownership of each Mortgage
Note, Mortgage and the contents of the Mortgage File and Servicing File is
vested in the Purchaser and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall immediately vest in the Purchaser and shall be
retained and maintained, in trust, by the Seller at the will of the Purchaser in
a custodial capacity only. The PPTA, the Purchase Agreement and the Servicing
Agreement shall collectively be referred to as the "Agreements" herein.
The Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are set forth on Exhibit B attached hereto.
In accordance with Article VI of the Purchase Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
INDYMAC BANK, F.S.B.
By: _____________________________________
Name:_________________________________
Title:________________________________
Accepted and Agreed:
BARCLAYS BANK PLC
By:__________________________________
Name:
Title:
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
EXHIBIT B
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
[Pool Characteristics of the Mortgage Loan Package as delivered on the
related Closing Date:]
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
EXHIBIT I
FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated [_________________
__, 20] ("Agreement"), among Barclays Bank PLC ("Assignor"),
[______________________] ("Assignee") and IndyMac Bank, F.S.B. (the "Company"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest of the Assignor, as
purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Mortgage Loan
Purchase Agreement (the "Purchase Agreement"), dated as of October 1, 2006,
between the Assignor, as purchaser (the "Purchaser"), and the Company, as
seller, solely insofar as the Purchase Agreement relates to the Mortgage Loans.
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 9.04 of the Purchase Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to [______________]
(the "Trust") created pursuant to a Pooling and Servicing Agreement, dated as of
[________], 200_ (the "Pooling Agreement"), among the Assignee, the Assignor,
[_______________], as trustee (including its successors in interest and any
successor trustees under the Pooling Agreement, the "Trustee"),
[_____________________], as servicer (including its successors in interest and
any successor servicer under the Pooling Agreement, the "Servicer"). The Company
hereby acknowledges and agrees that from and after the date hereof (i) the Trust
will be the owner of the Mortgage Loans, (ii) the Company shall look solely to
the Trust for performance of any obligations of the Assignor insofar as they
relate to the Mortgage Loans, (iii) the Trust (including the Trustee and the
Servicer acting on the Trust's behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage Loans, under
the Purchase Agreement, including, without limitation, the enforcement of the
document delivery requirements set forth in Section 6 of the Purchase Agreement,
and shall be entitled to enforce all of the obligations of the Company
thereunder insofar as they relate to the Mortgage Loans, and (iv) all references
to the Purchaser, the Custodian or the Bailee under the Purchase Agreement
insofar as they relate to the Mortgage Loans, shall be deemed to refer to the
Trust (including the Trustee and the Servicer acting on the Trust's behalf).
Neither the Company nor the Assignor shall amend or agree to amend, modify,
waiver, or otherwise alter any of the terms or provisions of the Purchase
Agreement which amendment, modification, waiver or other alteration would in any
way affect the Mortgage Loans or the Company's performance under the Purchase
Agreement with respect to the Mortgage Loans without the prior written consent
of the Trustee.
Representations and Warranties of the Company
3. The Company warrants and represents to the Assignor, the Assignee
and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement and has full power and
authority to perform its obligations under the Purchase Agreement. The
execution by the Company of this Agreement is in the ordinary course of
the Company's business and will not conflict with, or result in a breach
of, any of the terms, conditions or provisions of the Company's charter or
bylaws or any legal restriction, or any material agreement or instrument
to which the Company is now a party or by which it is bound, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which the Company or its property is subject. The execution, delivery and
performance by the Company of this Agreement have been duly authorized by
all necessary corporate action on part of the Company. This Agreement has
been duly executed and delivered by the Company, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee,
will constitute the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity
regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Company in connection with the execution, delivery
or performance by the Company of this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Company, before any court, administrative agency or
other tribunal, which would draw into question the validity of this
Agreement or the Purchase Agreement, or which, either in any one instance
or in the aggregate, would result in any material adverse change in the
ability of the Company to perform its obligations under this Agreement or
the Purchase Agreement, and the Company is solvent.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that the representations and warranties set forth in Section 9.02
of the Purchase Agreement are true and correct as of the date hereof as if such
representations and warranties were made on the date hereof unless otherwise
specifically stated in such representations and warranties.
Remedies for Breach of Representations and Warranties
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee and
the Servicer acting on the Trust's behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as set forth in Section 9.03 of the Purchase Agreement as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
Miscellaneous
6. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
8. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee and
the Servicer acting on the Trust's behalf). Any entity into which Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each of this Agreement and the Purchase Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the Purchase
Agreement (to the extent assigned hereunder) by Assignor to Assignee and by
Assignee to the Trust and nothing contained herein shall supersede or amend the
terms of the Purchase Agreement.
10. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts with
any provision of the Purchase Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
[____________________]
By:______________________________________
Name:_________________________________
Its:__________________________________
BARCLAYS BANK PLC
By:______________________________________
Name:_________________________________
Its:__________________________________
By:______________________________________
Name:_________________________________
Its:__________________________________
INDYMAC BANK, F.S.B.
By:______________________________________
Name:_________________________________
Its:__________________________________
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
EXHIBIT 10.2
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
BARCLAYS BANK PLC,
as Purchaser
----------------------------------------
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of August 30, 2006
----------------------------------------
Conventional Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I. DEFINITIONS
ARTICLE II. PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Due Diligence by the Purchaser............................................
Section 2.02 Identification of Mortgage Loan Package...................................
Section 2.03 Post-Closing Due Diligence................................................
Section 2.04 Credit Document Deficiencies Identified During Due Diligence..............
Section 2.05 Delivery of Collateral Files..............................................
Section 2.06 Purchase Confirmation.....................................................
Section 2.07 Closing...................................................................
Section 2.08 Payment of the Purchase Proceeds..........................................
Section 2.09 Entitlement to Payments on the Mortgage Loans.............................
Section 2.10 Payment of Costs and Expenses.............................................
Section 2.11 MERS Mortgage Loans and the MERS System...................................
Section 2.12 Required Closing Documents................................................
ARTICLE III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.....................
Section 3.02 Representations and Warranties Regarding Individual Mortgage Loans........
Section 3.03 Remedies for Breach of Representations and Warranties.....................
Section 3.04 Repurchase of Convertible Mortgage Loans..................................
Section 3.05 Representations and Warranties Respecting the Purchaser...................
Section 3.06 Indemnification by the Purchaser..........................................
ARTICLE IV. MISCELLANEOUS
Section 4.01 Notices...................................................................
Section 4.02 Sale Treatment............................................................
Section 4.03 Exhibits..................................................................
Section 4.04 General Interpretive Principles...........................................
Section 4.05 Reproduction of Documents.................................................
Section 4.06 Further Agreements........................................................
Section 4.07 Assignment of Mortgage Loans by the Purchaser.............................
Section 4.08 Conflicts between Transaction Documents...................................
Section 4.09 Governing Law.............................................................
Section 4.10 Severability Clause.......................................................
Section 4.11 Successors and Assigns....................................................
Section 4.12 Confidentiality...........................................................
Section 4.13 Entire Agreement..........................................................
Section 4.14 Counterparts..............................................................
Section 4.15 Waivers...................................................................
Section 4.16 No Solicitation...........................................................
Section 4.17 Consent to Service of Process.............................................
Exhibit A Schedule of Collateral Documents..........................................
Exhibit B Form of Purchase Confirmation.............................................
Exhibit C Form of Custodial Agreement...............................................
Exhibit D Form of Trade Confirmation................................................
Exhibit E Form of Countrywide's Officer's Certification.............................
Exhibit F Form of Security Release Certification....................................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of August 30, 2006 (the "Agreement"), between Countrywide Home Loans,
Inc., having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Countrywide"), and Barclays Bank PLC, having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ the ("Purchaser").
R E C I T A L S
The Purchaser has agreed to purchase from Countrywide and
Countrywide has agreed to sell from time to time to the Purchaser all of
Countrywide's right, title and interest, excluding servicing rights, in and to
those certain mortgage loans identified in a Purchase Confirmation (as defined
below) executed by Countrywide and the Purchaser. This Agreement is intended to
set forth the terms and conditions by which Countrywide shall transfer and the
Purchaser shall acquire such mortgage loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of a similar type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Agency Transfer: A ▇▇▇▇▇▇ Mae Transfer or a ▇▇▇▇▇▇▇ Mac Transfer.
Agreement: This Master Mortgage Loan Purchase Agreement, including
all exhibits and supplements hereto, and all amendments hereof.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less.
Assignment of Mortgage: 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
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California, the State of New York, or the State of Texas are authorized or
obligated by law or executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Documents: The documents required to be delivered on each
Closing Date pursuant to Section 2.12.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Conventional Mortgage Loan: A Mortgage Loan that is not insured by
the FHA or guaranteed by the VA.
Convertible Mortgage Loan: Any Adjustable Rate Mortgage Loan that
contains a provision whereby the Mortgagor is permitted to convert the Mortgage
Loan to a fixed-rate mortgage loan in accordance with the terms of the related
Mortgage Note.
Countrywide: Countrywide Home Loans, Inc., or any successor or
assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.04 of the Servicing Agreement, each of which shall be an
Eligible Account.
Custodial Agreement: The agreement governing the retention of the
Collateral Files by the Custodian.
Custodian: ▇▇▇▇▇ Fargo Bank, N.A., its successor in interest or
assign, or such other custodian that may be designated by Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to an Agency.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association or any
successor organization.
▇▇▇▇▇▇ Mae Transfer: Any sale or transfer of some or all of the
Mortgage Loans to ▇▇▇▇▇▇ ▇▇▇.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
▇▇▇▇▇▇▇ Mac Transfer: Any sale or transfer of some or all of the
Mortgage Loans to ▇▇▇▇▇▇▇ Mac under its Cash Purchase Program or MBS Program
(Special Servicing Option).
Funding Deadline: With respect to each Closing Date, one o'clock
(1:00) p.m. New York time.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) that is a Section 32 Mortgage
Loan under the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), (b)
(classified as a "high cost" or similarly defined loan under any other
applicable state, federal or local law or (c) categorized as High Cost pursuant
to Appendix E of Standard & Poor's Glossary, as applicable at the time of
origination of the Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Interim Funder: With respect to each MERS Mortgage Loan, the Person
named on the MERS System as the interim funder pursuant to the MERS Procedures
Manual.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Investor: With respect to each MERS Mortgage Loan, the Person named
on the MERS System as the investor pursuant to the MERS Procedures Manual.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Countrywide in connection
with the liquidation of a defaulted Mortgage Loan through trustee's sale,
foreclosure sale or otherwise, other than amounts received following the
acquisition of an REO Property pursuant to Section 3.13 of the Servicing
Agreement.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, upon a
leasehold estate of the Mortgagor, as the case may be.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Government Insurance Proceeds (if applicable), Other Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans included therein and made a part of the related
Purchase Confirmation, which schedule shall include, the following information
with respect to each Mortgage Loan: (i) Countrywide's loan number identifying
such Mortgage Loan; (ii) the Mortgage Interest Rate, less any LPMI Fee, as of
the Cut-off Date; (iii) with respect to any Adjustable Rate Mortgage Loan, the
Gross Margin, the Periodic Rate Cap, the Lifetime Rate Cap, the next Interest
Adjustment Date and whether such Adjustable Rate Mortgage Loan is a Convertible
Mortgage Loan, (iv) with respect to a LPMI Loan, the LPMI Fee, (v) with respect
to each First Lien Mortgage Loan, the LTV at origination and, with respect to
each Second Lien Mortgage Loan, the Combined LTV at origination; (vi) the
remaining term as of the Cut-off Date and the original term of such Mortgage
Loan, (vii) whether such Mortgage Loan is a First Lien Mortgage Loan or a Second
Lien Mortgage Loan (viii) any other information pertaining to such Mortgage Loan
as may be reasonably requested by the Purchaser, (ix) with respect to each
Option ARM Mortgage Loan, (a) the maximum negative amortization percentage, and
(b) the recast period, (x) name, address, city and zipcode of Mortgagor, (xi)
the Stated Principal Balance, (xii) appraisal amount, (xiii) purchase amount,
(xiv) loan amount, (xv) first Monthly Payment Due Date, (xvi) credit score,
(xvii) document type, (xviii) occupancy type, (xix) payment current through
date, (xx) Prepayment Penalty window - flag/term, and (xxi) interest-only term.
The information set forth in the Mortgage Loan Schedule relating to the Mortgage
Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with respect to any LPMI
Loan, as applicable, is exclusive of the LPMI Fee.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by (a) an assistant Vice
President or higher ranking officer and (b) by the Treasurer or the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of Countrywide, and
delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor three different payment options each month, which
include: (i) a minimum monthly payment option, (ii) an interest-only payment
option or (iii) a full principal and interest option which amortizes over 30
years or less.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgaged-backed securities transaction.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02 of this Agreement, are intended to be
sold under this Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
Prepayment Penalty:__With respect to each Mortgage Loan, a
prepayment penalty, charge, premium or fee, if any, payable upon the Principal
Prepayment in full or part of such Mortgage Loan, as set forth in the related
Mortgage Note or Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment Period: As to any Remittance Date, the second
day of the calendar month preceding the month of such Remittance Date, through
the first day of the calendar month of such Remittance Date.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Countrywide and the Purchaser in connection
with the purchase and sale of each Mortgage Loan Package, which sets forth the
terms relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Countrywide in exchange for the Mortgage Loan Package purchased
on such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 4.07 hereof.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 3.02
hereof; (v) shall be the same type of Mortgage Loan (i.e., a Convertible
Mortgage Loan or a Fixed Rate Mortgage Loan).
Relief Act: The Servicemembers' Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of Subchapter M of Chapter
1, Subtitle A, of the Code, and related provisions, and proposed, temporary and
final Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO Property
or the transfer of the management of such REO Property to the Purchaser as set
forth in Section 3.13 of the Servicing Agreement.
REO Property: A Mortgaged Property acquired by Countrywide on behalf
of the Purchaser as described in Section 3.13 of the Servicing Agreement.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan plus (ii) interest on
such Stated Principal Balance at the Mortgage Loan Remittance Rate from the last
date through which interest has been paid and distributed to the Purchaser to
the date of repurchase, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
on the related Mortgaged Property.
Servicing Agreement: The agreement dated as of August 30, 2006 and
signed by the Purchaser and Servicing LP with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Countrywide, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed, and shall be prorated (based upon the number of days of the related
month Countrywide so acted as servicer relative to the total number of days in
that month) for each part thereof. The obligation of the Purchaser to pay the
Servicing Fee is limited to, and the Servicing Fee is payable solely from, the
interest portion of such Monthly Payment collected by Countrywide, or as
otherwise provided herein. Subject to the foregoing, and with respect to each
Mortgage Loan, Countrywide shall be entitled to receive its Servicing Fee
through the disposition of any related REO Property and the Servicing Fee
payable with respect to any REO Property shall be based on the Stated Principal
Balance of the related Mortgage Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R) Glossary
applicable at the time of origination of the Mortgage Loan.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Countrywide and the Purchaser prior to the
applicable Closing Date confirming the terms of a prospective purchase and sale
of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, this Agreement
and the Servicing Agreement.
Underwriting Guidelines: The applicable underwriting guidelines of
the Seller, a copy of which is attached as an exhibit to the related Trade
Confirmation.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
VA: The Department of Veterans Affairs.
Whole Loan Transfer: The sale or transfer by the Purchaser of some
or all of the Mortgage Loans in a whole loan format.
ARTICLE II.
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Due Diligence by the Purchaser.
(a) Review of Credit File. At least five (5) Business Days prior to
the Closing Date, Countrywide shall make available to the Purchaser the Credit
File for each Preliminary Mortgage Loan in the related Preliminary Mortgage Loan
Package. The Purchaser shall have the right to review the Credit File for each
such Preliminary Mortgage Loan, at Countrywide's offices or such other location
agreed upon by the Purchaser and Countrywide, for the purpose of determining
whether each Preliminary Mortgage Loan conforms in all material respects to the
applicable terms contained in the Transaction Documents, which determination
shall be made in the Purchaser's reasonable and good faith discretion. In the
event that the Purchaser rejects any Preliminary Mortgage Loan based on such
review, reasonable discretion that any Mortgage Loan is not in compliance in all
material respects with the applicable terms of the Transaction Documents, such
Mortgage Loan shall be deleted from the related Mortgage Loan Schedule and
Countrywide shall have the right to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. The Purchaser shall use its reasonable best efforts
to conduct its due diligence, and to convey the results thereof to Countrywide,
within the time and in the manner necessary to permit Countrywide to rebut or
cure any Preliminary Mortgage Loan or to substitute replacement Preliminary
Mortgage Loans as permitted herein.
(b) Rejection of Preliminary Mortgage Loans. Without limiting the
generality of the foregoing, in the event that the Purchaser rejects Preliminary
Mortgage Loans (i) comprising more than ten percent (10%) of the related
Preliminary Mortgage Loan Package (as measured by unpaid principal balance), or
(ii) for reasons other than as permitted under this Agreement or the Trade
Confirmation, Countrywide may, in its sole discretion, rescind its offer to sell
any of the Preliminary Mortgage Loans relating thereto to the Purchaser and
Countrywide shall have no liability therefor.
Section 2.02 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.03 Post-Closing Due Diligence.
In the event that the Purchaser fails to complete its due diligence,
as contemplated in Section 2.01 of this Agreement, with respect to any
Preliminary Mortgage Loan, the Purchaser and Countrywide may nonetheless
mutually agree to the purchase and sale of such Mortgage Loan as contemplated
hereunder, and upon such mutual agreement, if the Purchaser provides notice to
Countrywide of such Mortgage Loan and such Mortgage Loan is identified as such
in the Purchase Confirmation (as used therein, the "Pending Mortgage Loans"),
the Purchaser shall have the right to review the related Credit File for such
Mortgage Loan within ten (10) Business Days after the Closing Date and, based on
such review and within such ten (10) Business Days period, request that
Countrywide repurchase any Pending Mortgage Loan that the Purchaser reasonably
and in good faith contends does not conform in all material respects to the
applicable terms of the Transaction Documents. Countrywide shall have ten (10)
Business Days from the date of its receipt of such request to either (a)
repurchase such Mortgage Loan at the purchase price for such Mortgage Loan (as
calculated under the related Transaction Documents, as applicable) plus accrued
and unpaid interest, or (b) provide evidence reasonably satisfactory to the
Purchaser that such Mortgage Loan does in fact conform to the terms of the
Transaction Documents, as applicable. In the event that Countrywide must
repurchase any Mortgage Loan in accordance with this Section 2.03 or pursuant to
any other applicable term contained in the Transaction Documents, Countrywide
may, at its option, substitute replacement Mortgage Loans conforming in all
material respects to the applicable terms contained in the related Transaction
Documents. The rights and remedies set forth in this Section 2.03 are in
addition to those set forth in Section 3.03 hereof.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File is
missing material documentation (as used therein, the "Missing Credit
Documents"), Countrywide agrees to use its best efforts to procure each such
Missing Credit Document within sixty (60) days following the related Closing
Date. In the event of a default by a Mortgagor or any material impairment of the
Mortgaged Property, in either case directly arising from a breach of
Countrywide's obligation to deliver the Missing Credit Document within the time
specified above, Countrywide shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
(a) Custodial Agreement. Countrywide shall, on or before the
Business Day prior to the related Closing Date, deliver to the Custodian the
Collateral File for each Mortgage Loan in the Mortgage Loan Package. The parties
hereto shall execute the Custodial Agreement on or prior to the initial Closing
Date as required under Section 2.12. Countrywide shall comply with its
obligations under the Custodial Agreement and the Purchaser shall pay all fees
and expenses of the Custodian.
(b) Missing Collateral Documents. In the event that any of the
original Collateral Documents set forth in clauses (3) through (9) of Exhibit A
hereto are not delivered to the Custodian on or before the Closing Date (each, a
"Missing Collateral Document"), then Countrywide shall have (i) with respect to
any Missing Collateral Document sent for recording, twelve (12) months from the
related Closing Date, or (ii) with respect to all other Missing Collateral
Documents, one-hundred twenty (120) days from the Closing Date, to deliver to
the Purchaser such Missing Collateral Documents; provided, however, that with
respect to any Government Mortgage Loan, Countrywide agrees to procure each such
Missing Collateral Document within sixty (60) days following the FHA's or the
VA's, as applicable, deadline for procuring such documents. Notwithstanding the
foregoing, Countrywide shall not be deemed to be in breach of this Agreement if
its failure to deliver to the Purchaser any Missing Collateral Document within
the time specified above is due solely to (i) the failure of the applicable
recorder's office to return a Missing Collateral Document that was sent for
recording or (ii) the failure of the title insurer to issue and deliver the
original mortgagee title policy, except where such refusal to issue the policy
is based on a claim that the title insurer is under no obligation to issue such
policy.
(c) Other Documents. Countrywide shall forward to the Purchaser in a
timely manner any original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance with
this Agreement upon execution and, if applicable, recordation thereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Countrywide shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Countrywide.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Countrywide under
this Agreement shall be true and correct in all material respects as of the
Closing Date and no event shall have occurred that, with notice or the passage
of time, would constitute a default under this Agreement;
(b) All of the representations and warranties of the Purchaser under
this Agreement shall be true and correct in all material respects as of the
Closing Date and no event shall have occurred that, with notice or the passage
of time, would constitute a default under this Agreement;
(c) Both parties shall have executed the related Trade Confirmation
and Purchase Confirmation;
(d) at least two Business Days prior to the related Closing Date,
Countrywide shall deliver to the Purchaser a a listing on a loan level basis of
the necessary information to compute the Purchase Proceeds of the Mortgage Loans
delivered on such Closing Date (including accrued interest) in a format as
mutually agreed upon by Countrywide and the Purchaser, and prepare a Mortgage
Loan Schedule;
(e) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all closing documents as specified in Section
2.12 of this Agreement, in such forms as are agreed upon by the parties, duly
executed by all signatories as required pursuant to the terms hereof; and
(f) Countrywide shall have delivered to the Custodian all Collateral
Documents required pursuant to Section 2.05 of this Agreement.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07 hereof, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Countrywide on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Countrywide on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date).
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Countrywide shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. To the extent permitted by
applicable law, each of the Assignments of Mortgage is subject to recordation in
all appropriate public offices for real property records in all the counties or
their comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
only the first of such recordation to be effected shall be at Countrywide's
expense in the event recordation is either necessary under applicable law or
requested by the Purchaser at its sole option and all subsequent recordations
shall be at the expense of the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Countrywide pursuant to this Agreement, Countrywide shall cause the registration
of such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Countrywide shall be in lieu of Countrywide delivering to the
Purchaser an Assignment of Mortgage for such MERS Mortgage Loan. With respect to
the Mortgage and intervening assignments related to any MERS Mortgage Loan,
Countrywide shall, in accordance with Section 2.05 of this Agreement, provide
the Purchaser with the original Mortgage with evidence of registration with MERS
and, as applicable, the originals of all intervening assignments of the Mortgage
with evidence of recording thereon prior to the registration of the Mortgage
Loan with the MERS System.
With respect to each MERS Mortgage Loan, Countrywide shall designate
the Purchaser as the Investor and the Custodian as custodian, and no Person
shall be listed as Interim Funder on the MERS System.
In connection with the MERS System, Countrywide is hereby authorized
and empowered, in its own name, to register, or change the registration of any
MERS Mortgage Loan to effectuate such registration. Further, Countrywide is
authorized to cause the removal of any MERS Mortgage Loan from such
registration, and to execute and deliver on behalf of itself and the Purchaser,
any and all instruments of assignment and comparable instruments with respect to
any registration and/or removal of such MERS Mortgage Loan on or from the MERS
System.
Section 2.12 Required Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(a) this Agreement (to be executed and delivered only for the
initial Closing Date);
(b) with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
(c) the related Mortgage Loan Schedule attached to the related
Purchase Confirmation as the Mortgage Loan Schedule thereto;
(d) with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit E hereto with respect to Countrywide,
including all attachments thereto;
(e) a Security Release Certification, in the form of Exhibit F, as
applicable, hereto executed by any person, if any of the Mortgage Loans are
subject to a security interest, pledge or hypothecation for the benefit of such
person; and
Countrywide shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan. This Agreement has been duly
executed and delivered and constitutes the valid, legal, binding and enforceable
obligation of Countrywide, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by Countrywide
to make this Agreement valid and binding upon Countrywide in accordance with its
terms;
(c) No Conflict. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by Countrywide,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of Countrywide's certificate of
incorporation or by-laws or result in a material breach of any legal restriction
or any material agreement or instrument to which Countrywide is now a party or
by which it is bound, or constitute a material default or result in an
acceleration under any of the foregoing, or result in the violation of any
material law, rule, regulation, order, judgment or decree to which Countrywide
or its property is subject;
(d) Approved Seller. Countrywide is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of HUD
pursuant to Sections 203 and 211 of the National Housing Act. No event has
occurred, including a change in insurance coverage, which would make Countrywide
unable to comply with ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or HUD eligibility requirements;
(e) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the sale of the Mortgage Loans
to the Purchaser, the ability of Countrywide to service the Mortgage Loans
hereunder in accordance with the terms hereof, or Countrywide's ability to
perform its obligations under this Agreement, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of Countrywide contemplated
herein;
(f) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Countrywide, of or compliance by Countrywide with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date.
(g) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Countrywide, , and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by Countrywide pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(h) Ability to Perform; Solvency. Countrywide does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. Countrywide is solvent and the sale
of the Mortgage Loans will not cause Countrywide to become insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud any of Countrywide's creditors;
(i) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form or other document furnished
pursuant to this Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading;
(j) No Brokers. Countrywide has not dealt with any third party
broker, investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans;
(k) Sale Treatment. Countrywide intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of Countrywide and
Countrywide has determined that the disposition of the Mortgage Loans pursuant
to this Agreement will be afforded sale treatment for tax and accounting
purposes; and
(l) Reasonable Purchase Price. The consideration received by
Countrywide upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Countrywide represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
prior to the related Cut-off Date for such Mortgage Loan under the terms of the
Mortgage Note have been made; Countrywide has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the Mortgaged Property subject to the Mortgage, directly or indirectly,
for the payment of any amount required by the Mortgage Loan; and there has been
no delinquency of more than thirty (30) days in any payment by the Mortgagor
thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. With
respect to each Mortgage Loan, there is no delinquent taxes and insurance
premiums and, to the best of Countrywide's knowledge, there is no delinquent
ground rents, water charges, sewer rents, assessments, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser or its designee, all in accordance with this
Agreement. The substance of any such waiver, alteration or modification has been
approved by the primary mortgage guaranty insurer, if any, and by the title
insurer, to the extent required by the related policy and its terms are
reflected on the related Mortgage Loan Schedule. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement approved
by the primary mortgage insurer, if any, and the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Collateral
File and the terms of which are reflected in the Mortgage Loan Schedule if
executed prior to the Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto and no Mortgagor
was a debtor in any state or Federal bankruptcy or insolvency proceedings at the
time the Mortgage Loan was originated;
(f) Hazard and Flood Insurance. All buildings or other improvements
upon the Mortgaged Property are insured by an insurer acceptable to an Agency
against loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, and such insurer
is licensed to do business in the state where the Mortgaged Property is located.
All such insurance policies contain a standard mortgagee clause naming
Countrywide, its successors and assigns as mortgagee, and all premiums thereon
have been paid. If, upon the origination of the Mortgage Loan, the Mortgaged
Property was, or was subsequently deemed to be, in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), a flood
insurance policy that meets the requirements of the current guidelines of the
Federal Insurance Administration (or any successor thereto) and conforms to the
requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. Any and all requirements of any
applicable federal, state or local law including, without limitation, usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and all anti-predatory and abusive laws
applicable to the Mortgage Loan including, without limitation, any applicable
law governing Prepayment Penalties, have been complied with;
(h) No Release of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated, or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission;
(i) Enforceability of Mortgage Documents. The Mortgage Note and the
related Mortgage are genuine and each is the legal, valid and binding obligation
of the maker thereof, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws. All parties to the Mortgage Note, and the Mortgage had legal
capacity to enter into the Mortgage Note and to execute and deliver the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly and
properly executed by such parties;
(j) Valid First or Second Lien. Each related Mortgage is a valid,
subsisting enforceable and perfected first lien (with respect to a First Lien
Mortgage Loan) or second lien (with respect to a Second Lien Mortgage Loan) on
the related Mortgaged Property, including all improvements on the Mortgaged
Property. The lien of the Mortgage is subject only to:
(i) the lien of current real property taxes and assessments
not yet due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
that are acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and that do not adversely affect
the Appraised Value (as evidenced by an appraisal referred to in such
definition) of the Mortgaged Property set forth in such appraisal;
(iii) with respect to a Second Lien Mortgage Loan only, the
lien of the first mortgage on the Mortgaged Property; and
(iv) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien (with respect to a First Lien
Mortgage Loan) or second lien (with respect to a Second Lien Mortgage Loan) and
first priority (with respect to a First Lien Mortgage Loan) or second priority
(with respect to a Second Lien Mortgage Loan) security interest on the property
described therein and Countrywide has full right to sell and assign the same to
the Purchaser (subject to (i)-(iv) above).
(k) Disbursements of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed, and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and recording the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) Sole Owner. Countrywide is the sole owner and holder of the
Mortgage Loan. The Mortgage Loan is not assigned or pledged, and Countrywide has
good and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest not specifically set forth in the
related Mortgage Loan Schedule and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to the terms of this Agreement;
(m) Title Insurance. Each Mortgage Loan that is a First Lien
Mortgage Loan and each Mortgage Loan that is a Second Lien Mortgage Loan with an
original principal balance greater than $100,000, in either case, is covered by
a lender's title insurance policy acceptable to an Agency, issued by a title
insurer acceptable to an Agency and qualified to do business in the jurisdiction
where the related Mortgaged Property is located, insuring (subject to the
exceptions contained in Section 3.02(j)(i), (i) and (iv) above) Countrywide, its
successors and assigns as to the first or second priority lien of the Mortgage,
as applicable. Additionally, such lender's title insurance policy affirmatively
insures ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. Countrywide is the sole insured of such
lender's title insurance policy, and such lender's title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the related
Mortgage, including Countrywide, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy;
(n) No Default. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and Countrywide has not waived any default, breach, violation or
event of acceleration, and with respect to any Second Lien Mortgage Loan,
Countrywide has not received a written notice of default of any senior mortgage
loan related to the Mortgaged Property which has not been cured;
(o) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(p) Origination and Collection Practices. The origination, servicing
and collection practices used by Countrywide with respect to each Mortgage Note
and Mortgage have been in all respects legal, proper, prudent and customary in
the mortgage origination and servicing business. With respect to escrow deposits
and Escrow Payments, if any, all such payments are in the possession of, or
under the control of, Countrywide and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or Escrow Payments or other charges or payments due
Countrywide have been capitalized under any Mortgage or the related Mortgage
Note. With respect to Adjustable Rate Mortgage Loans, all Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law and
the terms of the related Mortgage Note. Any interest required to be paid
pursuant to applicable state, federal and local law has been properly paid and
credited;
(q) No Condemnation or Damage. To the best of Countrywide's
knowledge, the Mortgaged Property is free of material damage and waste and there
is no proceeding pending for the total or partial condemnation thereof;
(r) Customary and Enforceable Provisions. The Mortgage contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby including (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. There is no homestead available to a
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(s) Collateral. The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage;
(t) Appraisal. Unless the Mortgage Loan was underwritten pursuant to
one of Countrywide's streamline documentation programs, the Credit File contains
an appraisal of the related Mortgaged Property signed prior to the approval of
the Mortgage Loan application by an appraiser who meets the minimum requisite
qualifications of an Agency and Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated thereunder
for appraisers, duly appointed by the originator, that had no interest, direct
or indirect in the Mortgaged Property, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan; the appraisal is in a form
acceptable to an Agency, with such riders as are acceptable to such Agency;
(u) Trustee for Deed of Trust. In the event the Mortgage constitutes
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(v) CLTV and LTV, Private Mortgage Insurance, FHA Insurance and VA
Guarantees. No Mortgage Loan that is a Second Lien Mortgage Loan has a CLTV
greater than 100%. No Mortgage Loan has an LTV greater than 100%. Each
Conventional Mortgage Loan, except a Second Lien Mortgage Loan or a Mortgage
Loan underwritten in accordance with sub-prime credit underwriting guidelines,
with an LTV at origination in excess of eighty percent (80%) is and will be
subject to a PMI Policy, which insures that portion of the Mortgage Loan over
seventy-five percent (75%) of the Appraised Value of the related Mortgaged
Property. All provisions of such PMI Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due thereunder
have been paid. Any Mortgage subject to any such PMI Policy obligates the
Mortgagor thereunder to maintain such insurance and to pay all premiums and
charges in connection therewith or, in the case of a lender paid mortgage
insurance policy, the premiums and charges are included in the Mortgage Interest
Rate for the Mortgage Loan. Each Government Mortgage Loan either has, or will
have in due course, a valid and enforceable MIC or LGC, as applicable and, in
each case, all premiums due thereunder have been paid. []Any Mortgage Loan
subject to a PMI Policy obligates the Mortgagor thereunder to maintain the PMI
Policy and to pay all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the related Mortgage Note is
net of any such insurance premium if the related PMI Policy is lender-paid;
(w) Lawfully Occupied. The Mortgaged Property is lawfully occupied
under applicable law. All inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same including certificates of
occupancy, have been made or obtained from the appropriate authorities;
(x) Assignment of Mortgage. Except for the absence of recording
information, the Assignment of Mortgage is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged Property
is located;
(y) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(z) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms acceptable to an Agency;
(aa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan and no Mortgage Loan originated on or after October 1, 2002 through March
6, 2003 is governed by the Georgia Fair Lending Act;
(bb) Type of Mortgaged Property. The Mortgaged Property is a fee
simple estate or a leasehold estate located in a jurisdiction in which the use
of a leasehold estate for residential properties is an accepted practice that
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two to four residential dwelling, or an
individual residential condominium unit in a condominium project, or an
individual unit in a planned unit development, or an individual unit in a
residential cooperative housing corporation; provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform in all material respects with the Underwriting
Guidelines. At the time of origination, no portion of the Mortgaged Property was
used for commercial purposes; provided, that Mortgaged Properties which contain
a home office shall not be considered as being used for commercial purposes.
None of the Mortgaged Properties are log homes, mobile homes, geodesic domes or
any other properties not eligible for financing pursuant to the applicable
Underwriting Guidelines;
(cc) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten generally in accordance with the Underwriting
Guidelines;
(dd) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(ee) Due On Sale. The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(ff) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(hh) No Violation of Environmental Laws. There is no pending action
or proceeding directly involving any Mortgaged Property of which Countrywide is
aware in which compliance with any environmental law, rule or regulation is an
issue;
(ii) Servicemembers' Civil Relief Act. The Mortgagor has not
notified Countrywide, and Countrywide has no knowledge of any relief requested
to the Mortgagor under the Relief Act;
(jj) Disclosure Materials. The Mortgagor has received all disclosure
materials required by applicable law with respect to the making of the Mortgage
Loans;
(kk) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct to perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade in or exchange of a Mortgaged Property;
(ll) Credit Information. For each Mortgage Loan, Countrywide or its
designee has furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and requisite information on its borrower
credit files to each of the following credit repositories: Equifax Credit
Information Services, Inc., Trans Union, LLC and Experian Information Solution,
Inc., on a monthly basis;
(mm) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground lease
will not terminate earlier than five years after the maturity date of the
Mortgage Loan; (3) the ground lease does not provide for termination of the
lease in the event of lessee's default without the mortgagee being entitled to
receive written notice of, and a reasonable opportunity to cure the default; (4)
the ground lease permits the mortgaging of the related Mortgaged Property; (5)
the ground lease protects the mortgagee's interests in the event of a property
condemnation; and (6) the use of leasehold estates for residential properties is
an accepted practice in the jurisdiction in which the Mortgaged Property is
located;
(nn) Prepayment Penalty. With respect to each Mortgage Loan that has
a Prepayment Penalty, each such Prepayment Penalty is enforceable and is
permitted pursuant to applicable federal, state and local law. With respect to
Mortgage Loans originated prior to October 1, 2002, no such Prepayment Penalty
may be imposed for a term in excess of five (5) years following origination;
(oo) Payment Terms. Principal payments on the Mortgage Loan
commenced no more than seventy days after funds were disbursed in connection
with the Mortgage Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Cap are as
set forth on the related Mortgage Note. Except with respect to any Option ARM
Mortgage Loan, the Mortgage Note is payable in monthly installments of principal
and interest, which installments of interest, with respect to Adjustable Rate
Mortgage Loans, are subject to change due to the adjustments to the Mortgage
Interest Rate on each Interest Rate Adjustment Date, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than fourty years from
commencement of amortization. Unless otherwise specified on the related Mortgage
Loan Schedule, the Mortgage Loan is payable on the first day of each month.
Except for Balloon Mortgage Loans, the Mortgage Loan does not require a balloon
payment on its stated maturity date;
(pp) Simple Interest Mortgage Loans. With respect to each Mortgage
Loan that is a simple interest Mortgage Loan, the Mortgage Loan is identified on
the related Mortgage Loan Schedule as a simple interest Mortgage Loan, the
Mortgage Loan is required to be serviced as a simple interest Mortgage Loan
pursuant to the terms of the related Mortgage Note, and the servicing and
collection practices used in connection therewith have been in accordance with
legal, proper, prudent and customary practices for servicing simple interest
Mortgage Loans;
(qq) Compliance with Anti-Money Laundering Laws. Countrywide has
established an anti-money laundering compliance program to the extent required
by applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2003, and the laws and regulations
administered by the U.S. Department of Treasury's Office of Foreign Assets
Control ("OFAC"), which prohibit dealings with certain countries, territories,
entities and individuals named in OFAC's Sanction Programs and on the Specially
Designated Nationals and Blocked Persons List. The Mortgage Loans have been
originated, and documentation related thereto shall be maintained, in material
compliance with such program; and
(rr) Fraud. No fraud, error, omission, misrepresentation or similar
occurrence, with respect to a Mortgage Loan has taken place on the part of
Countrywide or, to the best of Countrywide's knowledge, any other Person,
including without limitation, the Mortgagor, any appraiser, or any builder or
developer involved in connection with the origination of the Mortgage Loan or in
the application of any insurance in relation to such Mortgage Loan.
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 of this Agreement shall survive the sale of the
Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Collateral
Documents or Credit File. Upon discovery by either Countrywide or the Purchaser
of a breach of any of the foregoing representations and warranties that
materially and adversely affects the value of one or more of the related
Mortgage Loans, the party discovering such breach shall give prompt written
notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the earlier of
either discovery by or notice to Countrywide of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, or the Purchaser's interests therein, Countrywide shall use
its best efforts to promptly cure such breach in all material respects, and, if
such breach cannot be cured, Countrywide shall, at the Purchaser's option,
repurchase such Mortgage Loan at the Repurchase Price. In the event that a
breach shall involve any representation or warranty set forth in Section 3.01
hereof and such breach cannot be cured within sixty (60) days of the earlier of
either discovery by or notice to Countrywide of such breach, all of the Mortgage
Loans affected by such breach shall, at the Purchaser's option, be repurchased
by Countrywide at the Repurchase Price.
(c) Substitution or Repurchase. However, if the breach shall involve
a representation or warranty set forth in Section 3.02, (Countrywide shall,
rather than repurchase the Mortgage Loan as provided above, remove such Mortgage
Loan (a "Deleted Mortgage Loan") and substitute in its place a Qualified
Substitute Mortgage Loan or Loans. If Countrywide has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any repurchase
of a Mortgage Loan(s) pursuant to the provisions of this Section 3.03 shall be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price for distribution to the Purchaser on the next scheduled Remittance Date,
after deducting therefrom any amount received in respect of such repurchased
Mortgage Loan or Loans and being held in the Custodial Account for future
distribution. At the time of repurchase or substitution, the Purchaser and
Countrywide shall arrange for the reassignment of the Deleted Mortgage Loan and
release of the related Collateral File to Countrywide and the delivery to
Countrywide of any documents held by the Custodian relating to the Deleted
Mortgage Loan. In the event Countrywide determines to substitute a Qualified
Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide shall,
simultaneously with such reassignment, give written notice to the Purchaser that
such repurchase or substitution has taken place and amend the Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify the Qualified Substitute
Mortgage Loan(s) and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, Countrywide shall be deemed to have made
as to such Qualified Substitute Mortgage Loan(s) the representations and
warranties except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the date of such substitution. Countrywide
shall effect such substitution by delivering to the Custodian or to such other
party as the Purchaser may designate in writing the Collateral Documents for
such Qualified Substitute Mortgage Loan(s). Countrywide shall deposit in the
Custodial Account the Monthly Payment less the Servicing Fee due on such
Qualified Substitute Mortgage Loan(s) in the month following the date of such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution shall be retained by Countrywide. For the
month of substitution, distributions to the Purchaser shall include the Monthly
Payment due on any Deleted Mortgage Loan in the month of substitution, and
Countrywide shall thereafter be entitled to retain all amounts subsequently
received by Countrywide in respect of such Deleted Mortgage Loan.
For any month in which Countrywide substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, Countrywide shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Countrywide in the month of
substitution pursuant to Section 4.01 of the Servicing Agreement. Accordingly,
on the date of such substitution, Countrywide shall deposit from its own funds
into the Custodial Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution obligation,
Countrywide shall indemnify the Purchaser and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and expenses resulting from, a breach of any representation or warranty
contained in Sections 3.01 and 3.02 of this Agreement that materially and
adversely affects the value of one or more Mortgage Loans or the Purchaser's
interest therein.
(d) Sole Remedy. With respect to the breach of a representation and
warranty set forth in Section 3.01 and Section 3.02 hereof with respect to a
Mortgage Loan, the obligation under this Section 3.03 of Countrywide to cure,
repurchase, indemnify or replace such Mortgage Loan shall constitute the sole
remedy against Countrywide respecting such breach available to the Purchaser.
(e) Accrual of Cause of Action. Any cause of action against
Countrywide relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 hereof shall accrue as to any Mortgage
Loan upon (i) discovery of such breach by the Purchaser or notice thereof by
Countrywide to the Purchaser, (ii) failure by Countrywide to cure such breach or
repurchase such Mortgage Loan as specified above, and (iii) demand upon
Countrywide by the Purchaser for compliance with the relevant provisions of this
Agreement.
Section 3.04 Repurchase of Convertible Mortgage Loans.
In the event a Mortgagor exercises the option to convert a
Convertible Mortgage Loan to a Fixed Rate Mortgage Loan in accordance with the
terms of the related Mortgage Note, Countrywide shall repurchase such
Convertible Mortgage Loan within thirty (30) days of such conversion taking
effect at a price equal to on hundred percent (100%) of the unpaid principal
balance of such Convertible Mortgage Loan at the time of such conversion plus
accrued interest thereon through the last day of the month of repurchase at the
Mortgage Loan Remittance Rate; provided, however, no interest shall be due and
payable if a Convertible Mortgage Loan is repurchased on the first day of a
month. Any repurchase of a Convertible Mortgage Loan(s) pursuant to the
foregoing provisions of this Section 3.04 shall be accomplished by deposit in
the Custodial Account of the amount of said repurchase price for distribution to
the Purchaser on the next scheduled Remittance Date.
Section 3.05 Representations and Warranties Respecting the
Purchaser.
The Purchaser represents, warrants and covenants to Countrywide
that, as of each Closing Date:
(a) Organization and Standing. The Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified to transact business in and is in good
standing under the laws of each state in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires such qualification;
(b) Due Authority. The Purchaser has the full power and authority to
perform, and to enter into and consummate, all transactions contemplated by this
Agreement; the Purchaser has the full power and authority to purchase and hold
each Mortgage Loan;
(c) No Conflict. Neither the acquisition of the Mortgage Loans by
the Purchaser pursuant to this Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any of
the terms, conditions or provisions of the Purchaser's charter or by-laws or
result in a material breach of any legal restriction or any material agreement
or instrument to which the Purchaser is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the
foregoing, or result in the violation of any material law, rule, regulation,
order, judgment or decree to which the Purchaser or its property is subject;
(d) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to the Purchaser's knowledge,
threatened, which either in any one instance or in the aggregate, if determined
adversely to the Purchaser would adversely affect the purchase of the Mortgage
Loans by the Purchaser hereunder, or the Purchaser's ability to perform its
obligations under this Agreement; and
(e) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser with
this Agreement or the consummation of the transactions contemplated by this
Agreement (including, but not limited to, any approval from HUD), or if
required, such consent, approval, authorization or order has been obtained prior
to the related Closing Date.
Section 3.06 Indemnification by the Purchaser.
The Purchaser shall indemnify Countrywide and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and expenses resulting from, a breach of any representation
or warranty contained in Sections 3.05. With respect to the breach of a
representation and warranty set forth in Section 3.05 hereof, the obligation
under this Section 3.06 of the Purchaser to indemnify Countrywide shall
constitute the sole remedy against the Purchaser respecting such breach
available to Countrywide.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇
With copy to: General Counsel
(ii) the Purchaser:
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
With a copy to:
Barclays Bank PLC, as administrator
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E mail: ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
To the address and contact set forth in the related Purchase
Confirmation or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 4.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Countrywide and not a pledge of the Mortgage Loans by Countrywide to
the Purchaser to secure a debt or other obligation of Countrywide. Consequently,
the sale of each Mortgage Loan shall be reflected as a sale on Countrywide's
business records, tax returns and financial statements. Accordingly, Countrywide
and the Purchaser shall each treat the transaction for federal income tax
purposes as a sale by Countrywide, and a purchase by the Purchaser, of the
Mortgage Loans.
Section 4.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 4.04 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 4.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 4.06 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 4.07 Assignment of Mortgage Loans by the Purchaser.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans in a Whole Loan Transfer;
provided, however, that the transferee will not be deemed to be the Purchaser
hereunder unless such transferee shall agree in writing to be bound by the terms
of this Agreement in the form of an assignment, assumption and recognition
agreement ("AAR") reasonably acceptable to the Purchaser and Countrywide and an
original counterpart of the AAR shall have been executed by the Purchaser and
the transferee and delivered to Countrywide. Notwithstanding the foregoing, no
transfer shall be effective if such transfer would result in there being more
than three (3) "Purchasers" outstanding hereunder with respect to any Mortgage
Loan Package.
Section 4.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement and either the related Trade Confirmation
or the related Purchase Confirmation, the terms of the related Purchase
Confirmation shall control. In the event of any conflict, inconsistency or
ambiguity between the terms and conditions of the Trade Confirmation and the
Purchase Confirmation, the terms of the Purchase Confirmation shall control. In
the event of any conflict, inconsistency or ambiguity between the terms and
conditions of this Agreement and the Servicing Agreement, the terms of this
Agreement shall control.
Section 4.09 Governing Law.
This Agreement shall be deemed in effect when fully executed and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by applicable
federal law.
Section 4.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 4.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide and the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser. Except as specifically
set forth in Section 4.07 above, the Purchaser may not assign, pledge or
hypothecate this Agreement to any Person without Countrywide's prior written
consent.
Section 4.12 Confidentiality.
Countrywide and the Purchaser acknowledge and agree that the terms
of the Transaction Documents shall be kept confidential and their contents will
not be divulged to any party without the other party's consent, except to the
extent that it is appropriate for Countrywide and the Purchaser to do so in
working with legal counsel, auditors, taxing authorities, or other governmental
agencies.
Section 4.13 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to the sale of each Mortgage Loan Package and supersede all prior or
contemporaneous oral or written communications regarding same. Countrywide and
the Purchaser understand and agree that no employee, agent or other
representative of Countrywide or the Purchaser has any authority to bind such
party with regard to any statement, representation, warranty or other expression
unless said statement, representation, warranty or other expression is
specifically included within the express terms of this Agreement or the related
Trade Confirmation or Purchase Confirmation. Neither this Agreement nor the
related Trade Confirmation or Purchase Confirmation shall be modified, amended
or in any way altered except by an instrument in writing signed by both parties.
Section 4.14 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 4.15 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 4.16 No Solicitation
The Purchaser shall not take any action or cause any action to be
taken by any of its employees, agents or affiliates, or by any independent
contractors acting on the Purchaser's behalf, to solicit any borrower in any
manner whatsoever, including but not limited to, soliciting a borrower to prepay
or refinance a Mortgage Loan. Furthermore, neither the Purchaser nor any of its
affiliates shall directly or indirectly provide information to any third party
for purposes of soliciting the borrowers related to the Mortgage Loans. It is
understood that promotions undertaken by the Purchaser or its affiliates which
are directed to the general public at large (i.e., newspaper advertisements,
radio or T.V. ads, etc.) and not specifically directed to the borrowers related
to the Mortgage Loans shall not constitute a breach of this section. Countrywide
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors or independent mortgage
brokerage companies on Countrywide's behalf, to personally, by telephone or
mail, solicit the borrower under any Mortgage Loan for the purpose of
refinancing such Mortgage Loan; provided, that Countrywide may solicit any
borrower for whom Countrywide has received a request for verification of
mortgage, a request for demand for payoff, a borrower initiated written or
verbal communication indicating a desire to prepay the related Mortgage Loan, or
the borrower initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Countrywide or any of its affiliates which
concern optional insurance products or other additional products shall not
constitute solicitation nor is Countrywide prohibited from responding to
unsolicited requests or inquiries made by a borrower or an agent of a borrower.
Notwithstanding the foregoing, the following solicitations, if undertaken by
Countrywide or any affiliate of Countrywide, shall not be prohibited: (i)
solicitations or promotions that are directed to the general public at large,
including, without limitation, mass mailings based on mailing lists and
newspaper, radio, television and other mass media advertisements and (ii)
borrower messages included on, and statement inserts provided with, the monthly
statements sent to borrowers; provided, however, that similar messages and
inserts are sent to all other borrowers of similar type mortgage loans serviced
by Countrywide and such affiliates, including, but not limited to, those
mortgage loans serviced for the Countrywide's and/or such affiliates own
account; and (iii) solicitations made as a part of a campaign directed to
borrowers with mortgage loans meeting certain defined parameters (other than
parameters relating to the borrowers or Mortgage Loans specifically), provided,
that such solicitations are made to all borrowers of mortgage loans serviced by
Countrywide and such affiliates with respect to mortgage loans meeting such
defined parameters, including, but not limited to, those mortgage loans serviced
for the Countrywide's and/or such affiliates own account.
Section 4.17 Consent to Service of Process.
EACH OF THE PURCHASER AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE
NON EXCLUSIVE JURISDICTION OF THE COURTS OF THE SATE OF NEW YORK AND THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN
ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT
IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF
PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS
PROVIDED FOR NOTICES HEREUNDER.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the date first above written.
COUNTRYWIDE HOME LOANS, INC.,
Countrywide
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
BARCLAYS BANK PLC,
the Purchaser
By:
----------------------------------
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original Mortgage Note (or a lost note affidavit in a
form acceptable to an Agency) bearing all intervening endorsements,
endorsed "Pay to the order of _____________, without recourse" and signed
in the name of Countrywide by an authorized officer.
2. Assignment of Mortgage: The original Assignment of Mortgage in blank.
3. Guarantee: The original of any guarantee executed in connection with the
Mortgage Note.
4. Mortgage: The original Mortgage with evidence of recording thereon or, if
such original Mortgage has not been returned to Countrywide on or prior to
the Closing Date by the public recording office where such Mortgage has
been delivered for recordation, a copy of such Mortgage certified by
Countrywide to be a true and complete copy of the original Mortgage sent
for recordation.
5. Modifications: The originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording thereon,
if any.
6. Intervening Assignments: The originals of all intervening assignments of
Mortgage with evidence of recording thereon, provided that such originals
have been returned to Countrywide by the public recording office where
such intervening assignment of Mortgage has been delivered for
recordation.
7. Title Policy: If applicable, the original mortgagee title insurance policy
(or the equivalent thereof with respect to any Mortgage Loan in which the
related Mortgaged Property is located in a jurisdiction where such title
insurance is not customarily provided) if such title insurance policy has
been issued by the related title company on or prior to the Closing Date.
8. Loan Guaranty Certificate: The original Loan Guaranty Certificate, if
applicable.
9. Mortgage Insurance Certificate: The original Mortgage Insurance
Certificate, if applicable.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: [CONTACT, TITLE]
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between
Countrywide Home Loans, Inc. ("Countrywide") and Barclays Bank PLC ("Purchaser")
sets forth our agreement pursuant to which Purchaser is purchasing, and
Countrywide is selling those certain mortgage loans identified in Exhibit A
hereto and more particularly described herein, excluding the servicing rights
related thereto (the "Mortgage Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of [DATE], between Countrywide and Purchaser (as
amended herein and otherwise, the "Purchase Agreement") and that certain
Servicing Agreement dated as of [DATE] between Countrywide and Purchaser (both
the Purchase Agreement and the Servicing Agreement shall be referred to herein,
as applicable, as the "Agreement"). By executing this Purchase Confirmation,
each of Countrywide and Purchaser again makes, with respect to itself and each
Mortgage Loan, as applicable, all of the covenants, representations and
warranties made by each such party in the Agreement, except as the same may be
amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the Purchase
Agreement, Countrywide shall sell, transfer, assign and convey to Purchaser,
without recourse, but subject to the terms of the Purchase Confirmation and the
Purchase Agreement, all of the right, title and interest of Countrywide in and
to the Mortgage Loans, excluding the servicing rights relating thereto. Each
Mortgage Loan shall be serviced by Countrywide pursuant to the terms of the
Servicing Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
[d. Index: On each Interest Adjustment Date, the applicable index
rate shall be a rate per annum equal to [the weekly average yield on U.S.
Treasury securities adjusted to a constant maturity of one year, as published by
the Board of Governors of the Federal Reserve System in Statistical Release No.
H.15] [the average of interbank offered rates for six-month U.S. dollar
denominated deposits in the London market (LIBOR), as published [in the Wall
Street Journal] [by ▇▇▇▇▇▇ Mae] [the 11th District Cost of Funds as made
available by the Federal Home Loan Bank] [the weekly average yield on
certificates of deposit adjusted to a constant maturity of six months as
published by the Board of Governors of the Federal Reserve System in Statistical
Release No. H.15 or a similar publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C] hereto.
Notwithstanding anything contained in Section 2.04 of the Purchase Agreement to
the contrary, Countrywide's obligation to repurchase from the Purchaser the
Mortgage Loan related to a Missing Credit Document shall occur only in the event
of a default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Countrywide's obligation to deliver the Missing
Credit Document within the time specified in Section 2.04 of the Purchase
Agreement.
[f. Pending Mortgage Loans: As set forth in Exhibit [C] hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans] [each
Mortgage Loan], and as set forth in Exhibit [A] and Exhibit [B] hereto, the sum
of (a) the product of (i) the Cut-off Date Balance of [such Mortgage Loan] [such
Mortgage Loans], and (ii) the purchase price percentage set forth in Exhibit [A]
hereto for such [Mortgage Loan] [Mortgage Loans], and (b) accrued interest from
the Cut-off Date through the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the period
prior to the initial Interest Adjustment Date, [0.25]% and, thereafter,
[0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Conventional] [Government]
Mortgage Loan and a [Adjustable Rate] [Balloon] [Convertible] [Fixed Rate]
Mortgage Loan.
▇. ▇▇▇▇ Position: Each Mortgage Loan is secured by a perfected
[first] [second] lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten
generally in accordance with Countrywide's credit underwriting guidelines in
effect at the time such Mortgage Loan was originated] [conforms to the ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac mortgage eligibility criteria (as such criteria applies to
Countrywide) and is eligible for sale to, and securitization by, ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac] [conforms in all material respects to the GNMA mortgage eligibility
criteria and is eligible for sale and securitization into a GNMA mortgage-backed
security] [at the time of origination was underwritten to guidelines which are
consistent with an institutional investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase
Confirmation by signing in the appropriate space below and returning this
Purchase Confirmation to the undersigned. Telecopy signatures shall be deemed
valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. BARCLAYS BANK PLC
By: By:
------------------------------ ------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name:
Title: Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(attached)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(attached)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
------------------------------ ------------------------ --------------------
LOAN LOAN
COUNT NUMBER DOCUMENT
------------------------------ ------------------------ --------------------
------------------------------ ------------------------ --------------------
------------------------------ ------------------------ --------------------
------------------------------ ------------------------ --------------------
------------------------------ ------------------------ --------------------
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
------------------------------ ------------------------ --------------------
LOAN LOAN
COUNT NUMBER DOCUMENT
------------------------------ ------------------------ --------------------
------------------------------ ------------------------ --------------------
------------------------------ ------------------------ --------------------
------------------------------ ------------------------ --------------------
------------------------------ ------------------------ --------------------
EXHIBIT C
[RESERVED]
EXHIBIT D
FORM OF TRADE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: [CONTACT, TITLE]
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Barclays Bank
PLC (Deal No. yrmm-xxx)
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Barclays Bank
PLC ("Purchaser") and Countrywide Home Loans, Inc. ("Countrywide") pursuant to
which Purchaser has agreed to purchase, and Countrywide has agreed to sell,
those certain mortgage loans [identified][summarized] in Exhibit A hereto (the
"Mortgage Loans"), subject to the terms set forth herein.
Closing Date: _________ __, [year][, provided, however, that the
parties shall use their best efforts to consummate the transaction prior to
[DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in Exhibit A.
[Loan-level pricing as set forth in Exhibit A.]
Product: [Jumbo]["A"][A-"]["Alt A"] [Sub-prime] [Conforming]
[Conventional] [Government] [Second Lien/HELOC] [[fixed][(x/1) Index adjustable]
rate mortgage loans]. (undefined terms should not be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Countrywide and serviced on
a [scheduled/scheduled] [actual/actual] [scheduled][actual] basis for the
servicing fee rate [equal to FEE% per annum][set forth in Exhibit A [for each
Mortgage Loan]]. [ With respect to the period prior to the initial Interest
Adjustment Date, 0.25% and, thereafter, 0.375%].
Prepayment Penalties: Barclays Bank PLC shall be entitled to any
penalties resulting from the prepayment of any Mortgage Loans by the related
mortgagor(s).
Documentation: [Assignment of a [type of agreement]] [Industry
standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation. Countrywide may, at its option, elect
to substitute comparable mortgage loans for any Mortgage Loans rejected by
Purchaser pursuant to the preceding sentence.]
[Countrywide's sale of the Mortgage Loans is expressly subject to
(a) the review of the Mortgage Loans by Purchaser to confirm conformance with
the Trade Confirmation, and (b) purchase of the Mortgage Loans by Countrywide on
or before the Closing Date from the current owner of the Mortgage Loans (the
"Current Owner"). If either of the foregoing conditions are not satisfied,
Countrywide shall have no liability to Purchaser.]
Non-Circumvent: Countrywide and Purchaser understand and agree that
Countrywide may introduce the owner of the Mortgage Loans to Purchaser, that the
Current Owner is a customer of Countrywide and that such relationship of
Countrywide is confidential. Purchaser agrees, with respect to the Current
Owner, Purchaser will not, for the purpose of purchasing other mortgage loans
[for a period of one year from the Closing Date], communicate with or purchase
such other mortgage loans from the Current Owner unless the Current Owner has
had previous business dealings (other than any transactions involving Agreed to
and Accepted by: Countrywide) with the Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. BARCLAYS BANK PLC
By: By:
--------------------------- ------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name:
Title: Title:
EXHIBIT A
to
TRADE CONFIRMATION
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(attached)
EXHIBIT B
to
TRADE CONFIRMATION
UNDERWRITING GUIDELINES
(attached)
EXHIBIT E
COUNTRYWIDE HOME LOANS, INC.
OFFICER'S CERTIFICATE
I, [NAME], hereby certify that I am the duly elected [TITLE] of
Countrywide Home Loans, Inc., a corporation organized under the laws of the
State of New York ( "Countrywide") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the Certificate of Incorporation of Countrywide which is in full force
and effect on the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the By-laws of Countrywide which are in effect on the date hereof.
3. Attached hereto as Exhibit 3 is a Certificate of Good Standing of
Countrywide issued within ten days of the date hereof, and no event has
occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of Countrywide
authorizing Countrywide to execute and deliver each of the [Master
Mortgage Loan Purchase Agreement and Servicing Agreement], dated as of
[DATE], by and among [PARTY] (the "Purchaser"), and Countrywide (the "Sale
and Servicing Agreement")] and to endorse the [Mortgage Notes and execute
the Assignments of Mortgages by facsimile signature], and such resolutions
are in effect on the date hereof.
5. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of Countrywide, signed (a) the [Sale and
Servicing Agreement], and (b) any other document delivered or on the date
hereof in connection with any purchase described in the agreements set
forth above was, at the respective times of such signing and delivery, and
is now, a duly elected or appointed, qualified and acting officer or
representative of Countrywide, who holds the office set forth opposite his
or her name on Exhibit 5, and the signatures of such persons appearing on
such documents are their genuine signatures.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of Countrywide.
Dated: [DATE]
By:__________________________
Name: [NAME]
Title: [TITLE]
[SEAL]
I, [NAME OF ASSISTANT SECRETARY], an Assistant Secretary of
Countrywide, hereby certify that [NAME] is the duly elected, qualified and
acting [TITLE] of Countrywide and that the signature appearing above is her
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: [DATE]
By:___________________________
Name: [NAME]
Title: Assistant Secretary
[SEAL]
EXHIBIT 1
to
OFFICER'S CERTIFICATE
EXHIBIT 2
to
OFFICER'S CERTIFICATE
EXHIBIT 3
to
OFFICER'S CERTIFICATE
EXHIBIT 4
to
OFFICER'S CERTIFICATE
RESOLUTIONS ADOPTED BY
THE BOARD OF DIRECTORS OF
COUNTRYWIDE HOME LOANS, INC.
AS OF [DATE]
EXHIBIT 5
to
OFFICER'S CERTIFICATE
NAME TITLE SIGNATURE
------------------------ ---------------------- ----------------------
------------------------ ---------------------- ----------------------
------------------------ ---------------------- ----------------------
------------------------ ---------------------- ----------------------
------------------------ ---------------------- ----------------------
------------------------ ---------------------- ----------------------
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Barclays Bank PLC from the company named on the next page (the
"Company") pursuant to that certain Mortgage Loan Purchase Agreement, dated as
of ______ __, 200_, and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Company or its designees, as of the date and time
of the sale of such Mortgage Loans to Barclays Bank PLC. Such release shall be
effective automatically without any further action by any party upon payment in
one or more installments, in immediately available funds, of $_____________, in
accordance with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
_______________________________________
(Name)
_______________________________________
(Address)
_______________________________________
_______________________________________
_______________________________________
By:____________________________________
II. Certification of Release
The Company named below hereby certifies to Barclays Bank PLC that,
as of the date and time of the sale of the above-mentioned Mortgage Loans to
Barclays Bank PLC the security interests in the Mortgage Loans released by the
above-named financial institution comprise all security interests relating to or
affecting any and all such Mortgage Loans. The Company warrants that, as of such
time, there are and will be no other security interests affecting any or all of
such Mortgage Loans.
By:
Title:
Date:
EXHIBIT M
SERVICING AGREEMENTS
EXHIBIT 10.3
================================================================================
SERVICING
AGREEMENT
between
BARCLAYS BANK PLC
Purchaser
and
INDYMAC BANK, F.S.B.
Seller/Servicer
Dated as of October 1, 2006
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions....................................................1
ARTICLE II
SERVICING
Section 2.01 Seller to Act as Servicer.....................................
Section 2.02 Liquidation of Mortgage Loans.................................
Section 2.03 Collection of Mortgage Loan Payments..........................
Section 2.04 Establishment of and Deposits to Custodial Account............
Section 2.05 Permitted Withdrawals from Custodial Account..................
Section 2.06 Establishment of and Deposits to Escrow Account...............
Section 2.07 Permitted Withdrawals from Escrow Account.....................
Section 2.08 Payment of Taxes, Insurance and Other Charges.................
Section 2.09 Protection of Accounts........................................
Section 2.10 Maintenance of Hazard Insurance...............................
Section 2.11 Maintenance of Mortgage Impairment Insurance..................
Section 2.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance....................................................
Section 2.13 Inspections...................................................
Section 2.14 Restoration of Mortgaged Property.............................
Section 2.15 Title, Management and Disposition of REO Property.............
Section 2.16 Permitted Withdrawals with Respect to REO Property............
Section 2.17 Real Estate Owned Reports.....................................
Section 2.18 Liquidation Reports...........................................
Section 2.19 Reports of Foreclosures and Abandonments of Mortgaged Property
Section 2.20 Notification of Adjustments...................................
Section 2.21 Maintenance of PMI Policy; Claims.............................
ARTICLE III
PAYMENTS TO PURCHASER
Section 3.01 Remittances...................................................
Section 3.02 Statements to Purchaser.......................................
Section 3.03 Advances by Seller............................................
ARTICLE IV
GENERAL SERVICING PROCEDURES
Section 4.01 Transfers of Mortgaged Property...............................
Section 4.02 Satisfaction of Mortgages and Release of Mortgage Files.......
Section 4.03 Servicing Compensation........................................
Section 4.04 Annual Statement as to Compliance.............................
Section 4.05 Annual Independent Public Accountants' Servicing Report.......
Section 4.06 Right to Examine Seller Records...............................
Section 4.07 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999................
Section 4.08 Credit Reporting..............................................
Section 4.09 Subservicing..................................................
ARTICLE V
SELLER TO COOPERATE
Section 5.01 Provision of Information......................................
Section 5.02 Financial Statements; Servicing Facilities....................
ARTICLE VI
TERMINATION
Section 6.01 Agency Suspension.............................................
Section 6.02 Damages.......................................................
Section 6.03 Termination...................................................
Section 6.04 Termination without Cause.....................................
ARTICLE VII
BOOKS AND RECORDS
Section 7.01 Possession of Servicing Files.................................
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification...............................................
Section 8.02 Limitation on Liability of Seller and Others..................
Section 8.03 Limitation on Resignation and Assignment by Seller............
Section 8.04 Assignment by Purchaser.......................................
Section 8.05 Merger or Consolidation of the Seller.........................
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
Section 9.01 Authority and Capacity........................................
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 10.01 Due Organization and Authority................................
Section 10.02 Ordinary Course of Business...................................
Section 10.03 No Conflicts..................................................
Section 10.04 Ability to Service............................................
Section 10.05 Ability to Perform............................................
Section 10.06 No Litigation Pending.........................................
Section 10.07 No Consent Required...........................................
Section 10.08 No Untrue Information.........................................
Section 10.09 Reasonable Servicing Fee......................................
Section 10.10 Credit Reporting..............................................
Section 10.11 Mortgage Loans with Prepayment Premiums.......................
Section 10.12 Ability to Service............................................
Section 10.13 Reasonable Servicing Fee......................................
ARTICLE XI
DEFAULT
Section 11.01 Events of Default.............................................
Section 11.02 Waiver of Defaults............................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Notices.......................................................
Section 12.02 Waivers.......................................................
Section 12.03 Entire Agreement; Amendment...................................
Section 12.04 Execution; Binding Effect.....................................
Section 12.05 Headings......................................................
Section 12.06 Relationship of Parties.......................................
Section 12.07 Severability of Provisions....................................
Section 12.08 Recordation of Assignments of Mortgage........................
Section 12.09 Exhibits......................................................
Section 12.10 Counterparts..................................................
Section 12.11 No Solicitation...............................................
Section 12.12 Cooperation of Seller with a Reconstitution...................
Section 12.13 Governing Law Jurisdiction; Consent to Service of Process.....
Section 12.14 Waiver of Trial by Jury.......................................
ARTICLE XIII
COMPLIANCE WITH REGULATION AB PROVISIONS
Section 13.01 Intent of the Parties; Reasonableness.........................
Section 13.02 Additional Representations and Warranties of the Seller.......
Section 13.03 Information to Be Provided by the Seller......................
Section 13.04 Servicer Compliance Statement.................................
Section 13.05 Report on Assessment of Compliance and Attestation............
Section 13.06 Use of Subservicers and Subcontractors........................
Section 13.07 Indemnification; Remedies.....................................
EXHIBITS
--------
EXHIBIT 1 FORM OF TRIAL BALANCE
EXHIBIT 2 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 3 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT 4 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT 5 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT 6 FORM OF MONTHLY REO PROPERTY STATEMENT
EXHIBIT 7 FORM OF LIQUIDATION REPORT
EXHIBIT 8 FORM OF MONTHLY REMITTANCE ADVICE
EXHIBIT 9 FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT 10 [RESERVED]
EXHIBIT 11 FORM OF ANNUAL CERTIFICATION
EXHIBIT 12 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
SERVICING AGREEMENT
This Servicing Agreement (the "Servicing Agreement" or the
"Agreement") is entered into as of October 1, 2006, by and between INDYMAC BANK,
F.S.B., a federal savings bank (the "Seller"), and BARCLAYS BANK PLC, a Delaware
limited liability company (the "Purchaser").
WHEREAS, the Purchaser and the Seller entered into a Mortgage Loan
Purchase Agreement dated as of October 1, 2006 (the "Purchase Agreement")
pursuant to which the Purchaser has agreed to purchase, from time to time, from
the Seller, certain first and second lien, adjustable-rate and fixed-rate
residential mortgage loans (the "Mortgage Loans") to be delivered as whole loans
(each, a "Mortgage Loan Package") on a servicing retained basis; and
WHEREAS, the Purchaser desires to have the Seller service and
administer the Mortgage Loans on behalf of the Purchaser, and the parties desire
to provide the terms and conditions of such servicing by the Seller.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and for other good and valuable consideration, the
receipt and the sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
All capitalized terms not otherwise defined herein have the
respective meanings set forth in the Purchase Agreement. The following terms are
defined as follows:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Ancillary Income: All late charges, assumption fees, escrow account
benefits, reinstatement fees, Prepayment Penalties, and similar types of fees
arising from or in connection with any Mortgage, to the extent not otherwise
payable to the Mortgagor under applicable law or pursuant to the terms of the
related Mortgage Note.
Best's: Best's Key Rating Guide.
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase and the Seller from time to time shall sell the Mortgage
Loans listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 2.04.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: The earlier of two (2) Business Days prior to
the related Remittance Date, or the 15th day of the month in which the related
Remittance Date occurs.
Due Period: With respect to each Remittance Date, the period
commencing on the first day of the month preceding the month of the Remittance
Date and ending on the last day of the month preceding the month of the
Remittance Date.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Seller pursuant to Section 2.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 2.06.
Escrow Payment: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 11.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ Mae Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇ Mae
Servicers' Guide, and all amendments or additions thereto.
Fidelity Bond: A fidelity bond to be maintained by the Seller
pursuant to Section 2.12.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each adjustable rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Monthly Remittance Advice: As defined in Section 3.02.
Mortgage Impairment Insurance: A mortgage impairment or blanket
hazard insurance policy as described in Section 2.11.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property (or leasehold estate, if applicable)
securing repayment of a related Mortgage Note, consisting of an unsubordinated
estate in fee simple or, with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a widely
accepted practice, a leasehold estate, in a single parcel or multiple parcels of
real property improved by a Residential Dwelling. With respect to a Co-op Loan,
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President, Vice President or an
Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Seller, and delivered to
the Purchaser.
PMI Policy or Primary Insurance Policy: A policy of primary mortgage
guaranty insurance issued by a Qualified Insurer.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any Prepayment Penalty or premium thereon, if so provided in the
related Purchase Price and Terms Agreement, and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Principal Prepayment Period: The period beginning on the second day
of the month preceding the month in which the related Remittance Date occurs and
ending on the first day of the month in which the related Remittance Date
occurs.
Purchase Agreement: The Mortgage Loan Purchase Agreement between the
Purchaser and the Seller related to the purchase of the Mortgage Loans dated as
of the initial Cut-off Date.
Qualified Depository: A commercial bank, a savings bank or a savings
and loan association (which may be a depository affiliate of the Servicer) which
meets the guidelines set forth by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac as an eligible
depository institution for custodial accounts. In any case, the Custodial
Account shall be insured by the FDIC in a manner which shall provide maximum
available insurance thereunder and which may be drawn on by the Servicer.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac and whose claims paying ability is rated in the highest
category by any of the Rating Agencies with respect to primary mortgage
insurance and, in addition, in the two highest rating categories by Best's with
respect to hazard and flood insurance or such other rating as may be required by
a Rating Agency in connection with a Securitization Transaction in order to
achieve the desired ratings for the securities to be issued in connection with
such Securitization Transaction.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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. 1506-1631 (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.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of Subchapter M of Chapter
1, of the Code, and related provisions, and proposed, temporary and final
Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month, beginning with
the first Remittance Date on November 18, 2006.
REO Property: A Mortgaged Property acquired by the Purchaser or its
designee or the Seller on behalf of the Purchaser through foreclosure or by deed
in lieu of foreclosure, as described in Section 2.15.
Regulation AB: Regulation AB under the Securities Act and the
Securities Exchange Act, as such regulation may be amended from time to time.
Securities Act: The federal Securities Act of 1933, as amended.
Securities Exchange Act: The federal Securities Exchange Act of
1934, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: As defined in the recitals to this Agreement.
Servicer: As defined in Section 13.03(c).
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Seller of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage and (d) compliance with the obligations under Section 2.08
(except with respect to any expenses incurred in connection with procuring or
transferring Tax Service Contracts as provided therein).
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: With respect to each Mortgage Loan subject to this
Agreement, the amount of the annual fee the Purchaser shall pay to the Seller,
which shall, for each month, be equal to one-twelfth of (i) the product of the
Servicing Fee Rate and (ii) the unpaid principal balance of such Mortgage Loan.
Such fee shall be payable monthly, computed on the basis of the same principal
amount and period respecting which any related interest payment on a Mortgage
Loan is computed, and shall be pro rated (based upon the number of days of the
related month the Seller so acted as Seller relative to the total number of days
in that month) for each part thereof.
Servicing Fee Rate: With respect to each Mortgage Loan, an amount
equal to 0.375% per annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller, during the period in which the Seller is acting as
servicer pursuant to this Agreement, consisting of originals of all documents in
the Mortgage File which are not delivered to the Purchaser, its designee or the
Custodian and copies of the Mortgage Loan Documents listed on Exhibit A to the
Purchase Agreement.
Servicer Information: As defined in Section 13.07(a).
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 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 the
Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Seller or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Seller under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
Tax Service Contract: A paid-in-full, life-of-loan tax service
contract with First American Real Estate Tax Service, as described in Section
2.08 hereof.
Termination Fee: The amount paid by the Purchaser to the Seller in
the event of the Seller's termination, without cause, as servicer. Such fee
shall equal the percentage amount set forth in Section 6.04 hereof of the then
current aggregate unpaid principal balance of the related Mortgage Loans.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
ARTICLE II
SERVICING
Section 2.01 Seller to Act as Servicer.
(a) From and after the related Closing Date, the Seller, as an
independent contractor, shall service and administer the Mortgage Loans and
shall have full power and authority, acting alone or through subservicers or
agents, to do any and all things in connection with such servicing and
administration which the Seller may deem necessary or desirable, consistent with
the terms of this Agreement and with Accepted Servicing Practices. Except as set
forth in this Agreement, the Seller shall service the Mortgage Loans in strict
compliance with the servicing provisions related to the ▇▇▇▇▇▇ ▇▇▇ MBS Program
(Special Servicing Option) of the ▇▇▇▇▇▇ Mae Guides. In the event of any
conflict, inconsistency or discrepancy between any of the servicing provisions
of this Agreement and any of the servicing provisions of the ▇▇▇▇▇▇ ▇▇▇ Guides,
the provisions of this Agreement shall control and be binding upon the Purchaser
and the Seller.
Consistent with the terms of this Agreement, the Seller may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Seller's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not individually or in the aggregate
materially adverse to the Purchaser, provided, however, that unless the Seller
has obtained the prior written consent of the Purchaser, the Seller shall not
(unless the Mortgagor is in default with respect to the Mortgage Loan, or such
default is, in the judgment of the Servicer, imminent) permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest Rate,
defer or forgive the payment of principal or interest or any penalty or premium
on the prepayment of principal, reduce or increase the outstanding principal
balance (except for actual payments of principal) or change the final maturity
date on such Mortgage Loan. Without limiting the generality of the foregoing,
the Seller shall continue, and is hereby authorized and empowered, to execute
and deliver on behalf of itself and the Purchaser, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Seller, the
Purchaser shall furnish the Seller with any powers of attorney and other
documents necessary or appropriate to enable the Seller to carry out its
servicing and administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, the Seller shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Seller. In addition, the
Seller shall retain adequate personnel to effect such servicing and
administration of the Mortgage Loans.
The Seller shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Seller
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, Seller shall be under no obligation to deal with any
Person with respect to this Agreement or the Mortgage Loans unless the Seller
has been notified of such transfers as provided in this Section 2.01. The
Purchaser may sell and transfer, in whole or in part, the Mortgage Loans,
provided that no such sale and transfer shall be binding upon Seller unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
the Purchase Agreement. Upon the execution of such writing, the Seller shall
▇▇▇▇ its books and records to reflect the ownership of the Mortgage Loans by
such assignee, and the previous Purchaser shall be released from its obligations
hereunder. This Agreement shall be binding upon and inure to the benefit of the
Purchaser and the Seller and their permitted successors, assignees and
designees.
The Servicing File retained by the Seller pursuant to this Agreement
shall be appropriately marked and identified in the Seller's computer system to
clearly reflect the sale of the related Mortgage Loan to the Purchaser. The
Seller shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement, except when such release
is required in connection with a repurchase of any such Mortgage Loan pursuant
to Section 9 of the Purchase Agreement.
The Seller shall forward to the Custodian or, at the request of the
Purchaser, to the Purchaser or its designee, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Seller shall provide the Custodian with a
certified true copy of any such document submitted for recordation within two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within 90 days of the related Closing Date, and in the event
that the Seller does not cure such failure within 30 days of discovery or
receipt of written notification of such failure from the Purchaser, the related
Mortgage Loan shall, upon the request of the Purchaser, be repurchased by the
Seller at the price and in the manner specified in Section 9 of the Purchase
Agreement. The foregoing repurchase obligation shall not apply in the event that
the Seller cannot deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction, provided that (i) the Seller shall deliver a recording receipt of
such recording office or, if such recording receipt is not available, an
Officer's Certificate of the Seller, which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay caused by the public recording office, (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, and (iv) specify the
date the applicable recorded document will be delivered to the Custodian;
provided, however, that any recorded document shall in no event be delivered
later than one year following the related Closing Date.
The Seller must have an internal quality control program that
verifies in a manner consistent with accepted industry procedures, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions. The program must be capable of
evaluating and monitoring the overall quality of it's loan production and
servicing activities. The program is to ensure that the Mortgage Loans are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, the Seller shall not
take any action, cause the 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 the REMIC as a REMIC
or (ii) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on "prohibited transactions" as defined in Section 860(a)(2)
of the Code and the tax on "contributions" to a REMIC set forth in Section 860D
of the Code) unless the Seller has received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such REMIC status or result in the
imposition of any tax on the REMIC.
(b) In addition to the Seller's servicing obligations as set forth
herein, the Seller shall not consent to the placement of a lien on the Mortgaged
Property senior to that of the related Mortgage.
Section 2.02 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 2.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Seller shall take such action as (1) the Seller
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, (3) the Seller shall determine prudently to be in the best
interest of Purchaser and (4) is consistent with any related PMI Policy. In the
event that any payment due under any Mortgage Loan is not postponed pursuant to
Section 2.01 and remains delinquent for a period of 60 days or any other default
continues for a period of 60 days beyond the expiration of any grace or cure
period (or such other period as is required by law in the jurisdiction where the
related Mortgaged Property is located), the Seller shall commence foreclosure
proceedings in accordance with the ▇▇▇▇▇▇ ▇▇▇ Guides, provided that, prior to
commencing foreclosure proceedings, the Seller shall notify the Purchaser in
writing of the Seller's intention to do so, and the Seller shall not commence
foreclosure proceedings if the Purchaser objects to such action within ten (10)
Business Days of receiving such notice. In such connection, the Seller shall
from its own funds make all necessary and proper Servicing Advances, provided,
however, that the Seller shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration or preservation of
any Mortgaged Property, unless it shall determine (a) that such preservation,
restoration and/or foreclosure will increase the proceeds of liquidation of the
Mortgage Loan to Purchaser after reimbursement to itself for such expenses and
(b) that such expenses will be recoverable by it either through Liquidation
Proceeds (respecting which it shall have priority for purposes of withdrawals
from the Custodial Account pursuant to Section 2.05) or through Insurance
Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure, in the event the Seller has reasonable cause to
believe that a Mortgaged Property is contaminated by hazardous or toxic
substances or wastes, or if the Purchaser otherwise requests an environmental
inspection or review of such Mortgaged Property to be conducted by a qualified
inspector the Seller shall cause the Mortgaged Property to be so inspected at
the Purchaser's expense. Upon completion of the inspection, the Seller shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser
shall determine how the Seller shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the Purchaser directs the Seller to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Seller shall be reimbursed for
all reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Seller, the Seller shall be entitled to be
reimbursed from amounts in the Custodial Account pursuant to Section 2.05
hereof. In the event the Purchaser directs the Seller not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Seller shall be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 2.05 hereof.
Section 2.03 Collection of Mortgage Loan Payments.
Continuously from the related Closing Date, the Seller shall proceed
diligently to collect all payments due under each of the related Mortgage Loans
when the same shall become due and payable and shall take special care in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loans and each related
Mortgaged Property, to the end that the installments payable by the Mortgagors
will be sufficient to pay such charges as and when they become due and payable.
Section 2.04 Establishment of and Deposits to Custodial Account.
The Seller shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans separate and apart from any of its own funds and
general assets and shall establish one or more Custodial Accounts, in the form
of time deposit or demand accounts, to be maintained in trust for the Purchaser
and titled "IndyMac Bank, F.S.B., in trust for Barclays Bank PLC as Purchaser of
Mortgage Loans." The Custodial Account shall be established with a Qualified
Depository acceptable to the Purchaser. The Seller and the Purchaser intend that
the Custodial Account be a special deposit account. Any funds deposited in the
Custodial Account shall at all times be fully insured to the full extent
permitted under applicable law. The creation of any Custodial Account shall be
evidenced by a certification in the form of Exhibit 2 hereto, in the case of an
account established with the Seller, or by a letter agreement in the form of
Exhibit 3 hereto, in the case of an account held by a depository other than the
Seller. A copy of such certification or letter agreement shall be furnished to
the Purchaser and, upon request, to any subsequent purchaser.
The Seller shall deposit in the Custodial Account on a daily basis
and retain therein, the following collections received by the Seller and
payments made by the Seller after the related Cut-off Date, other than payments
of principal and interest due on or before the related Cut-off Date or received
by the Seller prior to the related Cut-off Date but allocable to a period
subsequent thereto:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage;
(iii) all Liquidation Proceeds and any amount received with respect
to REO Property;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 2.10 (other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Section 2.14),
Section 2.11 and 2.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 2.14;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Section 2.01, 2.09, 2.16, 3.01, 4.01 or 4.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 9 of the Purchase Agreement; and
(viii) any amounts required to be deposited by the Seller pursuant
to Section 2.11 in connection with the deductible clause in any blanket
hazard insurance policy.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, unless otherwise provided herein, Ancillary Income
need not be deposited by the Seller into the Custodial Account. Any interest
paid on funds deposited in the Custodial Account by the depository institution
shall accrue to the benefit of the Seller and the Seller shall be entitled to
retain and withdraw such interest from the Custodial Account pursuant to Section
2.05.
Section 2.05 Permitted Withdrawals from Custodial Account.
Subject to Section 3.01, on each Remittance Date, the Seller shall
be entitled to funds from the Custodial Account for the following purposes:
(i) to pay to itself the Servicing Fee;
(ii) to reimburse the Seller for unreimbursed Servicing Advances
(except to the extent reimbursed pursuant to Section 2.07), any accrued
but unpaid Servicing Fees and for unreimbursed advances of Seller funds
made pursuant to Sections 2.16 or 3.03, the Seller's right to reimburse
itself pursuant to this subclause (ii) with respect to any Mortgage Loan
being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the
Seller from the Mortgagor or otherwise relating to the Mortgage Loan, it
being understood that, in the case of any such reimbursement, the Seller's
right thereto shall be prior to the rights of the Purchaser, except that
where the Seller is required to purchase a Mortgage Loan pursuant to
Section 4.02 of this Agreement, the Seller's right to such reimbursement
shall be subsequent to the payment to the Purchaser of the Repurchase
Price pursuant to such sections and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loan;
(iii) to pay the Seller any interest earned on funds deposited in
the Custodial Account (all such interest to be paid monthly not later than
each Remittance Date);
(iv) to clear and terminate the Custodial Account upon the
termination of this Agreement; and
(v) to reimburse itself for advances of the Seller's funds made
pursuant to Section 3.03, the Seller's right to reimburse itself pursuant
to this subclause (v) being limited to amounts received on the related
Mortgage Loan which represent late payments of principal and/or interest
respecting which any such advance was made, it being understood that, in
the case of any such reimbursement, the Seller's right thereto shall be
prior to the rights of Purchaser, except that, where the Seller is
required to repurchase a Mortgage Loan pursuant to Section 9 of the
Purchase Agreement or Section 4.02 of this Agreement, the Seller's right
to such reimbursement shall be subsequent to the payment to the Purchaser
of the Repurchase Price pursuant to such sections and all other amounts
required to be paid to the Purchaser with respect to such Mortgage Loan.
Section 2.06 Establishment of and Deposits to Escrow Account.
The Seller shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more Escrow Accounts, in the form of time deposit or demand accounts, titled,
"IndyMac Bank, F.S.B., in trust for Barclays Bank PLC as Purchaser of Mortgage
Loans." The Seller and the Purchaser intend that the Escrow Account be a special
deposit account. The Escrow Account shall be established with a Qualified
Depository, in a manner which shall provide maximum available insurance
thereunder. Funds deposited in the Escrow Accounts may be drawn on by the Seller
in accordance with Section 2.07. The creation of any Escrow Account shall be
evidenced by a certification in the form of Exhibit 4 hereto, in the case of an
account established with the Seller, or by a letter agreement in the form of
Exhibit 5 hereto, in the case of an account held by a depository other than the
Seller. A copy of such certification shall be furnished to the Purchaser and,
upon request, to any subsequent Purchaser.
The Seller shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property.
The Seller shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 2.07. The Seller shall be entitled to retain any interest paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law or the applicable mortgage loan
documents to be paid to the Mortgagor. To the extent required by law, the Seller
shall pay from its own funds interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section 2.07 Permitted Withdrawals from Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Seller only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Seller for any Servicing Advance made by the
Seller pursuant to Section 2.08 (except with respect to any expenses
incurred in procuring or transferring Tax Service Contracts) with respect
to a related Mortgage Loan, but only from amounts received on the related
Mortgage Loan which represent late collections of Escrow Payments
thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan or
applicable federal or state law or judicial or administrative ruling;
(iv) for transfer to the Custodial Account and application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of
the related Mortgage and Mortgage Note;
(v) for application to restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 2.14;
(vi) to pay to the Seller, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
and
(vii) to clear and terminate the Escrow Account on the termination
of this Agreement.
Section 2.08 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Seller shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien upon
the Mortgaged Property and the status of fire and hazard insurance coverage and
shall obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date, employing for such purpose deposits of
the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Seller in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. To the extent that a Mortgage does not provide
for Escrow Payments, the Seller shall determine whether any such payments are
made by the Mortgagor at the time they first become due. The Seller assumes full
responsibility for the timely payment of all such bills and shall effect timely
payment of all such charges irrespective of each Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments, and the
Seller shall make Servicing Advances to effect such payments within such time
period as will avoid the loss of the related Mortgaged Property by foreclosure
of a tax or other lien.
Section 2.09 Protection of Accounts.
The Seller may transfer the Escrow Account to a different Qualified
Depository from time to time. Such transfer shall be made only upon obtaining
the prior written consent of the Purchaser, which consent shall not be withheld
unreasonably.
The Seller shall bear any expenses, losses or damages sustained by
the Purchaser because the Escrow Account are not demand deposit accounts.
Section 2.10 Maintenance of Hazard Insurance.
The Seller shall cause to be maintained for each Mortgage Loan,
hazard insurance such that all buildings upon the Mortgaged Property are insured
by a generally acceptable insurer rated A:VI or better in the current Best's
against loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located that conforms to
the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
If required by the National Flood Insurance Act of 1968, as amended,
each Mortgage Loan is, and shall continue to be, covered by a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration as in effect with a generally acceptable insurance
carrier rated A:VI or better in Best's in an amount representing coverage not
less than the lesser of (i) the aggregate unpaid Stated Principal Balance of the
related Mortgage Loan and of any mortgage loan senior to such Mortgage Loan,
(ii) the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended (regardless of whether the area in which such
Mortgaged Property is located is participating in such program), and (iii) the
full replacement value of the improvements which are part of such Mortgaged
Property. If a Mortgaged Property is located in a special flood hazard area and
is not covered by flood insurance or is covered in an amount less than the
amount required by the National Flood Insurance Act of 1968, as amended, the
Seller shall notify the related Mortgagor that the Mortgagor must obtain such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within forty five (45) days after such notification,
the Seller shall immediately force place the required flood insurance on the
Mortgagor's behalf.
If a Mortgage is secured by a unit in a condominium project, the
Seller shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current ▇▇▇▇▇▇ Mae requirements, and secure from the
owner's association its agreement to notify the Seller promptly of any change in
the insurance coverage or of any condemnation or casualty loss that may have a
material effect on the value of the Mortgaged Property as security.
The Seller shall cause to be maintained on each Mortgaged Property
such other or additional insurance as may be required pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance, or pursuant to the requirements of any
private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
In the event that the Purchaser or the Seller shall determine that
the Mortgaged Property should be insured against loss or damage by hazards and
risks not covered by the insurance required to be maintained by the Mortgagor
pursuant to the terms of the Mortgage, the Seller shall communicate and consult
with the Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property.
All policies required hereunder shall name the Seller and its
successors and assigns as a mortgagee and loss payee and shall be endorsed with
non contributory standard or New York mortgagee clauses which shall provide for
at least 30 days prior written notice of any cancellation, reduction in amount
or material change in coverage.
The Seller shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Seller shall not accept any such insurance policies from insurance
companies unless such companies are rated A:VI or better in Best's and are
licensed to do business in the jurisdiction in which the Mortgaged Property is
located. The Seller shall determine that such policies provide sufficient risk
coverage and amounts as required pursuant to the ▇▇▇▇▇▇ ▇▇▇ Guides, that they
insure the property owner and that they properly describe the property address.
The Seller shall furnish to the Mortgagor a formal notice of expiration of any
such insurance in sufficient time for the Mortgagor to arrange for renewal
coverage by the expiration date; provided, however, that in the event that no
such notice is furnished by the Seller, the Seller shall ensure that replacement
insurance policies are in place in the required coverages and the Seller shall
be solely liable for any losses in the event coverage is not provided.
Pursuant to Section 2.04, any amounts collected by the Seller under
any such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Seller's normal servicing procedures as
specified in Section 2.14) shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 2.05.
Section 2.11 Maintenance of Mortgage Impairment Insurance.
In the event that the Seller shall obtain and maintain, at its own
expense, a blanket policy insuring against losses arising from fire and hazards
covered under extended coverage on all of the Mortgage Loans, then, to the
extent such policy provides coverage in an amount equal to the amount required
pursuant to Section 2.10 and otherwise complies with all other requirements of
Section 2.10, it shall conclusively be deemed to have satisfied its obligations
as set forth in Section 2.10. Any amounts collected by the Seller under any such
policy relating to a Mortgage Loan shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 2.05. Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
2.10, and there shall have been a loss which would have been covered by such
policy, the Seller shall deposit in the Custodial Account at the time of such
loss the amount not otherwise payable under the blanket policy because of such
deductible clause, such amount to be deposited from the Seller's funds, without
reimbursement therefor. Upon request of the Purchaser, the Seller shall cause to
be delivered to the Purchaser a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Purchaser.
Section 2.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Seller shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans. These policies shall insure the Seller against
losses resulting from dishonest or fraudulent acts committed by the Seller's
personnel, any employees of outside firms that provide data processing services
for the Seller, and temporary contract employees or student interns. The
Fidelity Bond shall also protect and insure the Seller against losses in
connection with the release or satisfaction of a Mortgage Loan without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 2.12 requiring such Fidelity Bond and Errors and Omissions
Insurance Policy shall diminish or relieve the Seller from its duties and
obligations as set forth in this Agreement. The minimum coverage under any such
Fidelity Bond and insurance policy shall be at least equal to the corresponding
amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ Servicing Guide or by ▇▇▇▇▇▇▇
Mac in the ▇▇▇▇▇▇▇ Mac Servicers' Guide or in an amount as may be permitted to
the Seller by express waiver of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Upon the request of
the Purchaser, the Seller shall cause to be delivered to the Purchaser a
certified true copy of such Fidelity Bond and Errors and Omissions Insurance
Policy and a statement from the surety and the insurer that such Fidelity Bond
and Errors and Omissions Insurance Policy shall in no event be terminated or
materially modified without 30 days' prior written notice to the Purchaser.
Section 2.13 Inspections.
The Seller shall inspect the Mortgaged Property as often as is
deemed necessary by the Seller to assure itself that the value of the Mortgaged
Property is being preserved. In addition, if any Mortgage Loan is more than 60
days delinquent, the Seller shall immediately inspect the Mortgaged Property and
shall conduct subsequent inspections in accordance with Accepted Servicing
Practices. The Seller shall keep a written report of each such inspection.
Section 2.14 Restoration of Mortgaged Property.
The Seller need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Accepted Servicing Practices and the terms of this
Agreement. At a minimum, the Seller shall comply with the following conditions
in connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
(i) the Seller shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with
respect thereto;
(ii) the Seller shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Seller shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Seller shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the Seller is
hereby empowered to endorse any loss draft issued in respect of such a
claim in the name of the Purchaser.
Section 2.15 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued in the name of the Seller or its designee, on behalf of the
Purchaser, or in the event the Purchaser or its designee is not authorized or
permitted to hold title to real property in the state where the REO Property is
located, or would be adversely affected under the "doing business" or tax laws
of such state by so holding title, the deed or certificate of sale shall be
issued in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Seller from any attorney duly licensed to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than the Seller shall acknowledge in writing
that such title is being held as nominee for the Seller, on behalf of the
Purchaser.
The Seller shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition and
sale. The Seller, either itself or through an agent selected by the Seller,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Seller shall attempt to sell the
same (and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as the Seller
deems to be in the best interest of the Purchaser. The Seller shall notify the
Purchaser from time to time as to the status of each REO Property.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held, the
Seller shall manage, conserve, protect and operate each REO Property in a manner
which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by such REMIC of any "income from non permitted assets" within the
meaning of Section 860(a)(2)(B) of the Code or any "net income from foreclosure
property" within the meaning of Section 860(a)(2)(B) of the Code.
The Seller shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within two
years after title has been taken to such REO Property, unless the Seller
determines, and gives an appropriate notice to the Purchaser to such effect,
that a longer period is necessary for the orderly liquidation of such REO
Property. If a period longer than two years is permitted under the foregoing
sentence and is necessary to sell any REO Property, (i) the Seller shall report
monthly to the Purchaser as to the progress being made in selling such REO
Property and (ii) if, with the written consent of the Purchaser, a purchase
money mortgage is taken in connection with such sale, such purchase money
mortgage shall name the Seller as mortgagee, and such purchase money mortgage
shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Seller and Purchaser shall be entered into
with respect to such purchase money mortgage.
The Seller shall also maintain on each REO Property fire and hazard
insurance with extended coverage in an amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the National
Flood Insurance Act of 1968, as amended, flood insurance in the amount required
in Section 2.10 hereof.
Each REO disposition shall be carried out by the Seller at such
price and upon such terms and conditions as the Seller reasonably determines to
be in the best interest of the Purchaser and provided the sales price and the
related terms and conditions are results of arm's-length negotiation. No REO
disposition shall be effected without the prior written consent of the
Purchaser. The proceeds of sale of the REO Property shall be promptly deposited
in the Custodial Account. As soon as practical thereafter the expenses of such
sale shall be paid and the Seller shall reimburse itself pursuant to Section
2.05 (ii) hereof, for any related unreimbursed Servicing Advances, unpaid
Servicing Fees and unreimbursed advances made pursuant to this Section, and on
the Remittance Date immediately following the Principal Prepayment Period in
which such sale proceeds are received, the net cash proceeds of such sale
remaining in the Custodial Account shall be distributed to the Purchaser;
provided that such distribution shall, in any event, be made within ninety (90)
days from and after the closing of the sale of such REO Property.
In addition to the Seller's obligations set forth in this Section
2.15, the Seller shall deliver written notice to the Purchaser whenever title to
any Mortgaged Property is acquired in foreclosure or by deed in lieu of
foreclosure together with a copy of the drive-by appraisal of the related
Mortgaged Property obtained by the Seller on or prior to the date of such
acquisition.
With respect to each REO Property, the Seller shall hold all funds
collected and received in connection with the operation of the REO Property in
the Custodial Account. The Seller shall cause to be deposited on a daily basis
upon the receipt thereof in each Custodial Account all revenues received with
respect to the conservation and disposition of the related REO Property.
Section 2.16 Permitted Withdrawals with Respect to REO Property.
For so long as the Seller is acting as servicer of any Mortgage Loan
relating to any REO Property, the Seller shall withdraw funds on deposit in the
Custodial Account with respect to each related REO Property necessary for the
proper operation, management and maintenance of the REO Property, including the
cost of maintaining any hazard insurance pursuant to Section 2.10 and the fees
of any managing agent acting on behalf of the Seller. The Seller shall make
monthly distributions on each Remittance Date to the Purchaser of the net cash
flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in Section 2.15 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section 2.17 Real Estate Owned Reports.
For so long as the Seller is acting as servicer of any Mortgage Loan
relating to any REO Property, the Seller shall furnish to the Purchaser on or
before the 15th Business Day of each month a statement in the form of Exhibit 6
hereto with respect to any REO Property covering the operation of such REO
Property for the previous month and the Seller's efforts in connection with the
sale of such REO Property and any rental of such REO Property incidental to the
sale thereof for the previous month. That statement shall be accompanied by such
other information as the Purchaser shall reasonably request.
Section 2.18 Liquidation Reports.
For so long as the Seller is acting as servicer of any Mortgage Loan
relating to any REO Property, upon the foreclosure sale of any Mortgaged
Property or the acquisition thereof by the Purchaser pursuant to a deed in lieu
of foreclosure, the Seller shall submit to the Purchaser a liquidation report in
the form of Exhibit 7 hereto with respect to such Mortgaged Property.
Section 2.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.
For so long as the Seller is acting as servicer of any Mortgage Loan
relating to any REO Property, following the foreclosure sale or abandonment of
any Mortgaged Property, the Seller shall report such foreclosure or abandonment
as required pursuant to Section 6050J of the Code or any successor provision
thereof.
Section 2.20 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Seller shall
adjust the Mortgage Interest Rate on the related Interest Rate Adjustment Date
and shall adjust the Monthly Payment accordingly in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note. If,
pursuant to the terms of the Mortgage Note, another index is selected for
determining the Mortgage Interest Rate, the same index will be used with respect
to each Mortgage Note which requires a new index to be selected, provided that
such selection does not conflict with the terms of the related Mortgage Note.
The Seller shall execute and deliver any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments. The
Seller shall promptly upon written request thereof, deliver to the Purchaser
such notifications and any additional applicable data regarding such adjustments
and the methods used to calculate and implement such adjustments. Upon the
discovery by the Seller, or any Purchaser that the Seller has failed to adjust a
Mortgage Interest Rate or a Monthly Payment pursuant to the terms of the related
Mortgage Note and Mortgage, the Seller shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss caused the
Purchaser thereby.
Section 2.21 Maintenance of PMI Policy; Claims.
With respect to each Mortgage Loan with a LTV in excess of 80%, the
Seller shall, without any cost to the Purchaser, maintain or cause the Mortgagor
to maintain in full force and effect a PMI Policy insuring that portion of the
Mortgage Loan in excess of 75% of value, and shall pay or shall cause the
Mortgagor to pay the premium thereon on a timely basis, until the LTV of such
Mortgage Loan is reduced to 80%. In the event that such PMI Policy shall be
terminated, the Seller shall obtain from another Qualified Insurer a comparable
replacement policy, with a total coverage equal to the remaining coverage of
such terminated PMI Policy. If the insurer shall cease to be a Qualified
Insurer, the Seller shall determine whether recoveries under the PMI Policy are
jeopardized for reasons related to the financial condition of such insurer, it
being understood that the Seller shall in no event have any responsibility or
liability for any failure to recover under the PMI Policy for such reason. If
the Seller determines that recoveries are so jeopardized, it shall notify the
Purchaser and the Mortgagor, if required, and obtain from another Qualified
Insurer a replacement insurance policy. The Seller shall not take any action
which would result in noncoverage under any applicable PMI Policy of any loss
which, but for the actions of the Seller, would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to be
entered into pursuant to Section 4.01, the Seller shall promptly notify the
insurer under the related PMI Policy, if any, of such assumption or substitution
of liability in accordance with the terms of such PMI Policy and shall take all
actions which may be required by such insurer as a condition to the continuation
of coverage under such PMI Policy. If such PMI Policy is terminated as a result
of such assumption or substitution of liability, the Seller shall obtain a
replacement PMI Policy as provided above.
In connection with its activities as servicer, the Seller agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy in a timely fashion in accordance with the terms of
such PMI Policy and, in this regard, to take such action as shall be necessary
to permit recovery under any PMI Policy respecting a defaulted Mortgage Loan.
Pursuant to Section 2.04, any amounts collected by the Seller under any PMI
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 2.05.
ARTICLE III
PAYMENTS TO PURCHASER
Section 3.01 Remittances.
On each Remittance Date the Seller shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the 10th day of the month in
which the Remittance Date occurs, except Principal Prepayments received on or
after the second day of the month in which the Remittance Date occurs which
shall be remitted to the Purchaser on the next following Remittance Date,
together with an amount representing compensating interest which, when added to
all amounts allocable to interest received in connection with such partial
Principal Prepayment equals thirty (30) days' interest at the Mortgage Interest
Rate net of the Servicing Fee on the amount of principal so prepaid (net of
charges against or withdrawals from the Custodial Account pursuant to Section
2.05), plus (b) all amounts, if any, which the Seller is obligated to distribute
pursuant to Section 3.03 and minus (c) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the first day of
the month of the Remittance Date, which amounts shall be remitted on the
Remittance Date next succeeding the Due Period for such amounts
With respect to any remittance received by the Purchaser after the
second Business Day following the Business Day on which such payment was due,
the Seller shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the Custodial
Account by the Seller on the date such late payment is made and shall cover the
period commencing with the day following such second Business Day and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Seller of any such interest shall
not be deemed an extension of time for payment or a waiver by the Purchaser of
any Event of Default.
Section 3.02 Statements to Purchaser.
Not later than on the tenth (10th) day of the month in which the
Remittance Date occurs, the Seller shall furnish to the Purchaser a monthly
remittance advice in hard copy or electronic format acceptable to the Purchaser,
in the form set forth as Exhibit 8 hereto (the "Monthly Remittance Advice"), as
to the accompanying remittance and the period ending on the tenth (10th) day of
the month in which the Remittance Date occurs and a copy of the bank statement
for the Custodial Account for the immediately preceding month.
In addition, the Seller shall furnish to Purchaser an individual
loan accounting report in hard copy or electronic format, as of the last
Business Day of each month, in the Purchaser's assigned loan number order to
document Mortgage Loan payment activity on an individual Mortgage Loan basis.
With respect to each month, the corresponding individual loan accounting report
shall be received by the Purchaser no later than the fifth Business Day of the
following month, which report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, along with a
detailed report of interest on principal prepayment amounts remitted in
accordance with Section 3.01);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest and assumption fees;
(iii) the amount of servicing compensation received by the Seller
during the prior distribution period;
(iv) the aggregate Stated Principal Balance of the Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Servicer during
the prior distribution period pursuant to Section 2.05 or 2.07; and
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90
days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired.
The Seller shall also provide a trial balance, sorted in Purchaser's
assigned loan number order, in the form of Exhibit 1 hereto, with each such
report.
In addition, not more than 60 days after the end of each calendar
year, commencing in 2007, the Seller shall furnish to each Person who was a
Purchaser of the Mortgage Loans at any time during such calendar year an annual
statement in accordance with the requirements of applicable federal income tax
law as to the aggregate of remittances for the applicable portion of such year.
Such obligation of the Seller shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the Seller
pursuant to any requirements of the Internal Revenue Code as from time to time
are in force.
The Seller shall prepare and file any and all tax returns,
information statements or other filings for the previous tax year and subsequent
tax years required to be delivered to any governmental taxing authority or to
the Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and the transactions contemplated hereby. In addition, the Seller shall provide
the Purchaser with such information concerning the Mortgage Loans as is
necessary for the Purchaser to prepare its federal income tax return as the
Purchaser may reasonably request from time to time and which may be reasonably
available to the Seller.
Section 3.03 Advances by Seller.
On the Business Day immediately preceding each Remittance Date, the
Seller shall deposit in the Custodial Account from its own funds an amount equal
to all Monthly Payments which were due on the Mortgage Loans during the
applicable Due Period and which were delinquent at the close of business on the
immediately preceding Determination Date or which were deferred pursuant to
Section 2.01. The Seller's obligation to make such advances as to any Mortgage
Loan will continue through the date of foreclosure sale or sale of any property
acquired through foreclosure or by deed in lieu of foreclosure, whichever is
later with respect to each of the Mortgage Loans or until the Seller deems such
an advance to be nonrecoverable. Except as otherwise provided herein, the Seller
shall be entitled to first priority reimbursement pursuant to Section 2.05
hereof for principal and interest advances and for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loan.
ARTICLE IV
GENERAL SERVICING PROCEDURES
Section 4.01 Transfers of Mortgaged Property.
Except as otherwise set forth herein, the Seller shall be required
to enforce any "due-on-sale" provision contained in any Mortgage or Mortgage
Note and to deny assumption by the person to whom the Mortgaged Property has
been or is about to be sold whether by absolute conveyance or by contract of
sale, and whether or not the Mortgagor remains liable on the Mortgage or the
Mortgage Note. When the Mortgaged Property has been conveyed by the Mortgagor,
the Seller shall, to the extent it has knowledge of such conveyance, exercise
its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that the Seller
shall not exercise such rights if prohibited by law from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related PMI Policy, if any.
If the Seller reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause, the Seller will enter into an assumption
agreement with the person to whom the Mortgaged Property has been conveyed or is
proposed to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. Where an assumption is allowed pursuant to
this Section 4.01, the Seller, with the prior written consent of the primary
mortgage insurer, if any, and to the extent required by the applicable insurance
agreement, is authorized to prepare substitution of liability agreement and any
other document required in connection therewith to be entered into by the
Purchaser and the person to whom the Mortgaged Property has been conveyed or is
to be proposed to be conveyed pursuant to which the original Mortgagor is
released from liability and such Person is substituted as Mortgagor and becomes
liable under the related Mortgage Note. Any such substitution of liability
agreement shall be in lieu of an assumption agreement. If an assumption fee is
collected by the Seller for entering into an assumption agreement, a portion of
such fee, up to an amount equal to one-half of one percent (0.5%) of the
outstanding principal balance of the related Mortgage Loan, will be retained by
the Seller as additional servicing compensation, and any portion thereof in
excess of one-half of one percent (0.5%) shall be deposited in the Custodial
Account for the benefit of the Purchaser. In connection with any such
assumption, neither the Mortgage Interest Rate borne by the related Mortgage
Note, the term of the Mortgage Loan nor the outstanding principal amount of the
Mortgage Loan shall be changed.
To the extent that any Mortgage Loan is assumable, the Seller shall
inquire diligently into the creditworthiness of the proposed transferee, and
shall use the Underwriting Guidelines for approving the credit of the proposed
transferee which are used by the Seller with respect to underwriting mortgage
loans of the same type as the Mortgage Loans. If the credit of the proposed
transferee does not meet such Underwriting Guidelines, the Seller diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section 4.02 Satisfaction of Mortgages and Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Seller of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Seller shall notify the Purchaser in the
Monthly Remittance Advice as provided in Section 3.02, and may request the
release of any Mortgage Loan Documents from the Purchaser in accordance with
this Section 4.02 hereof. Such Mortgage Note shall be held by the Seller, in
trust, for the purpose of canceling such Mortgage Note and delivering the
cancelled Mortgage Note to the Mortgagor in a timely manner as and to the extent
provided under applicable state law. If the Mortgage has been recorded in the
name of MERS or its designee, the Seller shall take all necessary action to
effect the release of the Mortgage Loan on the records of MERS.
If the Seller satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Seller otherwise prejudice any rights the Purchaser may have under the
mortgage instruments, upon written demand of the Purchaser, the Seller shall
purchase the related Mortgage Loan at the Repurchase Price by deposit thereof in
the Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Seller shall maintain a Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 2.12 insuring the Seller against any
loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Section 4.03 Servicing Compensation.
As consideration for servicing the Mortgage Loans hereunder, the
Seller shall withdraw the Servicing Fee with respect to each Mortgage Loan from
the Custodial Account pursuant to Section 2.05 hereof. Such Servicing Fee shall
be payable monthly, computed on the basis of the number of Mortgage Loans
subject to this Agreement. The Servicing Fee shall be pro-rated when servicing
is for less than one month. The obligation of the Purchaser to pay, and the
Seller's right to withdraw, the Servicing Fee is limited to, and the Servicing
Fee is payable solely from, the interest portion of such Monthly Payment
collected by the Seller, or as otherwise provided under Section 2.05. The Seller
recognizes that to the extent it does not recover all accrued but unpaid
Servicing Fees under Section 4.03, the Purchaser shall not have any liability
with respect to such shortfalls.
Additional servicing compensation in the form of Ancillary Income
shall be retained by the Seller to the extent not required to be deposited in
the Custodial Account. The Seller shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement thereof except as specifically provided for herein.
Section 4.04 Annual Statement as to Compliance.
To the extent not required by Section 13.04 hereof, the Seller shall
deliver to the Purchaser, (a) on or before March 10th each year beginning March
10, 2007, an Officer's Certificate, stating that (i) a review of the activities
of the Seller during the preceding calendar year and of performance under this
Agreement has been made under such officer's supervision, and (ii) the Seller
has complied fully with the provisions of Article II and Article IV and to the
best of such officer's knowledge, based on such review, the Seller has fulfilled
all its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and the action
being taken by the Seller to cure such default.
Section 4.05 Annual Independent Public Accountants' Servicing
Report.
To the extent not required by Section 13.05 hereof, as long as any
Mortgage Loans are being serviced hereunder, or were serviced during the prior
calendar year on or before March 10th of each year beginning March 10, 2007, the
Seller, at its expense, shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Purchaser to the effect that such firm has examined
certain documents and records relating to the servicing of the Mortgage Loans
and this Agreement and that such firm is of the opinion that the provisions of
Article II and Article III have been complied with, and that, on the basis of
such examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
therewith, except for such exceptions as such firm shall believe to be
immaterial.
Section 4.06 Right to Examine Seller Records.
The Purchaser shall have the right to examine and audit any and all
of the books, records, or other information of the Seller, whether held by the
Seller or by another on its behalf, with respect to or concerning this Agreement
or the Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice.
Section 4.07 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999.
With respect to each Mortgage Loan and the related Mortgagor, the
Seller shall comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 and all
applicable regulations promulgated thereunder, and shall provide all notices
required thereunder.
Section 4.08 Credit Reporting.
The Seller shall fully furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis. Additionally, the Seller will transmit
full-file credit reporting data for each Mortgage Loan pursuant to ▇▇▇▇▇▇ ▇▇▇
Guide Announcement 95-19 and that for each Mortgage Loan, the Seller agrees it
shall report one of the following statuses each month as follows: new
origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or
charged-off.
Section 4.09 Subservicing. The Seller shall not hire or otherwise
utilize a subservicer hereunder without the prior written consent of the
Purchaser and its designee. Any such subservicer must agree in writing to comply
with Sections 4.04, 4.05 and 12.12 (regarding the provision of Servicer
Information).
ARTICLE V
SELLER TO COOPERATE
Section 5.01 Provision of Information.
During the term of this Agreement, the Seller shall furnish to the
Purchaser such periodic, special, or other reports or information, whether or
not provided for herein, as shall be necessary, reasonable, or appropriate with
respect to the Purchaser or the purposes of this Agreement. All such reports or
information shall be provided by and in accordance with all reasonable
instructions and directions which the Purchaser may give.
The Seller shall execute and deliver all such instruments and take
all such action as the Purchaser may reasonably request from time to time, in
order to effectuate the purposes and to carry out the terms of this Agreement.
Section 5.02 Financial Statements; Servicing Facilities.
In connection with marketing the Mortgage Loans, the Purchaser may
make available to a prospective purchaser audited financial statements of the
corporate group that includes the Seller for the most recently completed five
fiscal years for which such statements are available, as well as a Consolidated
Statement of Condition at the end of the last two fiscal years covered by any
Consolidated Statement of Operations. The Seller also shall make available any
comparable interim statements to the extent any such statements have been
prepared by or on behalf of the corporate group that includes the Seller (and
are available upon request to members or stockholders of the corporate group
that includes the Seller or to the public at large). The Seller shall furnish
promptly to the Purchaser or a prospective purchaser copies of the statements
specified above.
The Seller shall make available to the Purchaser or any prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Seller or the
financial statements of the corporate group that includes the Seller, and to
permit any prospective purchaser to inspect the Seller's servicing facilities
for the purpose of satisfying such prospective purchaser that the Seller has the
ability to service the Mortgage Loans as provided in this Agreement.
ARTICLE VI
TERMINATION
Section 6.01 Agency Suspension.
Should the Seller at any time during the term of this Agreement have
its right to service temporarily or permanently suspended by ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac or otherwise cease to be an approved servicer of conventional
residential mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, then the Purchaser may
immediately terminate this Agreement and accelerate performance of the
provisions of the Purchase Agreement to require immediate transfer of the
Servicing Rights.
Section 6.02 Damages.
The Purchaser shall have the right at any time to seek and recover
from the Seller any damages or losses suffered by it as a result of any failure
by the Seller to observe or perform any duties, obligations, covenants or
agreements herein contained, or as a result of a party's failure to remain an
approved ▇▇▇▇▇▇ Mae mortgage servicer.
Section 6.03 Termination.
The respective obligations and responsibilities of the Seller shall
terminate upon: (i) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan serviced by the Seller
or the disposition of all REO Property serviced by the Seller and the remittance
of all funds due hereunder; or (ii) by mutual consent of the Seller and the
Purchaser in writing, unless earlier terminated pursuant to this Agreement.
Section 6.04 Termination without Cause.
The Purchaser may, at its sole option, terminate any rights the
Seller may have hereunder with respect to any or all of the Mortgage Loans,
without cause, upon written notice, provided that the Seller shall have an
additional period of not more than sixty (60) days from and after the date of
said notice from the Purchaser within which to effect the related transfer of
servicing. Any such notice of termination shall be in writing and delivered to
the Seller as provided in Section 12.01 of this Agreement. In the event of such
termination, the Seller shall be entitled to a termination fee, equal to 2% of
the then current aggregate unpaid principal balance of the related Mortgage
Loans.
ARTICLE VII
BOOKS AND RECORDS
Section 7.01 Possession of Servicing Files.
The contents of each Servicing File are and shall be held in trust
by the Seller for the benefit of the Purchaser as the owner thereof. The Seller
shall maintain in the Servicing File a copy of the contents of each Mortgage
File and the originals of the documents in each Mortgage File not delivered to
the Purchaser. The possession of the Servicing File by the Seller is at the will
of the Purchaser for the sole purpose of servicing the related Mortgage Loan,
pursuant to this Agreement, and such retention and possession by the Seller is
in its capacity as Servicer only and at the election of the Purchaser. The
Seller shall release its custody of the contents of any Servicing File only in
accordance with written instructions from the Purchaser, unless such release is
required as incidental to the Seller's servicing of the Mortgage Loans pursuant
to this Agreement, or is in connection with a repurchase of any Mortgage Loan
pursuant to Section 9 of the Purchase Agreement.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser or its designee, and shall deliver to the Purchaser
or its designee upon demand, evidence of compliance with all federal, state and
local laws, rules and regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac, including but not limited to documentation as to the method used in
determining the applicability of the provisions of the National Flood Insurance
Act of 1968, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project for approval by
▇▇▇▇▇▇ Mae and periodic inspection reports as required by Section 2.13.
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification.
The Seller agrees to indemnify and hold the Purchaser and any
successor servicer and their respective present and former directors, officers,
employees and agents harmless from any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses (including, without
limitation, any legal fees and expenses, judgments or expenses relating to such
liability, claim, loss or damage) and related costs, judgments, and any other
costs, fees and expenses that such parties may sustain in any way related to the
Seller's failure:
(a) to observe and perform any or all of Seller's duties,
obligations, covenants, agreements, warranties or representations contained in
this Agreement; including without limitation, Sections 4.04, 4.05 and 4.09; or
(b) to comply with all applicable requirements contained in this
Agreement with respect to the servicing of the Mortgage Loan and the transfer of
Servicing Rights.
The indemnification rights set forth in this Section 8.01 shall
survive the termination of this Agreement for any reason.
The Seller immediately shall notify the Purchaser if a claim is made
by a third party with respect to this Agreement. For purposes of this Section,
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement.
Promptly after receipt by an indemnified party under this Section
8.01 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 8.01, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party under this Section 8.01, except to the extent that it has been prejudiced
in any material respect, or from any liability which it may have, otherwise than
under this Section 8.01. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
or parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for expenses
incurred by the indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with one local counsel, if applicable)), (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
Section 8.02 Limitation on Liability of Seller and Others.
Neither the Seller nor any of the directors, officers, employees or
agents of the Seller shall be under any liability to the Purchaser for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment, provided, however, that
this provision shall not protect the Seller or any such person against any
breach of warranties or representations made herein, its own negligent actions,
or failure to perform its obligations in strict compliance with any standard of
care set forth in this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
The Seller and any director, officer, employee or agent of the Seller may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Seller
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement and which in its opinion may involve it in any
expense or liability, provided, however, that the Seller may, with the prior
written consent of the Purchaser, undertake any such action which it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto. In such event, the Seller shall be entitled to reimbursement
from the Purchaser of the reasonable legal expenses and costs of such action.
Section 8.03 Limitation on Resignation and Assignment by Seller.
The Purchaser has entered into this Agreement with the Seller and
subsequent purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Seller, and the representations as to the adequacy of
its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Seller shall not assign this Agreement or the servicing hereunder
or delegate its rights or duties hereunder or any portion hereof or sell or
otherwise dispose of all or substantially all of its property or assets without
the prior written consent of the Purchaser, which consent shall not be
unreasonably withheld by the Purchaser.
The Seller shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Seller and the Purchaser or upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Seller's responsibilities and obligations hereunder in the manner provided in
Section 8.06.
Without in any way limiting the generality of this Section 8.03, in
the event that the Seller either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder, except as provided
for herein, or any portion thereof or sell or otherwise dispose of all or
substantially all of its property or assets, without the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement upon notice given as set forth in Section 6.04, without any payment of
any penalty or damages and without any liability whatsoever to the Seller or any
third party.
Section 8.04 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the
Seller, to assign, in whole or in part, its interest under this Agreement with
respect to some or all of the Mortgage Loans, and designate any person to
exercise any rights of the Purchaser hereunder. There shall be no limitation on
the number of assignments or transfers allowable by the Purchaser with respect
to the Mortgage Loans and this Agreement. In the event the Purchaser assigns
this Agreement, and the assignee assumes any of the Purchaser's obligations
hereunder, the Seller acknowledges and agrees to look solely to such assignee,
and not to the Purchaser, for performance of the obligations so assumed and the
Purchaser shall be relieved from any liability to the Seller with respect
thereto. All references to the Purchaser in this Agreement shall be deemed to
include its assignee or designee with respect to such Mortgage Loans.
Section 8.05 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, 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, or any of the Mortgage Loans and to perform
its duties under this Agreement. Any Person into which the Seller may be merged
or consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller shall be a party, or any Person succeeding to
the business of the Seller, shall be the successor of the Seller hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person shall be an
institution whose deposits are insured by FDIC or a company whose business
includes the servicing of mortgage loans and shall have a tangible net worth not
less than $30,000,000.
Section 8.06. Successor to the Seller.
Prior to termination of Seller's responsibilities and duties under
this Agreement pursuant to Sections 2.15, 6.04, 8.03 or 11.01, the Purchaser
shall (i) succeed to and assume all of the Seller's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a successor having
a tangible net worth of not less than $30,000,000 and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Seller under this Agreement prior to the termination of Seller's
responsibilities, duties and liabilities under this Agreement. Any successor to
the Seller shall be a ▇▇▇▇▇▇ ▇▇▇- or ▇▇▇▇▇▇▇ Mac-approved servicer in good
standing. In connection with such appointment and assumption, the Purchaser may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree. In the event that the
Seller's duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Seller shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of Seller pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to Article X hereof this Section
and shall in no event relieve the Seller of the representations, warranties and
covenants made pursuant to and the remedies available to the Purchaser with
respect thereto, it being understood and agreed that the provisions of such
Article X shall be applicable to the Seller notwithstanding any such resignation
or termination of the Seller, or the termination of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Seller and to the Purchaser, an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Seller, with like effect as if originally named as a party to
this Agreement and the Custodial Agreement. Any termination of this Agreement
pursuant to Section 2.15, 6.04, 8.03 or 11.01 shall not affect any claims that
the Purchaser may have against the Seller arising prior to any such termination
or resignation.
The Seller shall timely deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the Seller shall account for
all funds. The Seller shall execute and deliver such instruments and do such
other things all as may reasonably be required to more fully and definitely vest
and confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Seller. The successor shall make arrangements
as it may deem appropriate to reimburse the Seller for amounts the Seller
actually expended pursuant to this Agreement which the successor is entitled to
retain hereunder and which would otherwise have been recovered by the Seller
pursuant to this Agreement but for the appointment of the successor servicer.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
As of each Closing Date, the Purchaser warrants and represents to,
and covenants and agrees with, the Seller as follows:
Section 9.01 Authority and Capacity.
The execution, delivery and performance by the Purchaser of this
Agreement has been duly and validly authorized by all necessary corporate
action. This Agreement constitutes a legal, valid and enforceable obligation of
the Purchaser.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF SELLER
As of each Closing Date, the Seller warrants and represents to, and
covenants and agrees with, the Purchaser as follows:
Section 10.01 Due Organization and Authority.
The Seller is a federal savings bank, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation and is
licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Seller, and in any
event the Seller is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the related Mortgage Loan in
accordance with the terms of this Agreement; the Seller has the full power and
authority to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement (including
all instruments or transfer to be delivered pursuant to this Agreement) by the
Seller and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Seller; and all requisite corporate action has
been taken by the Seller to make this Agreement valid and binding upon the
Seller in accordance with its terms;
Section 10.02 Ordinary Course of Business.
The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Seller.
Section 10.03 No Conflicts.
Neither the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Seller's charter, by-laws or other organizational documents or
any legal restriction or any agreement or instrument to which the Seller is now
a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Seller or its property
is subject, or impair the ability of the Purchaser to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans.
Section 10.04 Ability to Service.
The Seller is an approved servicer of conventional residential
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with the facilities, procedures,
and experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans. The Seller is in good standing to enforce
and sell mortgage loans to and service mortgage loans in the jurisdiction
wherein the Mortgaged Properties are located and for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac,
and no event has occurred, including but not limited to a change in insurance
coverage, which would make the Seller unable to comply with ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac eligibility requirements or which would require notification to
either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Section 10.05 Ability to Perform.
The Seller does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Agreement.
Section 10.06 No Litigation Pending.
There is no action, suit, proceeding or investigation pending or
threatened against the Seller, before any court, administrative agency or other
tribunal asserting the invalidity of this Agreement, seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Seller, or in any material impairment of the right or ability of
the Seller to carry on its business substantially as now conducted, or in any
material liability on the part of the Seller, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of the Seller contemplated
herein, or which would be likely to impair materially the ability of the Seller
to perform under the terms of this Agreement.
Section 10.07 No Consent Required.
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement or
the servicing of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the Closing Date.
Section 10.08 No Untrue Information.
Neither this Agreement nor any statement, report or other document
furnished or to be furnished by the Seller pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
statement of material fact or omits to state a material fact necessary to make
the statements contained therein not misleading.
Section 10.09 Reasonable Servicing Fee.
The Seller acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Seller, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement and the Purchase Agreement.
Section 10.10 Credit Reporting.
The Seller has caused to be fully furnished, in accordance with the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower credit
files to Equifax, Experian, and Trans Union Credit Information Company (three of
the credit repositories), on a monthly basis. This representation and warranty
is a Deemed Material and Adverse Representation.
Section 10.11 Mortgage Loans with Prepayment Premiums.
With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity,
notwithstanding any state or federal law to the contrary, the Seller shall not
impose such prepayment premium in any instance when the mortgage debt is
accelerated as the result of the related Mortgagor's default in making the
Mortgage Loan payments.
Section 10.12 Ability to Service.
The Seller is an approved seller/servicer of conventional
residential adjustable and fixed rate Mortgage Loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, with the facilities, procedures, and experienced personnel necessary for
the sound servicing of mortgage loans of the same type as the Mortgage Loans.
The Seller is duly qualified, licensed, registered and otherwise authorized
under all applicable federal, state and local laws, and regulations, if
applicable, meets the minimum capital requirements set forth by the OTS, the OCC
or the FDIC, and is in good standing to enforce, originate, sell mortgage loans
to, and service mortgage loans in the jurisdiction wherein the Mortgaged
Properties are located for either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no event has
occurred, including but not limited to a change in insurance coverage, which
would make the Seller unable to comply with either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
eligibility requirements or which would require notification to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac.
Section 10.13 Reasonable Servicing Fee.
The Seller acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Seller, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement and the Servicing Agreement.
ARTICLE XI
DEFAULT
Section 11.01 Events of Default.
The following shall constitute an Event of Default under this
Agreement on the part of the Seller:
(a) any failure by the Seller to remit to the Purchaser any payment
required to be made under the terms of this Agreement; or
(b) the failure by the Seller duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Seller set forth in this Agreement or in the Custodial Agreement which continues
unremedied for a period of 30 days (except that such number of days shall be
fifteen in the case of a failure to pay any premium for any insurance policy
required to be maintained under this Agreement and such number of days shall be
five in the case of a failure to deliver any reports required to be delivered to
the Purchaser hereunder); or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Seller and such
decree or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(d) the Seller shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Seller or of or relating to all or substantially all of its property; or
(e) the Seller shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) the Seller ceases to meet the qualifications of a ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac servicer; or
(g) the Seller attempts to assign its right to servicing
compensation hereunder or the Seller attempts, without the consent of the
Purchaser, to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof, except as
provided for herein; or
(h) the Seller fails to maintain its license to do business or
service residential mortgage loans in any jurisdiction where the Mortgaged
Properties are located.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatsoever rights the Purchaser may have
at law or equity to damages, including injunctive relief and specific
performance, the Purchaser, by notice in writing to the Seller, may terminate
without compensation all the rights and obligations of the Seller under this
Agreement and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Seller of such written notice, all authority and
power of the Seller under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the successor appointed
pursuant to Section 8.06. Upon written request from the Purchaser, the Seller
shall prepare, execute and deliver any and all documents and other instruments,
place in such successor's possession all Mortgage Files, and 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, at the
Seller's sole expense. The Seller agrees to cooperate with the Purchaser and
such successor in effecting the termination of the Seller's responsibilities and
rights hereunder, including, without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by the Seller to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Section 11.02 Waiver of Defaults.
The Purchaser may waive any default by the Seller in the performance
of its obligations hereunder and its consequences. Upon any such waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be given via e-mail, facsimile transmission or registered or
certified mail to the person at the address set forth below:
i. if to the Seller:
IndyMac Bank, F.S.B.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secondary Marketing - Transaction
Management
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
ii. if to the Purchaser:
Barclays Bank PLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
Barclays Bank PLC, as administrator
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 12.02 Waivers.
Either the Seller or the Purchaser may upon consent of all parties,
by written notice to the others:
(a) Waive compliance with any of the terms, conditions or covenants
required to be complied with by the others hereunder; and
(b) Waive or modify performance of any of the obligations of the
others hereunder.
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other subsequent
breach.
Section 12.03 Entire Agreement; Amendment.
This Agreement constitutes the entire agreement between the parties
with respect to servicing of the Mortgage Loans. This Agreement may be amended
and any provision hereof waived, but, only in writing signed by the party
against whom such enforcement is sought.
Section 12.04 Execution; Binding Effect.
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Sections 8.03 and 8.04, this
Agreement shall inure to the benefit of and be binding upon the Seller and the
Purchaser and their respective successors and assigns.
Section 12.05 Headings.
Headings of the Articles and Sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
Section 12.06 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties. The duties and
responsibilities of the Seller shall be rendered by it as an independent
contractor and not as an agent of the Purchaser. The Seller shall have full
control of all of its acts, doings, proceedings, relating to or requisite in
connection with the discharge of its duties and responsibilities under this
Agreement.
Section 12.07 Severability of Provisions.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 12.08 Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Purchaser or the Purchaser's designee, but in any event, at the
Seller's expense for a single recordation relating to each Assignment of
Mortgage in the event recordation is either necessary under applicable law or
requested by the Purchaser at its sole option.
Section 12.09 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are integral parts of this Agreement.
Section 12.10 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 12.11 No Solicitation.
From and after the Closing Date, the Seller agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
or affiliates, or by any independent contractors on the Seller's behalf, to
personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan for any purpose whatsoever, including to refinance a Mortgage
Loan, in whole or in part, without the prior written consent of the Purchaser.
It is understood and agreed that all rights and benefits relating to the
solicitation of any Mortgagors and the attendant rights, title and interest in
and to the list of such Mortgagors and data relating to their Mortgages
(including insurance renewal dates) shall be transferred to the Purchaser
pursuant hereto on the Closing Date and the Seller shall take no action to
undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that promotions undertaken by the Seller or any affiliate
of the Seller which are directed to the general public at large, including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 12.11.
Section 12.12 Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each, a "Reconstitution Date") at the Purchaser's sole option, the Purchaser
may effect a sale (each, a "Reconstitution") of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
(a) ▇▇▇▇▇▇ Mae under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each, a "▇▇▇▇▇▇ ▇▇▇ Transfer"); or
(b) ▇▇▇▇▇▇▇ Mac (the "▇▇▇▇▇▇▇ Mac Transfer"); or
(c) one or more third party purchasers in one or more Whole Loan
Transfers; or
(d) one or more trusts or other entities to be formed as part of one
or more Securitization Transactions.
The Seller agrees to execute (i) in connection with any Agency
Transfer, any and all pool purchase contracts, and/or agreements reasonably
acceptable to the Seller among the Purchaser, the Seller, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac (as the case may be) and any servicer, (ii) in connection with a Whole Loan
Transfer, a seller's warranties and servicing agreement or a participation and
servicing agreement in form and substance reasonably acceptable to the parties,
and (iii) in connection with a Securitization Transaction, a pooling and
servicing agreement in form and substance reasonably acceptable to the parties
(collectively, the agreements referred to herein are designated, the
"Reconstitution Agreements").
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser; (3) to restate
the representations and warranties set forth in Article X as of the
Reconstitution Date or make the representations and warranties set forth in the
related selling/servicing guide of the master servicer or issuer, as the case
may be, or such representations or warranties as may be required by any rating
agency or prospective purchaser of the related securities or such Mortgage Loans
in connection with such Reconstitution; (4) to service the Mortgage Loans on a
"scheduled/scheduled" basis; (5) to pay compensating interest on any Principal
Prepayment in an amount necessary to provide for thirty (30) days of interest on
the related Principal Prepayment; and (6) to make principal and interest
advances on the Mortgage Loans through the termination of foreclosure. In that
connection, the Seller shall provide to such master servicer or issuer, as the
case may be, and any other participants or purchasers in such Reconstitution:
(i) any and all information and appropriate verification of information which
may be reasonably available to the Seller or its affiliates, whether through
letters of its auditors and counsel or otherwise, as the Purchaser or any such
other participant shall request; (ii) such additional representations,
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller as are reasonably
believed necessary by the Purchaser or any such other participant; and (iii) to
execute, deliver and satisfy all conditions set forth in any indemnity agreement
required by the Purchaser or any such participant, including, without
limitation, an Indemnification and Contribution Agreement in substantially the
form attached hereto as Exhibit 9. Moreover, the Seller agrees to cooperate with
all reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser and each underwriter as placement agent participating in the
Reconstitution and each Person who controls the Purchaser or such affiliate and
their respective present and former 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 each of them may sustain arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the information provided by or on behalf of the Seller
regarding the Seller, the Seller's servicing practices or performance or the
Mortgage Loans set forth in any offering document prepared in connection with
any Reconstitution. For purposes of the previous sentence, "Purchaser" shall
mean the Person then acting as the Purchaser under this Agreement and any and
all Persons who previously were "Purchasers" under this Agreement.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute or
shall cause the Seller to execute each Assignment of Mortgage, track such
Assignments of Mortgage to ensure they have been recorded and deliver them as
required by the prospective purchaser or trustee, as applicable, upon the
Seller's receipt thereof. Additionally, the Seller shall prepare and execute or
shall cause the Seller to execute, at the direction of the Purchaser, any note
endorsement in connection with any and all seller/servicer agreements.
To the extent not required by Section 13.05 hereof, with respect to
any Mortgage Loans sold in a Securitization Transaction where the Seller is the
servicer, the Seller agrees that on or before March 10th of each year beginning
March 10, 2007, the Servicer shall deliver to the depositor, the master servicer
(if any) and the trustee for the securitization trust in the Securitization
Transaction, and their officers, directors and affiliates, a certification in
the form attached as Exhibit 11 hereto, executed by the senior officer in charge
of servicing at the Seller for use in connection with any Form 10-K to be filed
with the Securities and Exchange Commission with respect to the securitization
trust. The Seller shall indemnify and hold harmless the depositor, the master
servicer (if any) and the trustee, and their respective officers, directors and
affiliates, from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments and other costs and
expenses arising out of or based upon any breach of the Seller's obligations
under this paragraph or any material misstatement or omission, negligence, bad
faith or willful misconduct of the Seller in connection therewith. If the
indemnification provided for in the preceding sentence is unavailable or
insufficient to hold harmless any indemnified party, then the Seller agrees that
it shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities of such indemnified party
in such proportion as is appropriate to reflect the relative fault of such
indemnified party, on the one hand, and the Seller, on the other, in connection
with a breach of the Seller's obligations under this paragraph or any material
misstatement or omission, negligence, bad faith or willful misconduct of the
Seller in connection therewith.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and, if this Agreement
shall remain in effect with respect to the related Mortgage Loan Package, shall
continue to be serviced in accordance with the terms of this Agreement and the
Purchase Agreement and with respect thereto this Agreement shall remain in full
force and effect.
Section 12.13 Governing Law Jurisdiction; Consent to Service of
Process.
THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE SELLER
IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH
COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS
TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL
ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
Section 12.14 Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
ARTICLE XIII
COMPLIANCE WITH REGULATION AB PROVISIONS
Section 13.01 Intent of the Parties; Reasonableness. The Purchaser
and the Seller acknowledge and agree that the purpose of Article XIII of this
Agreement is to facilitate compliance by the Purchaser and any Depositor with
the provisions of Regulation AB and related rules and regulations of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act, the
Seller acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Seller acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable requests made by the
Purchaser or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Seller shall cooperate fully
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Seller any Subservicer and the Mortgage Loans, or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser or any
Depositor to be necessary in order to effect such compliance.
Section 13.02 Additional Representations and Warranties of the
Seller. (a) The Seller shall be deemed to represent to the Purchaser and to any
Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 13.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) the Seller is
not aware and has not received notice that any default, early amortization or
other performance triggering event has occurred as to any other securitization
due to any act or failure to act of the Seller; (ii) the Seller has not been
terminated as servicer in a residential mortgage loan securitization, either due
to a servicing default or to application of a servicing performance test or
trigger; (iii) no material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage loans involving
the Seller as servicer has been disclosed or reported by the Seller; (iv) no
material changes to the Seller's policies or procedures with respect to the
servicing function it will perform under this Agreement and any Reconstitution
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Seller's financial
condition that could have a material adverse effect on the performance by the
Seller of its servicing obligations under this Agreement or any Reconstitution
Agreement; (vi) there are no material legal or governmental proceedings pending
(or known to be contemplated) against the Seller or any Subservicer; and (vii)
there are no affiliations, relationships or transactions relating to the Seller
or any Subservicer with respect to any Securitization Transaction and any party
thereto identified by the related Depositor of a type described in Item 1119 of
Regulation AB.
(b) If so requested in writing by the Purchaser or any Depositor on
any date following the date on which information is first provided to the
Purchaser or any Depositor under Section 13.03, the Seller shall, within five
Business Days but in no event later than ten Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this Section or, if any such representation and
warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting party.
Section 13.03 Information to Be Provided by the Seller. In
connection with any Securitization Transaction the Seller shall (i) within five
Business Days but in no event later than ten Business Days following written
request by the Purchaser or any Depositor, provide to the Purchaser and such
Depositor (or cause each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (c) and (f) of this
Section, and (ii) as promptly as practicable following notice to or discovery by
the Seller, provide to the Purchaser and any Depositor (in writing and in form
and substance reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (d) of this Section.
(a) If so requested in writing by the Purchaser or any Depositor,
the Seller shall provide such information regarding each Subservicer, as is
reasonably requested for the purpose of compliance with Items 1103(a)(1), 1117
and 1119 of Regulation AB. Such information shall include, at a minimum so long
as required by Regulation AB:
(A) [Reserved];
(B) [Reserved];
(C) a description of any legal or governmental proceedings
pending (or known to be contemplated) against the Seller and each
Subservicer that would be material to securityholders; and
(D) a description of any affiliation or relationship between
the Seller, each Subservicer and any of the following parties to a
Securitization Transaction, as such parties are identified to the
Seller by the Purchaser or any Depositor in writing in advance of
such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor (as defined in Item 1101(k)
of Regulation AB);
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) [Reserved].
(c) If so requested in writing by the Purchaser or any Depositor,
the Seller shall provide such information regarding the Seller, as servicer of
the Mortgage Loans, and each Subservicer (each of the Seller and each
Subservicer, for purposes of this paragraph, a "Servicer"), as is requested for
the purpose of compliance with Item 1108 of Regulation AB. Such information
shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more
detailed discussion of the Servicer's experience in, and procedures
for, the servicing function it will perform under this Agreement and
any Reconstitution Agreements; information regarding the size,
composition and growth of the Servicer's portfolio of residential
mortgage loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be material,
in the good faith judgment of the Purchaser or any Depositor, to any
analysis of the servicing of the Mortgage Loans or the related asset
backed securities, as applicable, including, without limitation:
(1) whether any prior securitizations of mortgage loans
of a type similar to the Mortgage Loans involving the Servicer
have defaulted or experienced an early amortization or other
performance triggering event because of servicing during the
three year period immediately preceding the related
Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three
year period immediately preceding the related Securitization
Transaction;
(4) whether the Servicer has been terminated as servicer
in a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance
test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance
with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the three
year period immediately preceding the related Securitization
Transaction to the Servicer's policies or procedures with respect to
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to
the Mortgage Loans;
(D) information regarding the Servicer's financial condition,
to the extent that there is a material risk that an adverse
financial event or circumstance involving the Servicer could have a
material adverse effect on the performance by the Seller of its
servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three year period immediately
preceding the related Securitization Transaction, which may be
limited to a statement by an authorized officer of the Servicer to
the effect that the Servicer has made all advances required to be
made on residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and the reasons for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in
servicing loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts; and
(H) information as to how the Servicer defines or determines
delinquencies and charge offs, including the effect of any grace
period, re aging, restructuring, partial payments considered current
or other practices with respect to delinquency and loss experience.
(d) If so requested in writing by the Purchaser or any Depositor for
the purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset backed securities, the Seller shall (or shall
cause each Subservicer to) (i) notify the Purchaser and any Depositor in writing
of (A) any litigation or governmental proceedings pending against the Seller or
any Subservicer that would be material to securityholders and (B) any
affiliations or relationships that develop following the closing date of a
Securitization Transaction between the Seller or any Subservicer and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, but only to the extent that such affiliations or
relationships do not include the Purchaser, Depositor or any of the respective
affiliates of a party and (ii) provide to the Purchaser and any Depositor a
description of such proceedings, affiliations or relationships.
(e) As a condition to the succession to the Seller or any
Subservicer as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Seller or such
Subservicer may be merged or consolidated, or (ii) which may be appointed as a
successor to the Seller or any Subservicer, the Seller shall provide to the
Purchaser and any Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, (x) written notice to the Purchaser and
any Depositor of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Purchaser and such Depositor, all
information reasonably requested in writing by the Purchaser or any Depositor in
order to comply with its reporting obligation under Item 6.02 of Form 8 K with
respect to any class of asset backed securities.
(f) In addition to such information as the Seller, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, if so
requested in writing by the Purchaser or any Depositor, the Seller shall provide
such information regarding the performance or servicing of the Mortgage Loans as
is reasonably required by the Purchaser or any Depositor to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB and to permit the Purchaser or such Depositor to comply with the provisions
of Regulation AB relating to Static Pool Information regarding the performance
of the Mortgage Loans on the basis of the Purchaser's or such Depositor's
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB (including without limitation as to the format and content of
such Static Pool Information). Such information shall be provided concurrently
with the monthly reports otherwise required to be delivered by the Servicer
under this Agreement commencing with the first such report due in connection
with the applicable Securitization Transaction).
Section 13.04 Servicer Compliance Statement. On or before March 10
of each calendar year, commencing in 2007, the Seller shall deliver to the
Purchaser and any Depositor a statement of compliance addressed to the Purchaser
and such Depositor and signed by an authorized officer of the Seller, to the
effect that (i) a review of the Seller's activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under this Agreement and any applicable Reconstitution Agreement during such
period has been made under such officer's supervision, and (ii) to the best of
such officers' knowledge, based on such review, the Seller has fulfilled all of
its obligations under this Agreement and any applicable Reconstitution Agreement
in all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
Section 13.05 Report on Assessment of Compliance and Attestation.
(a) On or before March 10 of each calendar year, commencing in 2007, the Seller
shall:
(i) deliver to the Purchaser and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser and such Depositor;
provided, however, that such report may be in the form customarily
provided by the Seller, and need not be customized for the Purchaser, such
master servicer or such Depositor) regarding the Seller's assessment of
compliance with the Servicing Criteria during the immediately preceding
calendar year, as required under Rules 13a 18 and 15d 18 of the Exchange
Act and Item 1122 of Regulation AB. Such report shall be addressed to the
Purchaser and such Depositor and signed by an authorized officer of the
Seller, and shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 12 hereto delivered to
the Purchaser concurrently with the execution of this Agreement;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the Purchaser
and such Depositor that attests to, and reports on, the assessment of
compliance made by the Seller and delivered pursuant to the preceding
paragraph. Such 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;
(iii) cause each Subservicer, and each Subcontractor determined by
the Company pursuant to Section 13.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Purchaser and any Depositor an assessment of compliance and
accountants' attestation as and when provided in paragraphs (a) and (b) of
this Section; and
(iv) deliver to the Purchaser, any Depositor and any other Person
that will be responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a 14(d) and 15d 14(d) under the
Exchange Act (pursuant to Section 302 of the Sarbanes Oxley Act of 2002)
on behalf of an asset backed issuer with respect to a Securitization
Transaction a certification in the form attached hereto as Exhibit 11.
The Seller acknowledges that the parties identified in clause
(a)(iv) above may rely on the certification provided by the Seller pursuant to
such clause in signing a Sarbanes Certification and filing such with the
Commission. Neither the Purchaser nor any Depositor will request delivery of a
certification under clause (a)(iv) above unless a Depositor is required under
the Exchange Act to file an annual report on Form 10-K with respect to an
issuing entity whose asset pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer pursuant
to Section 13.05(a)(i) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit 10 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant to
Section 13.05(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Seller pursuant to Section 13.06.
Section 13.06 Use of Subservicers and Subcontractors. The Seller
shall not hire or otherwise utilize the services of any Subservicer to fulfill
any of the obligations of the Seller as servicer under this Agreement or any
Reconstitution Agreement unless the Seller complies with the provisions of
paragraph (a) of this Section. The Seller shall not hire or otherwise utilize
the services of any Subcontractor, and shall not permit any Subservicer to hire
or otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (b) of
this Section.
(a) The Seller shall not hire or otherwise utilize the services of
any Subservicer with respect to the Mortgage Loans without giving the Purchaser
or its designee fifteen (15) calendar days' advance written notice of the
effective date of such hiring or utilization of a Subservicer, followed by
written confirmation of such hiring or utilization of a Subservicer on the
effective date of such engagement and indicating the circumstances surrounding
such hiring or utilization. Any notices required by this Section 13.06(a) shall
be sent via telecopier or certified or registered mail to the addresses set
forth below: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Barclays Bank PLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ and emailed to:
▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇, Email: ▇▇▇▇▇▇▇.gambro ▇▇▇.▇▇▇ (or such other address as
such Person may otherwise specify to Seller) to seek the consent of the
Purchaser or any Depositor to the utilization of any Subservicer. The Seller
shall cause any Subservicer used by the Seller (or by any Subservicer) for the
benefit of the Purchaser and any Depositor to comply with the provisions of this
Section and with Sections 13.02, 13.03(c) and (e), 13.04, 13.05 and 13.07 of
this Agreement to the same extent as if such Subservicer were the Seller, and to
provide the information required with respect to such Subservicer under Section
13.03(d) of this Agreement. The Seller shall be responsible for obtaining from
each Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
13.04, any assessment of compliance and attestation required to be delivered by
such Subservicer under Section 13.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 13.05 as and when required to be delivered.
(b) It shall not be necessary for the Seller to seek the consent of
the Purchaser or any Depositor to the utilization of any Subcontractor. The
Seller shall promptly upon request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as a master servicer or administrator) a
written description (in form and substance satisfactory to the Purchaser and
such Depositor) of the role and function of each Subcontractor utilized by the
Seller or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause (ii)
of this paragraph.
As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor to
comply with the provisions of Sections 13.05 and 13.07 of this Agreement to the
same extent as if such Subcontractor were the Seller. The Seller shall be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 13.05, in each case
as and when required to be delivered.
Section 13.07 Indemnification; Remedies. (a) The Seller shall
indemnify the Purchaser, each affiliate of the Purchaser, and each of the
following parties participating in a Securitization Transaction: each sponsor
and issuing entity; each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a 14(d) or Rule 15d 14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter, placement
agent or initial purchaser, each Person who controls any of such parties or the
Depositor (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act); and the respective present and former directors, officers,
employees and agents of each of the foregoing and of the Depositor, 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 arising out of
or based upon:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided in written or electronic form under this
Article XIII by or on behalf of the Seller, or provided under this Article
XIII by or on behalf of any Subservicer or Subcontractor (collectively,
the "Servicer Information"), or (B) the omission or alleged omission to
state in the Servicer Information a material fact required to be stated in
the Servicer Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this
paragraph shall be construed solely by reference to the Servicer
Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the
Servicer Information or any portion thereof is presented together with or
separately from such other information;
(ii) any failure by the Seller, any Subservicer or any Subcontractor
to deliver any information, report, certification, accountants' letter or
other material when and as required under this Article XIII, including any
failure by the Seller to identify pursuant to Section 13.06(b) any
Subcontractor "participating in the servicing function" within the meaning
of Item 1122 of Regulation AB; or
(iii) any breach by the Seller of a representation or warranty set
forth in Section 13.02(a) or in a writing furnished pursuant to Section
13.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Seller of a representation or
warranty in a writing furnished pursuant to Section 13.02(b) to the extent
made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a 14(d) or Rule 15d 14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Interim
Service, any Subservicer or any Subcontractor.
(b) (i) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report, certification, accountants'
letter or other material when and as required under this Article XIII or under
Section 34 of the Purchase Agreement, or any breach by the Seller of a
representation or warranty set forth in Section 13.02(a) or in a writing
furnished pursuant to Section 13.02(b) or any breach by the Seller of a
representation or warranty set forth in Section 34.02(a) of the Purchase
Agreement or in a writing furnished pursuant to Section 34.02(b) of the Purchase
Agreement and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by such
closing date, or any breach by the Seller of a representation or warranty in a
writing furnished pursuant to Section 13.02(b) or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Section 34.02(b)
of the Purchase Agreement to the extent made as of a date subsequent to such
closing date, shall, except as provided in clause (ii) of this paragraph,
immediately and automatically, without notice or grace period, constitute an
Event of Default with respect to the Seller under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Seller; provided that to the extent that any provision of
this Agreement and/or any applicable Reconstitution Agreement expressly provides
for the survival of certain rights or obligations following termination of the
Seller as servicer, such provision shall be given effect.
(ii) Any failure by the Seller, any Subservicer or any Subcontractor
to deliver any information, report, certification or accountants' letter
when and as required under Section 13.04 or 13.05, including (except as
provided below) any failure by the Seller to identify pursuant to Section
13.06(b) any Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such information,
report, certification or accountants' letter was required to be delivered
shall constitute an Event of Default with respect to the Seller under this
Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser or Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Seller as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any
compensation to the Seller; provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Seller as servicer, such provision shall be given
effect.
Neither the Purchaser nor any Depositor shall be entitled to
terminate the rights and obligations of the Seller pursuant to this subparagraph
(b)(ii) if a failure of the Seller to identify a Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
(iii) The Seller shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor,
as applicable, for all reasonable expenses incurred by the Purchaser (or
such designee) or such Depositor, as such are incurred, in connection with
the termination of the Seller as servicer and the transfer of servicing of
the Mortgage Loans to a successor servicer. The provisions of this
paragraph shall not limit whatever rights the Purchaser or any Depositor
may have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such
as an action for damages, specific performance or injunctive relief.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date and year first above written.
BARCLAYS BANK PLC
By:____________________________________
Name:_______________________________
Title:______________________________
INDYMAC BANK, F.S.B.
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT 1
TRIAL BALANCE
EXHIBIT 2
CUSTODIAL ACCOUNT CERTIFICATION
_______ __, ____
The Seller hereby certifies that it has established the account
described below as a Custodial Account pursuant to Section 2.04 of the Servicing
Agreement, dated as of October 1, 2006, between the Seller and Barclays Bank
PLC.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Servicing Agreement.
Title of Account: "IndyMac Bank, F.S.B., in trust for Barclays
Bank PLC as Purchaser of Mortgage Loans."
Account Number: _____________________________________
Address of office or branch of
the Seller at which Account is
maintained: _____________________________________
________________________________________
Seller
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
EXHIBIT 3
CUSTODIAL ACCOUNT LETTER AGREEMENT
_______ __, _____
To: _________________________________
_________________________________
_________________________________
(the "Depository")
As Seller under the Servicing Agreement, dated as of October 1,
2006, (the "Agreement"), between the Seller and Barclays Bank PLC we hereby
authorize and request you to establish an account, as a Custodial Account
pursuant to Section 2.04 of the Agreement, to be designated "IndyMac Bank,
F.S.B., in trust for Barclays Bank PLC as Purchaser of Mortgage Loans." All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Seller. You may refuse any deposit which would result in violation of the
requirement that the account be fully insured as described below. This letter is
submitted to you in duplicate. Please execute and return one original to us.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Agreement.
_______________________________________
Seller
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation.
_______________________________________
Depository
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
EXHIBIT 4
ESCROW ACCOUNT CERTIFICATION
_________ ___, ____
IndyMac Bank, F.S.B. hereby certifies that it has established the
account described below as an Escrow Account pursuant to Section 2.06 of the
Servicing Agreement, dated as of October 1, 2006, between the Seller and
Barclays Bank PLC.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Servicing Agreement.
Title of Account: "IndyMac Bank, F.S.B., in trust for Barclays
Bank PLC as Purchaser of Mortgage Loans."
Account Number: _____________________________________
Address of office or branch of
the Seller at which Account is
maintained: _____________________________________
________________________________________
Seller
By:______________________________________
Name:
Title:
EXHIBIT 5
ESCROW ACCOUNT LETTER AGREEMENT
_______ ___, ____
To: _________________________________
_________________________________
_________________________________
(the "Depository")
As Seller under the Servicing Agreement, dated as of October 1,
2006, (the "Agreement"), between the Seller and Barclays Bank PLC, we hereby
authorize and request you to establish an account, as an Escrow Account pursuant
to Section 2.06 of the Agreement, to be designated as "IndyMac Bank, F.S.B, in
trust for Barclays Bank PLC as Purchaser of Mortgage Loans." All deposits in the
account shall be subject to withdrawal therefrom by order signed by the Seller.
You may refuse any deposit which would result in violation of the requirement
that the account be fully insured as described below. This letter is submitted
to you in duplicate. Please execute and return one original to us.
All initially capitalized terms used herein shall have the meanings
ascribed to tem in the above-referenced Agreement.
_______________________________________
Seller
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number ______, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation.
_______________________________________
Depository
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
EXHIBIT 6
FORM OF MONTHLY REO PROPERTY STATEMENT
EXHIBIT 7
FORM OF LIQUIDATION REPORT
EXHIBIT 8
FORM OF MONTHLY REMITTANCE ADVICE
EXHIBIT 9
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"), dated
as of [_______], 200_, among [________________] (the "Depositor"), a
[______________] corporation (the "Depositor"), Barclays Bank PLC Barclays Bank
PLC, a public limited liability company, registered in England and Wales under
company number 1026167 ("Barclays") and IndyMac Bank, F.S.B., a federal savings
bank (the "Servicer" or the "Seller").
W I T N E S S E T H:
WHEREAS, the Depositor is acting as depositor and registrant with
respect to the Prospectus, dated [________________], and the Prospectus
Supplement to the Prospectus, [________________] (the "Prospectus Supplement"),
relating to [________________] Certificates (the "Certificates") to be issued
pursuant to a Pooling and Servicing Agreement, dated as of [________________]
(the "P&S"), among the Depositor, as depositor, [________________], as master
servicer (the "Master Servicer"), and [________________], as trustee (the
"Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S,
and [____________________] (the "Underwriter[s]") to enter into the Underwriting
Agreement, dated [____________________] (the "Underwriting Agreement") between
the Depositor and the Underwriter[s], Seller has agreed to provide for
indemnification and contribution on the terms and conditions hereinafter set
forth;
WHEREAS, Barclays purchased from Seller certain of the Mortgage
Loans underlying the Certificates (the "Mortgage Loans") pursuant to a Mortgage
Loan Purchase Agreement, dated as of October 1, 2006 (the "Purchase Agreement"),
by and between Barclays and the Seller; and
WHEREAS, pursuant to Section 13 of the Purchase Agreement, the
Seller has agreed to provide indemnification for certain information.
NOW THEREFORE, in consideration of the agreements contained herein,
and other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Barclays and the Servicer agree as follows:
1. Indemnification and Contribution.
(a) The Servicer agrees to indemnify and hold harmless the
Depositor, Barclays, the Underwriter[s] and their respective affiliates and
their respective present and former directors, officers, employees and agents
and each person, if any, who controls the Depositor, Barclays, the
Underwriter[s] or such affiliates within the meaning of either Section 15 of the
Securities Act of 1933, as amended (the "1933 Act"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the 1933 Act, the 1934 Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based in whole or in part upon any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
Supplement, ABS Computational and Informational Materials, or in the Free
Writing Prospectus, or any omission or alleged omission to state in the
Prospectus Supplement, ABS Computational and Informational Materials or in the
Free Writing Prospectus a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any such untrue statement or omission or
alleged untrue statement or alleged omission made in any amendment of or
supplement to the Prospectus Supplement, ABS Computational and Informational
Materials or the Free Writing Prospectus and agrees to reimburse the Depositor,
Barclays, the Underwriter[s] or such affiliates and each such officer, director,
employee, agent and controlling person promptly upon demand for any legal or
other expenses reasonably incurred by any of them in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that Servicer shall be liable in any such case only to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with the Servicer Information. The
foregoing indemnity agreement is
(b) in addition to any liability which Servicer may otherwise have
to the Depositor, Barclays, the Underwriter[s], their affiliates or any such
director, officer, employee, agent or controlling person of the Depositor,
Barclays, the Underwriter[s] or their respective affiliates.
As used herein:
"Servicer Information" means any information relating to Servicer,
the Mortgage Loans and/or the servicing guidelines relating to the Mortgage
Loans set forth in the Prospectus Supplement, the Offering Circular, ABS
Computational and Informational Materials or the Free Writing Prospectus [and
static pool information regarding mortgage loans originated or acquired by the
Servicer and included in the Prospectus Supplement, the Offering Circular or the
ABS Computational and Informational Materials or the Free Writing Prospectus
[incorporated by reference from the Servicer's website located at
______________].
"ABS Informational and Computational Material" means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as amended from time to time.
"Free Writing Prospectus" means any written communication that
constitutes a "free writing prospectus," as defined in Rule 405 under the 1933
Act.
(c) Promptly after receipt by any indemnified party under this
Section 1 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 1, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1 except to the extent it has
been materially prejudiced by such failure; and provided, further, however, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 1.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except as provided in
the following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 1 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations.
(e) The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Depositor, Barclays, the
Underwriter[s], their respective affiliates, directors, officers, employees or
agents or any person controlling the Depositor, Barclays, the Underwriter[s] or
any such affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates.
2. Representations and Warranties. Servicer represents and warrants
that:
(i) Servicer is validly existing and in good standing under the laws
of its jurisdiction of formation or incorporation, as applicable, and has
full power and authority to own its assets and to transact the business in
which it is currently engaged. Servicer is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
business transacted by it or any properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets or condition
(financial or otherwise) of Servicer;
(ii) Servicer is not required to obtain the consent of any other
person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity
or enforceability of this Agreement;
(iii) the execution, delivery and performance of this Agreement by
Servicer will not violate any provision of any existing law or regulation
or any order decree of any court applicable to Servicer or any provision
of the charter or bylaws of Servicer, or constitute a material breach of
any mortgage, indenture, contract or other agreement to which Servicer is
a party or by which it may be bound;
(iv) (a) no proceeding of or before any court, tribunal or
governmental body is currently pending or, (b) to the knowledge of
Servicer, threatened against Servicer or any of its properties or with
respect to this Agreement or the Offered Certificates, in either case,
which would have a material adverse effect on the business, properties,
assets or condition (financial or otherwise) of Servicer;
(v) Servicer has full power and authority to make, execute, deliver
and perform this Agreement and all of the transactions contemplated
hereunder, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of each of Servicer enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally, by the availability of equitable remedies,
and by limitations of public policy under applicable securities law as to
rights of indemnity and contribution thereunder; and
(vi) this Agreement has been duly executed and delivered by
Servicer.
3. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Servicer, will be mailed, delivered
or telegraphed and confirmed to IndyMac Bank, F.S.B., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if sent to Barclays, will be mailed,
delivered or telegraphed and confirmed to Barclays Bank PLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice President; if to the Depositor, will
be mailed, delivered or telegraphed and confirmed to [____________________]; or
if to the Underwriter[s], will be mailed, delivered or telegraphed and confirmed
to [_____________________].
4. Miscellaneous. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without giving effect to
the conflict of laws provisions thereof. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their successors and
assigns and the controlling persons referred to herein, and no other person
shall have any right or obligation hereunder. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. This Agreement may be
executed in counterparts, each of which when so executed and delivered shall be
considered an original, and all such counterparts shall constitute one and the
same instrument. Capitalized terms used but not defined herein shall have the
meanings provided in the P&S.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, this
__th day of [_____________].
[DEPOSITOR]
By:____________________________________
Name:
Title:
BARCLAYS BANK PLC
By:____________________________________
Name:
Title:
INDYMAC BANK, F.S.B.
By:____________________________________
Name:
Title:
EXHIBIT 10
[RESERVED]
EXHIBIT 11
ANNUAL CERTIFICATION
Re: The [__] agreement dated as of [__], 200[_] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________ of
IndyMac Bank, F.S.B. (the "Company"), certify to Barclays Bank PLC, [the
Depositor], and the [Master Servicer] [Securities Administrator] [Trustee], and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
First, 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 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 the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the "Company Servicing Information");
Second, 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;
Third, 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] [Master Servicer] [Securities
Administrator] [Trustee];
Fourth, I am responsible for reviewing the activities performed by
the Company as servicer under 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
Fifth, The Compliance Statement required to be delivered by the
Company pursuant to the Agreement, and 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] [Master Servicer]. Any material instances of
noncompliance described in such reports have been disclosed to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the Servicing Criteria has been disclosed in such reports.
EXHIBIT 12
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Seller]
[Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
Applicable
Servicing Criteria
Servicing Criteria
----------------------------------------------------------------------------------------------------------
Reference 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.
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 maintained as
required by the transaction agreements or related mortgage loan
documents.
1122(d)(4)(ii) Mortgage loan 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.
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.
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.
EXHIBIT 10.4
SERVICING AGREEMENT
between
COUNTRYWIDE HOME LOANS INC.
(Countrywide)
and
BARCLAYS BANK PLC
(Purchaser)
Dated as of August 30th, 2006
Conventional Residential Mortgage Loans
PRELIMINARY STATEMENT
ARTICLE I. DEFINITIONS
ARTICLE II.
Section 2.01 Representations and Warranties Respecting Countrywide....................
ARTICLE III. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Countrywide to Act as Servicer...........................................
Section 3.02 Collection of Mortgage Loan Payments.....................................
Section 3.03 Realization Upon Defaulted Mortgage Loans................................
Section 3.04 Establishment of Custodial Accounts; Deposits in Custodial Accounts......
Section 3.05 Permitted Withdrawals From the Custodial Account.........................
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow Accounts............
Section 3.07 Permitted Withdrawals From Escrow Account................................
Section 3.08 Transfer of Accounts.....................................................
Section 3.09 Payment of Taxes, Insurance and Other Charges; Maintenance of PMI
Policies; Collections Thereunder................................................
Section 3.10 Maintenance of Hazard Insurance..........................................
Section 3.11 [Reserved]...............................................................
Section 3.12 Fidelity Bond; Errors and Omissions Insurance............................
Section 3.13 Title, Management and Disposition of REO Property........................
Section 3.14 Notification of Adjustments..............................................
Section 3.15 Notification of Maturity Date............................................
Section 3.16 Assumption Agreements....................................................
Section 3.17 Satisfaction of Mortgages and Release of Collateral Files................
Section 3.18 Servicing Compensation...................................................
Section 3.19 Restoration of Mortgaged Property........................................
Section 3.20 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999...........................
ARTICLE IV. PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 4.01 Distributions............................................................
Section 4.02 Periodic Reports to the Purchaser........................................
Section 4.03 Monthly Advances by Countrywide..........................................
Section 4.04 Annual Statement as to Compliance........................................
Section 4.05 Annual Independent Certified Public Accountants' Servicing Report........
Section 4.06 Purchaser's Access to Countrywide's Records..............................
ARTICLE V.
Section 5.01 Indemnification by Countrywide...........................................
Section 5.02 Merger or Consolidation of Countrywide...................................
Section 5.03 Limitation on Liability of Countrywide and Others........................
Section 5.04 No Transfer of Servicing.................................................
Section 5.05 Subservicing.............................................................
ARTICLE VI. TERMINATION OF COUNTRYWIDE AS SERVICER
Section 6.01 Termination Due to an Event of Default...................................
Section 6.02 Termination by Other Means...............................................
ARTICLE VII. MISCELLANEOUS
Section 7.01 Notices..................................................................
Section 7.02 Exhibits.................................................................
Section 7.03 General Interpretive Principles..........................................
Section 7.04 Reproduction of Documents................................................
Section 7.05 Further Agreements.......................................................
Section 7.06 Assignment of Mortgage Loans by the Purchaser; Pass-Through
Transfers.......................................................................
Section 7.07 Conflicts between Transaction Documents..................................
Section 7.08 Governing Law............................................................
Section 7.09 Severability Clause......................................................
Section 7.10 Successors and Assigns...................................................
Section 7.11 Confidentiality..........................................................
Section 7.12 Entire Agreement.........................................................
Section 7.13 Counterparts.............................................................
Section 7.14 Waivers..................................................................
Section 7.15 Waiver of Trial by Jury..................................................
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement") dated as of August 30th, 2006, is by
and between COUNTRYWIDE HOME LOANS INC., in its capacity as servicer
("Countrywide"), and Barclays Bank PLC, and its permitted successors and
assigns, as Purchaser (the "Purchaser").
PRELIMINARY STATEMENT
WHEREAS, the Purchaser and Countrywide have entered into that certain
Master Mortgage Loan Purchase Agreement dated as of August 30th, 2006 between
the Purchaser and Countrywide, as seller (the "Purchase Agreement"), pursuant to
which the Purchaser will purchase and Countrywide will sell from time to time,
certain Mortgage Loans (as hereinafter defined) identified in a Purchase
Confirmation;
WHEREAS, Countrywide is in the business of providing primary servicing
of mortgage loans and owns the right to service the Mortgage Loans listed on the
Mortgage Loan Schedule (as hereinafter defined);
WHEREAS, Countrywide has agreed to service the Mortgage Loans for the
Purchaser on the terms and conditions set forth herein; and
WHEREAS, Countrywide and the Purchaser desire to prescribe the terms and
conditions regarding the management, servicing, and control of such Mortgage
Loans.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of a similar type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Agency Transfer: A ▇▇▇▇▇▇ Mae Transfer or a ▇▇▇▇▇▇▇ Mac Transfer.
Agreement: This Servicing Agreement, including all exhibits and
supplements hereto, and all amendments hereof.
Assignment of Mortgage: 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
the sale of the Mortgage to the Purchaser.
Business Day: Any day other than (i) a Saturday or Sunday, or
(ii) a day on which banking and savings and loan institutions in either the
State of California or the State of Texas are authorized or obligated by law or
executive order to be closed.
Cash Liquidation: Recovery of all cash proceeds by Countrywide
with respect to the termination of any defaulted Mortgage Loan other than a
Mortgage Loan which became an REO Property, including all PMI Proceeds,
Government Insurance Proceeds, Other Insurance Proceeds, Liquidation Proceeds,
Condemnation Proceeds and other payments or recoveries whether made at one time
or over a period of time which Countrywide deems to be finally recoverable, in
connection with the sale or assignment of such Mortgage Loan, trustee's sale,
foreclosure sale or otherwise.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A of the Purchase Agreement.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Countrywide: Countrywide Home Loans, Inc., or any successor or
assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.04 herein, each of which shall be an Eligible Account.
Custodial Agreement: The agreement governing the retention of the
Collateral Files by the Custodian.
Custodian: ▇▇▇▇▇ Fargo Bank, N.A., its successor in interest or
assign, or such other custodian that may be designated by Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to an Agency.
Escrow Account: The separate trust account or accounts created
and maintained pursuant to Section 3.06 herein, each of which shall be an
Eligible Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.01 of this Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association or any
successor organization.
▇▇▇▇▇▇ Mae Transfer: Any sale or transfer of some or all of the
Mortgage Loans to ▇▇▇▇▇▇ ▇▇▇.
Fidelity Bond: A fidelity bond to be maintained by Countrywide
pursuant to Section 3.12 of this Agreement.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first
lien on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
▇▇▇▇▇▇▇ Mac Transfer: Any sale or transfer of some or all of the
Mortgage Loans to ▇▇▇▇▇▇▇ Mac under its Cash Purchase Program or MBS Program
(Special Servicing Option).
GNMA: The Government National Mortgage Association or any
successor organization.
Government Insurance Proceeds: With respect to each Government
Mortgage Loan, payments made pursuant to a MIC or LGC.
Government Mortgage Loan: A Mortgage Loan insured by the FHA or
guaranteed by the VA.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any
federal agency or official thereof which may from time to time succeed to the
functions thereof.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
LGC: A loan guarantee certificate issued by the VA.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds, proceeds of any REO Disposition or
otherwise, which represent late payments or collections of Monthly Payments due
but delinquent for a previous Due Period and not previously recovered.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds,
Government Insurance Proceeds, Condemnation Proceeds and Other Insurance
Proceeds, received by Countrywide in connection with the liquidation of a
defaulted Mortgage Loan through trustee's sale, foreclosure sale or otherwise,
other than amounts received following the acquisition of an REO Property
pursuant to Section 3.13 of this Agreement.
LPMI Fee: The portion of the Mortgage Interest Rate relating to
an LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MIC: A mortgage insurance certificate issued by HUD.
Monthly Advance: The advances made or required to be made by
Countrywide on any Remittance Date pursuant to this Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first lien, in the case of a First
Lien Mortgage Loan, or a second lien, in the case of a Second Lien Mortgage
Loan, on an unsubordinated estate in fee simple in real property securing the
Mortgage Note; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first lien, in the case of a
First Lien Mortgage Loan, or a second lien, in the case of a Second Lien
Mortgage Loan, upon a leasehold estate of the Mortgagor, as the case may be.
Mortgage Interest Rate: The annual rate at which interest accrues
on any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Government Insurance Proceeds (if applicable), Other Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage
Loan, the interest rate payable to the Purchaser on each Remittance Date which
shall equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee,
if applicable.
Mortgage Loan Schedule: With respect to each Mortgage Loan
Package, the schedule of Mortgage Loans included therein and made a part of the
related Purchase Confirmation, which schedule shall include, the following
information with respect to each Mortgage Loan: (i) Countrywide's loan number
identifying such Mortgage Loan; (ii) the Mortgage Interest Rate, less any LPMI
Fee, as of the Cut-off Date; (iii) with respect to any Adjustable Rate Mortgage
Loan, the Gross Margin, the Periodic Rate Cap, the Lifetime Rate Cap, the next
Interest Adjustment Date and whether such Adjustable Rate Mortgage Loan is a
Convertible Mortgage Loan, (iv) with respect to a LPMI Loan, the LPMI Fee, (v)
with respect to each First Lien Mortgage Loan, the LTV at origination and, with
respect to each Second Lien Mortgage Loan, the Combined LTV at origination; (vi)
the remaining term as of the Cut-off Date and the original term of such Mortgage
Loan, (vii) whether such Mortgage Loan is a First Lien Mortgage Loan or a Second
Lien Mortgage Loan (viii) any other information pertaining to such Mortgage Loan
as may be reasonably requested by the Purchaser, (ix) with respect to each
Option ARM Mortgage Loan, (a) the maximum negative amortization percentage, and
(b) the recast period, (x) name, address, city and ZIP Code of Mortgagor, (xi)
the Stated Principal Balance, (xii) appraisal amount, (xiii) purchase amount,
(xiv) loan amount, (xv) first Monthly Payment Due Date, (xvi) credit score,
(xvii) document type, (xviii) occupancy type, (xix) payment current through
date, (xx) Prepayment Penalty flag and term, and (xxi) interest-only term, if
applicable. The information set forth in the Mortgage Loan Schedule relating to
the Mortgage Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with respect
to any LPMI Loan, as applicable, is exclusive of the LPMI Fee.
Mortgage Note: The note or other evidence of the indebtedness of
a Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor three different payment options each month, which
include: (i) a minimum monthly payment option, (ii) an interest-only payment
option or (iii) a full principal and interest option which amortizes over 30
years or less.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage backed securities transaction.
Payment Adjustment Date: As to each Mortgage Loan, the date on
which an adjustment to the Monthly Payment on a Mortgage Note becomes effective.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance
relating to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Prepayment Interest Shortfall Amount: With respect to any
Remittance Date and Mortgage Loan that was subject to a Principal Prepayment in
full or in part during the related Principal Prepayment Period, which Principal
Prepayment was applied to such Mortgage Loan prior to such Mortgage Loan's Due
Date in such calendar month, the amount of interest (at the Mortgage Loan
Remittance Rate) that would have accrued on the amount of such Principal
Prepayment during the period commencing on the date as of which such Principal
Prepayment was applied to such Mortgage Loan and ending on the day immediately
preceding such Due Date, inclusive.
Prepayment Penalty: With respect to each Mortgage Loan, a
prepayment penalty, charge, premium or fee, if any, payable upon the Principal
Prepayment in full of such Mortgage Loan, as set forth in the related Mortgage
Note or Mortgage.
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any Prepayment Penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment Period: As to any Remittance Date, the
calendar month preceding the month of distribution.
Purchase Confirmation: A letter agreement, substantially in the
form of an exhibit to the Purchase Agreement, executed by Countrywide and the
Purchaser in connection with the purchase and sale of each Mortgage Loan
Package, which sets forth the terms relating thereto including a description of
the related Mortgage Loans (including the Mortgage Loan Schedule), the purchase
price for such Mortgage Loans, the Closing Date and the Servicing Fee Rate.
Purchaser: The Person identified as the "Purchaser" in the
preamble to this Agreement or its successor in interest or any successor or
assign to the Purchaser under this Agreement as herein provided. Any reference
to "Purchaser" as used herein shall be deemed to include any designee of the
Purchaser, so long as such designation was made in accordance with the
limitations set forth in Section 7.06 of this Agreement.
Qualified Insurer: An insurance company duly qualified as such
under the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in the related
mortgage loan purchase agreement; (v) shall be the same type of Mortgage Loan
(i.e., a Convertible Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution Agreements: The agreement or agreements entered
into by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Pass-Through Transfer or an Agency Transfer
pursuant to Section 7.06.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 7.06
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate. On such date, the Mortgage Loans transferred shall cease to be
covered by this Agreement and Countrywide's servicing responsibilities shall
cease under this Agreement with respect to the related transferred Mortgage
Loans.
Relief Act: The Servicemembers' Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of Subchapter M
of Chapter 1, Subtitle A, of the Code, and related provisions, and proposed,
temporary and final Treasury Regulations and any published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The eighteenth (18th) day of any month,
beginning with the month next following the month in which the related Cut-off
Date occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO
Property or the transfer of the management of such REO Property to the Purchaser
as set forth in Section 3.13 of this Agreement.
REO Property: A Mortgaged Property acquired by Countrywide on
behalf of the Purchaser as described in Section 3.13 of this Agreement.
Repurchase Price: With respect to any Mortgage Loan, a price
equal to (i) the Stated Principal Balance of the Mortgage Loan plus (ii)
interest on such Stated Principal Balance at the Mortgage Loan Remittance Rate
from the last date through which interest has been paid and distributed to the
Purchaser to the date of repurchase, less amounts received or advanced in
respect of such repurchased Mortgage Loan which such amounts are being held in
the Custodial Account for distribution in the month of repurchase.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second
lien on the related Mortgaged Property.
Servicing Advances: All customary, reasonable and necessary "out
of pocket" costs and expenses incurred in the performance by Countrywide of its
servicing obligations, including the cost of (i) the preservation, restoration
and protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of the
REO Property, (iv) with respect to Government Mortgage Loans, amounts advanced
to the Purchaser for which Countrywide may be entitled to receive reimbursement
from a government agency and (v) compliance with the obligations under this
Agreement including Section 3.09 hereof.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the annual fee the Purchaser shall pay to Countrywide, which shall, for a period
of one full month, be equal to one-twelfth of the product of (i) the Servicing
Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee
shall be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. Solely in the event Countrywide is terminated as servicer of the
Mortgage Loans, the Servicing Fee shall be prorated (based upon the number of
days of the related month Countrywide so acted as servicer relative to the total
number of days in that month) for each part thereof. The obligation of the
Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee is
payable solely from, the interest portion of such Monthly Payment collected by
Countrywide, or as otherwise provided herein. Subject to the foregoing, and with
respect to each Mortgage Loan, Countrywide shall be entitled to receive its
Servicing Fee through the disposition of any related REO Property and the
Servicing Fee payable with respect to any REO Property shall be based on the
Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate
per annum set forth in the applicable Trade Confirmation or Purchase
Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Servicing Officer: Any officer of Countrywide involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by Countrywide to
Purchaser upon request, as such list may from time to time be amended.
Stated Principal Balance: With respect to each Mortgage Loan as
of any date of determination: (i) the unpaid principal balance of the Mortgage
Loan at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form
of an exhibit attached to the Purchase Agreement executed by Countrywide and the
Purchaser prior to the applicable Closing Date confirming the terms of a
prospective purchase and sale of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, this Agreement
and the Purchase Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
VA: The Department of Veterans Affairs.
Whole Loan Transfer: The sale or transfer by the Purchaser of
some or all of the Mortgage Loans in a whole loan format.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan and the servicing of the Mortgage Loan in accordance with the terms of this
Agreement;
(b) Due Authority. Countrywide has the full power and authority
to (i) perform and enter into and consummate all transactions contemplated by
this Agreement and (ii) to service each Mortgage Loan. This Agreement has been
duly executed and delivered and constitutes the valid, legal, binding and
enforceable obligation of Countrywide, except as enforceability may be limited
by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors and (ii) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law. All requisite corporate action has been
taken by Countrywide to make this Agreement valid and binding upon Countrywide
in accordance with its terms;
(c) No Conflict. Neither the servicing of the Mortgage Loans for
the Purchaser, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of Countrywide's organizational documents or result in a material
breach of any legal restriction or any material agreement or instrument to which
Countrywide is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any material law, rule, regulation, order, judgment or decree
to which Countrywide or its property is subject;
(d) Approved Servicer. Countrywide is an approved servicer for
each Agency in good standing. No event has occurred, including a change in
insurance coverage, which would make Countrywide unable to comply with ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ Mac eligibility requirements;
(e) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the servicing of the Mortgage
Loans to the Purchaser or Countrywide's ability to perform its obligations under
this Agreement;
(f) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Countrywide, of or compliance by Countrywide with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date; and
(g) Reasonable Servicing Fee. Countrywide acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Countrywide, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement.
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Countrywide to Act as Servicer.
Countrywide shall service and administer Mortgage Loans sold
pursuant to this Agreement in accordance with the terms of this Agreement and
shall have full power and authority, acting alone, to do or cause to be done any
and all things, in connection with such servicing and administration, that
Countrywide may deem necessary or desirable and consistent with the terms of
this Agreement. In servicing and administering the Mortgage Loans, Countrywide
shall employ procedures in accordance with the customary and usual standards of
practice of prudent mortgage servicers. Notwithstanding anything to the contrary
contained herein, in servicing and administering Government Mortgage Loans,
Countrywide shall not take, or fail to take, any action that would result in the
denial of coverage under any LGC or MIC, as applicable. Without limiting the
generality of the foregoing, with respect to any Government Mortgage Loan,
Countrywide shall be permitted to deviate from the servicing practices set forth
herein if such deviation would be consistent with the servicing practices
employed in connection with any similar mortgage loan constituting a part of a
GNMA mortgage-backed security.
In accordance with the terms of the related mortgage loan
purchase agreement, Countrywide may waive, modify or vary any term of any
Mortgage Loan or consent to the postponement of strict compliance with any such
term or in any manner grant indulgence to any Mortgagor if in Countrywide's
reasonable and prudent determination such waiver, modification, postponement or
indulgence is not materially adverse to the Purchaser; provided, however, that
Countrywide shall not permit any modification with respect to any Mortgage Loan
that would decrease the Mortgage Interest Rate (other than by adjustments
required by the terms of the Mortgage Note), result in the denial of coverage
under a PMI Policy, LGC or MIC, reduce the outstanding principal amount (except
for actual payments of principal) forgive the payment of principal or interest,
or extend the final maturity date on such Mortgage Loan without the Purchaser's
consent. Countrywide may permit forbearance or allow for suspension of Monthly
Payments for up to one hundred and eighty (180) days if the Mortgagor is in
default or Countrywide determines in its reasonable discretion, that default is
imminent and if Countrywide determines that granting such forbearance or
suspension is in the best interest of the Purchaser. If any modification,
forbearance or suspension permitted hereunder allows the deferral of interest or
principal payments on any Mortgage Loan, Countrywide shall include in each
remittance for any month in which any such principal or interest payment has
been deferred (without giving effect to such modification, forbearance or
suspension) an amount equal to such month's principal and one (1) month's
interest at the Mortgage Loan Remittance Rate on the then unpaid principal
balance of the Mortgage Loan and shall be entitled to reimbursement for such
advances only to the same extent as for Monthly Advances made pursuant to
Section 4.03 of this Agreement. Without limiting the generality of the
foregoing, Countrywide shall continue, and is hereby authorized and empowered to
execute and deliver on behalf of itself and the Purchaser, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Property. If reasonably required by Countrywide, the
Purchaser shall furnish Countrywide with any powers of attorney and other
documents necessary or appropriate to enable Countrywide to carry out its
servicing and administrative duties under this Agreement.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, Countrywide shall not
take any action, cause the 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) materially and adversely affect the status
of the REMIC as a REMIC or (ii) result in the imposition of a tax upon the REMIC
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860(a)(2) of the Code and the tax on "contributions" to a REMIC set
forth in Section 860D of the Code) unless Countrywide has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not materially and adversely affect such REMIC
status or result in the imposition of any tax on the REMIC.
Section 3.02 Collection of Mortgage Loan Payments.
Countrywide shall make reasonable efforts, in accordance with the
customary and usual standards of practice of prudent mortgage servicers, to
collect all payments due under each Mortgage Loan to the extent such procedures
shall be consistent with this Agreement, the terms and provisions of any related
PMI Policy, MIC or LGC, and applicable law. Countrywide shall take special care
in ascertaining and estimating Escrow Payments in accordance with Accepted
Servicing Practices.
Section 3.03 Realization Upon Defaulted Mortgage Loans.
(a) Foreclosure. Countrywide shall use reasonable efforts to
foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments. Countrywide shall use reasonable efforts to realize upon defaulted
Mortgage Loans, in such manner as will maximize the receipt of principal and
interest by the Purchaser, taking into account, among other things, the timing
of foreclosure proceedings. The foregoing is subject to the provisions that, in
any case in which Mortgaged Property shall have suffered damage, Countrywide
shall not be required to expend its own funds toward the restoration of such
property unless it shall determine in its discretion (i) that such restoration
will increase the proceeds of liquidation of the related Mortgage Loan to the
Purchaser after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by Countrywide through PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds or Liquidation Proceeds from the
related Mortgaged Property. Countrywide shall notify the Purchaser in writing of
the commencement of foreclosure proceedings. Such notice may be contained in the
reports prepared by Countrywide and delivered to the Purchaser pursuant to the
terms and conditions of this Agreement. Countrywide shall be responsible for all
costs and expenses incurred by it in any foreclosure proceedings; provided,
however, that it shall be entitled to reimbursement thereof from proceeds from
the related Mortgaged Property.
Section 3.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts.
Countrywide shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one (1) or more
Custodial Accounts, in the form of time deposit or demand accounts and shall be
titled "[Countrywide] in trust for Barclays Bank PLC as Purchaser of Mortgage
Loans and various Mortgagors." Countrywide shall provide the Purchaser with
written evidence of the creation of such Custodial Account(s) within thirty (30)
days of the Initial Closing Date.
Countrywide shall deposit in the Custodial Account within two (2)
Business Days following receipt thereof, and retain therein, the following
payments and collections received or made by it subsequent to the Cut-off Date,
or received by it prior to the Cut-off Date but allocable to a period subsequent
thereto, other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date:
(a) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans,
adjusted to the Mortgage Loan Remittance Rate;
(c) all proceeds from a Cash Liquidation;
(d) all PMI Proceeds, Government Insurance Proceeds and Other
Insurance Proceeds, including amounts required to be deposited pursuant to
Sections 3.08 and 3.10 of this Agreement, other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Countrywide's normal
servicing procedures, the loan documents or applicable law;
(e) all Condemnation Proceeds affecting any Mortgaged Property
which are not released to the Mortgagor in accordance with Countrywide's normal
servicing procedures, the loan documents or applicable law;
(f) all Monthly Advances;
(g) all proceeds of any Mortgage Loan repurchased in accordance
with Section 3.03 or 3.04 of the Purchase Agreement, and any amount required to
be deposited by Countrywide in connection with any shortfall in principal amount
of the Qualified Substitute Mortgage Loans and the repurchased Mortgage Loans as
required pursuant to Section 3.03 of the Purchase Agreement;
(h) any amounts required to be deposited by Countrywide pursuant
to Section 3.10 of this Agreement in connection with the deductible clause in
any blanket hazard insurance policy (such deposit shall be made from
Countrywide's own funds, without reimbursement therefor);
(i) the Prepayment Interest Shortfall Amount, if any, for the
month of distribution (such deposit shall be made from Countrywide's own funds,
without reimbursement therefor up to a maximum amount per month equal to the
lesser of one half of (a) one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loans, or (b) the
aggregate Servicing Fee actually received for such month for the Mortgage
Loans); and
(j) any amounts required to be deposited by Countrywide in
connection with any REO Property pursuant to Section 3.13 of this Agreement.
The foregoing requirements for deposit in the Custodial Account
are exclusive. The Purchaser understands and agrees that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
Prepayment Penalties and assumption fees (to the extent permitted by Section
3.16 of this Agreement) need not be deposited by Countrywide in the Custodial
Account. Any interest paid by the depository institution on funds deposited in
the Custodial Account shall accrue to the benefit of Countrywide and Countrywide
shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 3.05(d) of this Agreement.
Section 3.05 Permitted Withdrawals From the Custodial Account.
Countrywide may, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(a) to make payments to the Purchaser in the amounts and in the
manner provided for in Sections 4.01 and 4.03 of this Agreement;
(b) to reimburse itself for Monthly Advances (Countrywide's
reimbursement for Monthly Advances shall be limited to amounts received on the
related Mortgage Loan (or to amounts received on the Mortgage Loans as a whole
if the Monthly Advance is made due to a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Relief Act) which represent Late
Collections, net of the related Servicing Fee and LPMI Fee, if applicable.
Countrywide's right to reimbursement hereunder shall be prior to the rights of
the Purchaser, except that, where Countrywide is required to repurchase a
Mortgage Loan pursuant to Section 3.03 or 3.04 of the Purchase Agreement,
Countrywide's right to such reimbursement shall be subsequent to the payment to
the Purchaser of the Repurchase Price and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loans. Notwithstanding the
foregoing, Countrywide may reimburse itself for Monthly Advances from any funds
in the Custodial Account if it has determined that such funds are nonrecoverable
advances or if all funds, with respect to the related Mortgage Loan, have
previously been remitted to the Purchaser);
(c) to reimburse itself for unreimbursed Servicing Advances and
any unpaid Servicing Fees (Countrywide's reimbursement for Servicing Advances
and/or Servicing Fees hereunder with respect to any Mortgage Loan shall be
limited to proceeds from Cash Liquidation, Liquidation Proceeds, Condemnation
Proceeds, PMI Proceeds, Government Insurance Proceeds and Other Insurance
Proceeds; provided, however, that Countrywide may reimburse itself for Servicing
Advances and Servicing Fees from any funds in the Custodial Account if all
funds, with respect to the related Mortgage Loan, have previously been remitted
to the Purchaser. Notwithstanding the foregoing, with respect to each Government
Mortgage Loan, Countrywide shall not be entitled to reimbursement of any
Servicing Advances that constitute losses and expenses for which an issuer of
GNMA securities would be responsible, pursuant to Chapter 4 of the GNMA Handbook
5500.2, if such Government Mortgage Loan had been included in a GNMA security);
(d) to pay to itself as servicing compensation (i) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Remittance Date), and (ii) the Servicing Fee and the
LPMI Fee, if applicable, from that portion of any payment or recovery of
interest on a particular Mortgage Loan;
(e) to pay to itself, with respect to each Mortgage Loan that has
been repurchased pursuant to Section 3.03 or 3.04 of the Purchase Agreement, all
amounts received but not distributed as of the date on which the related
Repurchase Price is determined;
(f) to reimburse itself for any amounts deposited in the
Custodial Account in error; and
(g) to clear and terminate the Custodial Account upon the
termination of this Agreement.
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
Countrywide shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one (1) or more Escrow Accounts in the form of time
deposit or demand accounts, which accounts shall be Eligible Accounts.
Countrywide shall provide the Purchaser with written evidence of the creation of
such Escrow Account(s) within thirty (30) days of the Initial Closing Date.
Countrywide shall deposit in the Escrow Account(s) within two (2)
Business Days following receipt thereof, and retain therein, (a) all Escrow
Payments collected on account of the Mortgage Loans, and (b) all Other Insurance
Proceeds that are to be applied to the restoration or repair of any Mortgaged
Property. Countrywide shall make withdrawals therefrom only to effect such
payments as are required under this Agreement, and for such other purposes in
accordance with Section 3.07 of this Agreement. Countrywide shall be entitled to
retain any interest paid by the depository institution on funds deposited in the
Escrow Account except interest on escrowed funds required by law to be paid to
the Mortgagor or the related Mortgage. Countrywide shall pay Mortgagor interest
on the escrowed funds at the rate required by law notwithstanding that the
Escrow Account is non-interest bearing or the interest paid by the depository
institution thereon is insufficient to pay the Mortgagor interest at the rate
required by law.
Section 3.07 Permitted Withdrawals From Escrow Account.
Countrywide may, from time to time, withdraw funds from the
Escrow Account(s) for the following purposes: (a) to effect timely payments of
the following items, if applicable, ground rents, taxes, assessments, water
rates, mortgage insurance premiums, fire and hazard insurance premiums, PMI
Policy premiums, if applicable, and comparable items constituting Escrow
Payments for the related Mortgage; (b) to reimburse Countrywide for any
Servicing Advance made by Countrywide with respect to a related Mortgage Loan;
provided, however, that such reimbursement shall only be made from amounts
received on the related Mortgage Loan that represent late payments or
collections of Escrow Payments thereunder; (c) to refund to the Mortgagor any
funds as may be determined to be overages; (d) for transfer to the Custodial
Account in accordance with the terms of this Agreement; (e) for application to
restoration or repair of the Mortgaged Property; (f) to pay to Countrywide, or
to the Mortgagors to the extent required by law, any interest paid on the funds
deposited in the Escrow Account; (g) to reimburse itself for any amounts
deposited in the Escrow Account in error; or (h) to clear and terminate the
Escrow Account on the termination of this Agreement.
Section 3.08 Transfer of Accounts.
Countrywide may transfer the Custodial Account or the Escrow
Account to a different depository institution from time to time provided that
such Custodial Account and Escrow Account shall at all times be Eligible
Accounts.
Section 3.09 Payment of Taxes, Insurance and Other Charges;
Maintenance of PMI Policies; Collections Thereunder.
With respect to each Mortgage Loan, Countrywide shall maintain
accurate records reflecting the status of (a) ground rents, taxes, assessments,
water rates and other charges that are or may become a lien upon the Mortgaged
Property; (b) primary mortgage insurance premiums; (c) with respect to Mortgage
Loans insured by the FHA, mortgage insurance premiums, and (d) fire and hazard
insurance premiums. Countrywide shall obtain, from time to time, all bills for
the payment of such charges, including renewal premiums, and shall effect
payment thereof prior to the applicable penalty or termination date and at a
time appropriate for securing maximum discounts allowable using Escrow Payments
which shall have been estimated and accumulated by Countrywide in amounts
sufficient for such purposes. To the extent that the Mortgage does not provide
for Escrow Payments, Countrywide shall determine that any such payments are made
by the Mortgagor at the time they first become due. Countrywide assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills, irrespective of the Mortgagor's faithful performance
in the payment of same or the making of the Escrow Payments, and shall make
advances from its own funds to effect such payments.
Countrywide will maintain in full force and effect, a PMI Policy
conforming in all respects to the description set forth in Section 3.02(v) of
the Purchase Agreement, issued by an insurer described in that Section, with
respect to each Mortgage Loan for which such coverage is herein required. Such
coverage will be maintained until the LTV or the Updated LTV of the related
Mortgage Loan is reduced to 80% or less in the case of a Mortgage Loan having a
LTV at origination in excess of 80%. or Countrywide, as applicable, will not
cancel or refuse to renew any PMI Policy in effect on the Closing Date that is
required to be kept in force under this Agreement unless a replacement PMI
Policy is obtained from and maintained with an insurer that is approved by an
Agency. Countrywide shall not take any action that would result in non-coverage
under any applicable PMI Policy of any loss that, but for the actions of
Countrywide would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into pursuant
to Section 3.16 herein, Countrywide shall promptly notify the insurer under the
related PMI Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions that may be
required by such insurer as a condition to the continuation of coverage under
the PMI Policy. If such PMI Policy is terminated as a result of such assumption
or substitution of liability, Countrywide shall obtain a replacement PMI Policy
as provided above.
Unless otherwise provided in the related Purchase Confirmation,
no Mortgage Loan has in effect as of the Closing Date any mortgage pool
insurance policy or other credit enhancement, except for any PMI Policy, MIC or
LGC and the insurance or guarantee relating thereto, as applicable (excluding
such exception, the "Credit Enhancement"), and Countrywide shall not be required
to take into consideration the existence of any such Credit Enhancement for the
purposes of performing its servicing obligations hereunder. If the Purchaser
shall at any time after the related Closing Date notify Countrywide in writing
of its desire to obtain any such Credit Enhancement, the Purchaser and
Countrywide shall thereafter negotiate in good faith for the procurement and
servicing of such Credit Enhancement.
Section 3.10 Maintenance of Hazard Insurance.
Countrywide shall cause to be maintained, for each Mortgage Loan,
fire and hazard insurance with extended coverage as is customary in the area
where the Mortgaged Property is located in an amount that is equal to the lesser
of (a) the maximum insurable value of the improvements securing such Mortgage
Loan or (b) the greater of (i) the unpaid principal balance of the Mortgage
Loan, and (ii) the percentage such that the proceeds thereof shall be sufficient
to prevent the Mortgagor and/or the Mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards and such flood
insurance has been made available, Countrywide shall cause to be maintained a
flood insurance policy meeting the requirements of the current guidelines of the
National Flood Insurance Administration program (or any successor thereto) with
a generally acceptable insurance carrier and with coverage in an amount not less
than the lesser of (x) the unpaid principal balance of the Mortgage Loan; (y)
the maximum insurable value of the improvements securing such Mortgage Loan; or
(z) the maximum amount of insurance which is available under the National Flood
Insurance Reform Act of 1994. Countrywide shall also maintain on REO Property,
(1) fire and hazard insurance with extended coverage in an amount that is not
less than the maximum insurable value of the improvements that are a part of
such property; (2) liability insurance; and (3) to the extent required and
available under the National Flood Insurance Reform Act of 1994, flood insurance
in an amount as provided above. Countrywide shall deposit in the Custodial
Account all amounts collected under any such policies except (A) amounts to be
deposited in the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or REO Property and (B) amounts to be released to the
Mortgagor in accordance with Countrywide's normal servicing procedures. The
Purchaser understands and agrees that no earthquake or other additional
insurance on property acquired in respect of the Mortgage Loan shall be
maintained by Countrywide or Mortgagor. All such policies shall be endorsed with
standard mortgagee clauses with loss payable to Countrywide and shall provide
for at least thirty (30) days prior written notice to Countrywide of any
cancellation, reduction in the amount of coverage or material change in
coverage. Countrywide shall not interfere with the Mortgagor's freedom of choice
in selecting either the insurance carrier or agent; provided, however, that
Countrywide shall only accept insurance policies from insurance companies
acceptable to an Agency and licensed to do business in the state wherein the
property subject to the policy is located.
Section 3.11 [Reserved].
Section 3.12 Fidelity Bond; Errors and Omissions Insurance.
Countrywide shall cause to be maintained a blanket Fidelity Bond
and an errors and omissions insurance policy with responsible companies, with
broad coverage of all officers, employees or other persons acting in any
capacity with regard to the Mortgage Loan who handle funds, money, documents or
papers relating to the Mortgage Loans. The Fidelity Bond and errors and
omissions insurance shall be in the form of the Mortgage Banker's Blanket Bond
and shall protect and insure Countrywide against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of its
officers, employees and agents. Such Fidelity Bond shall also protect and insure
Countrywide against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.12 shall diminish
or relieve Countrywide from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to the corresponding amounts
required by an Agency for an approved seller/servicer. Upon the request of the
Purchaser, Countrywide shall provide to the Purchaser a certificate of insurance
which certifies coverage of such Fidelity Bond and errors and omissions
insurance policy under this Section 3.12. .
Section 3.13 Title, Management and Disposition of REO Property.
(a) Title. In the event that title to the Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be taken in the name of Countrywide for the benefit of
the Purchaser, or in the event the Purchaser is not authorized or permitted to
hold title to real property in the state where the REO Property is located, or
would be adversely affected under the "doing business" or tax laws of such state
by so holding title, the deed or certificate of sale shall be taken in the name
of such Person(s) as shall be consistent with an Opinion of Counsel obtained by
Countrywide from an attorney duly licensed to practice law in the state where
the REO Property is located. Any Person(s) holding such title other than the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the benefit of the Purchaser.
(b) Management. Countrywide shall either itself or through an
agent selected by Countrywide, manage, conserve, protect and operate each REO
Property in the same manner that it manages, conserves, protects and operates
other foreclosed property for its own account. Countrywide shall cause each REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least annually thereafter or
more frequently as required by the circumstances. Countrywide shall make or
cause to be made a written report of each such inspection. Such reports shall be
retained in the Credit File and copies thereof shall be forwarded by Countrywide
to the Purchaser within five (5) days of the Purchaser's request therefor.
Countrywide shall attempt to sell the REO Property (and may temporarily rent the
same for a period not greater than one year except as otherwise provided below)
on such terms and conditions as Countrywide deems to be in the best interest of
the Purchaser. Countrywide shall deposit, or cause to be deposited, within two
(2) Business Days of following receipt receipt thereof, in the Custodial Account
all revenues received with respect to each REO Property and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of each REO Property, including the cost of maintaining any hazard insurance
pursuant to Section 3.10 hereof and the fees of any managing agent acting on
behalf of Countrywide. Notwithstanding anything contained in this Agreement to
the contrary, upon written notice to Countrywide, the Purchaser may elect to
assume the management and control of any REO Property; provided, however, that
prior to giving effect to such election, the Purchaser shall reimburse
Countrywide for all previously unreimbursed or unpaid Monthly Advances,
Servicing Advances and Servicing Fees related to such REO Property.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held,
Countrywide shall manage, conserve, protect and operate each REO Property in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by such REMIC of any "income from non permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code.
(c) Disposition. Subject to the following paragraph, Countrywide
shall use best efforts to dispose of each REO Property as soon as possible and
shall sell each REO Property no later than one (1) year after title to such REO
Property has been obtained, unless Countrywide determines, and gives an
appropriate notice to the Purchaser, that a longer period is necessary for the
orderly disposition of any REO Property. If a period longer than one (1) year is
necessary to sell any REO Property, Countrywide shall, if requested by the
Purchaser, report monthly to the Purchaser as to the progress being made in
selling such REO Property. Countrywide shall also maintain, on each REO
Property, fire and hazard insurance with extended coverage in an amount which is
at least equal to the maximum insurable value of the improvements which are a
part of such property, liability insurance and, to the extent required and
available under the National Flood Insurance Act of 1968, as amended, flood
insurance in the amount required in Section3.10 hereof.
Each REO Disposition shall be carried out by Countrywide at such
price and upon such terms and conditions as Countrywide deems to be in a manner
that maximizes the net present value of the recovery to the Purchaser. If, as of
the date title to any REO Property was acquired by Countrywide there were
outstanding unreimbursed Servicing Advances, Monthly Advances or Servicing Fees
with respect to the REO Property or the related Mortgage Loan, Countrywide upon
an REO Disposition of such REO Property, shall be entitled to reimbursement for
any related unreimbursed Servicing Advances, Monthly Advances and Servicing Fees
from proceeds received in connection with such REO Disposition. The proceeds
from the REO Disposition, net of any payment to Countrywide as provided above,
shall be promptly deposited in the Custodial Account and distributed to the
Purchaser in accordance with Section 4.01 of this Agreement.
Section 3.14 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, Countrywide
shall adjust the Mortgage Interest Rate on the related Interest Adjustment Date
and shall adjust the Monthly Payment on the related Payment Adjustment Date in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. If, pursuant to the terms of the Mortgage Note, another index is
selected for determining the Mortgage Interest Rate because the original index
is no longer available, the same index will be used with respect to each
Mortgage Note which requires a new index to be selected, provided that such
selection does not conflict with the terms of the related Mortgage Note.
Countrywide shall execute and deliver any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments.
Countrywide shall promptly, upon written request therefor, deliver to the
Purchaser such notifications and any additional applicable data regarding such
adjustments and the methods used to calculate and implement such adjustments.
Upon the discovery by Countrywide or the Purchaser that Countrywide has failed
to adjust a Mortgage Interest Rate or a Monthly Payment pursuant to the terms of
the related Mortgage Note and Mortgage, Countrywide shall immediately deposit in
the Custodial Account, from its own funds, the amount of any interest loss
caused the Purchaser thereby without reimbursement therefor.
Section 3.15 Notification of Maturity Date.
With respect to each Balloon Mortgage Loan, Countrywide shall
execute and deliver to the Mortgagor any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the maturity date and final balloon payment.
Section 3.16 Assumption Agreements.
Countrywide shall, to the extent it has knowledge of any
conveyance or prospective conveyance by any Mortgagor of the Mortgaged Property
(whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note and/or the
Mortgage), exercise its rights to accelerate the maturity of such Mortgage Loan
under any "due-on-sale" clause to the extent permitted by law; provided,
however, that Countrywide shall not exercise any such right if prohibited from
doing so by law or the terms of the Mortgage Note or if the exercise of such
right would impair or threaten to impair any recovery under the related PMI
Policy, if any. If Countrywide reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, Countrywide shall enter into an
assumption agreement with the Person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. Where an assumption is allowed
pursuant to this Section 3.16, the Purchaser authorizes Countrywide, with the
prior written consent of the primary mortgage insurer, if any, to enter into a
substitution of liability agreement with the Person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which the
original Mortgagor is released from liability and such Person is substituted as
Mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of
liability, Countrywide shall follow the underwriting practices and procedures
employed by Countrywide for mortgage loans originated by Countrywide for its own
account in effect at the time such assumption or substitution is made. With
respect to an assumption or substitution of liability, the Mortgage Interest
Rate borne by the related Mortgage Note, the term of the Mortgage Loan and the
outstanding principal amount of the Mortgage Loan shall not be changed.
Countrywide shall notify the Purchaser that any such substitution of liability
or assumption agreement has been completed by forwarding to the Purchaser or its
designee the original of any such substitution of liability or assumption
agreement, which document shall be added to the related Collateral File and
shall, for all purposes, be considered a part of such Collateral File to the
same extent as all other documents and instruments constituting a part thereof.
Notwithstanding anything to the contrary contained herein,
Countrywide shall not be deemed to be in default, breach or any other violation
of its obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or any assumption that Countrywide may be restricted by law
from preventing, for any reason whatsoever. For purposes of this Section 3.16,
the term "assumption" is deemed to also include a sale of the Mortgaged Property
subject to the Mortgage that is not accompanied by an assumption or substitution
of liability agreement.
Section 3.17 Satisfaction of Mortgages and Release of Collateral
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
Countrywide of a notification that payment in full will be escrowed in a manner
customary for such purposes, Countrywide shall immediately notify the Purchaser
after the Monthly Remittance Advice (as defined in Section 4.02) has been
provided in accordance with Section 4.02 and Countrywide may request the release
of any Mortgage Loan documents from the Purchaser in accordance with Section
3.17 hereof. Such notice shall include a statement to the effect that all
amounts received or to be received in connection with such payment, which are
required to be deposited in the Custodial Account pursuant to Section 3.04 of
this Agreement, have been or will be so deposited and shall request delivery to
it of the portion of the Collateral File held by the Purchaser. Upon receipt of
such notice and request, the Purchaser shall within five (5) Business Days
release or cause to be released to Countrywide the related Collateral Documents
and Countrywide shall prepare and process any satisfaction or release. In the
event that the Purchaser fails to release or cause to be released to Countrywide
the related Collateral Documents within five (5) Business Days of Countrywide's
request therefor, the Purchaser shall be liable to Countrywide for any
additional expenses or costs, including, but not limited to, outsourcing fees
and penalties, incurred by Countrywide resulting from such failure. No expense
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account.
With respect to a Mortgage Loan paid in full as set forth in the
above paragraph, if the Mortgage has been recorded in the name of MERS or its
designee, Countrywide shall take all necessary action to effect the release of
the Mortgage Loan on the records of MERS.
In the event Countrywide satisfies or releases a Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage or should it otherwise prejudice any right the Purchaser may have under
the mortgage instruments, Countrywide, upon written demand of the Purchaser,
shall promptly remit to the Purchaser the then unpaid principal balance of the
related Mortgage Loan by deposit thereof in the Custodial Account. Countrywide
shall maintain the Fidelity Bond and errors and omissions insurance policy as
provided for in Section 3.12 insuring Countrywide against any loss it may
sustain with respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
From time to time and as appropriate for the service or
foreclosure of a Mortgage Loan, including for the purpose of collection under
any PMI Policy, the Purchaser shall, within five (5) Business Days of
Countrywide's request and delivery to the Purchaser, or the Purchaser's
designee, of a servicing receipt signed by a Servicing Officer, release or cause
to be released to Countrywide the portion of the Collateral File held by the
Purchaser or its designee. Pursuant to the servicing receipt, Countrywide shall
be obligated to return to the Purchaser the related Collateral File when
Countrywide no longer needs such file, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Custodial Account or the Collateral 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. In the event that the Purchaser fails to release or cause to be
released to Countrywide the portion of the Collateral File held by the Purchaser
or its designee within five (5) Business Days of Countrywide's request therefor,
the Purchaser shall be liable to Countrywide for any additional expenses or
costs, including, but not limited to, outsourcing fees and penalties, incurred
by Countrywide resulting from such failure. Upon receipt of notice from
Countrywide stating that such Mortgage Loan was liquidated, the Purchaser shall
release Countrywide from its obligations under the related servicing receipt.
Section 3.18 Servicing Compensation.
As compensation for its services hereunder, Countrywide shall be
entitled to withdraw from the Custodial Account, or to retain from interest
payments on the Mortgage Loans, the amounts provided for as Servicing Fees.
Additional servicing compensation in the form of assumption fees (as provided in
Section 3.16 of this Agreement), late payment charges, prepayment penalties or
otherwise shall be retained by Countrywide e to the extent not required to be
deposited in the Custodial Account. Countrywide shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided herein.
Section 3.19 Restoration of Mortgaged Property
Countrywide need not obtain the approval of the Purchaser prior
to releasing any Other Insurance Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in accordance
with Accepted Servicing Practices and the terms of this Agreement. At a minimum,
Countrywide shall comply with the following conditions in connection with any
such release of Other Insurance Proceeds.
(a) Countrywide shall receive satisfactory independent
verification of completion of repairs and issuance of any required approvals
with respect thereto;
(b) Countrywide shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to requiring
waivers with respect to mechanics'and materialmen's liens; and
(c) Pending repairs and restoration, Countrywide shall place
Other Insurance Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee,
Countrywide is hereby empowered to endorse any loss draft issued in respect of
such a claim in the name of the Purchaser.
Section 3.20 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999.
With respect to each Mortgage Loan, Countrywide and the Purchaser
shall comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999, as amended and
as applicable, and all applicable regulations promulgated thereunder, and shall
provide all notices required thereunder.
ARTICLE IV.
PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 4.01 Distributions.
On each Remittance Date, Countrywide shall distribute to the
Purchaser (a) all amounts credited to the Custodial Account as of the close of
business on the preceding Determination Date, net of charges against or
withdrawals from the Custodial Account pursuant to Section 3.05 hereof; plus (b)
all Monthly Advances, if any, that Countrywide is obligated to distribute
pursuant to Section 4.03 of this Agreement; minus (c) any amounts attributable
to Principal Prepayments received after the related Principal Prepayment Period;
minus (d) any amounts attributable to Monthly Payments collected but due on a
Due Date or Dates subsequent to the preceding Determination Date. It is
understood that, by operation of Section 3.04 hereof, the remittance on the
first Remittance Date is to include principal collected after the Cut-off Date
through the preceding Determination Date plus interest, adjusted to the Mortgage
Loan Remittance Rate, collected through such Determination Date exclusive of any
portion thereof allocable to the period prior to the Cut-off Date, with the
adjustments specified in (b), (c) and (d) above.
Section 4.02 Periodic Reports to the Purchaser.
(a) Monthly Reports. Not later than each Remittance Date,
Countrywide shall furnish to the Purchaser via an electronic medium mutually
acceptable to the parties, a monthly report in a form reasonably acceptable to
the parties ("a Monthly Remittance Advice"), which report shall include with
respect to each Mortgage Loan the following loan-level information: (i) the
scheduled balance as of the last day of the related Due Period, (ii) all
Principal Prepayments applied to the Mortgagor's account during the related
Principal Prepayment Period, and (iii) the delinquency and bankruptcy status of
the Mortgage Loan, if applicable.
(b) Miscellaneous Reports. Upon the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Purchaser pursuant to a
deed-in-lieu of foreclosure, Countrywide shall submit to the Purchaser a
liquidation report with respect to such Mortgaged Property, which report may be
included with any other reports prepared by Countrywide and delivered to the
Purchaser pursuant to the terms and conditions of this Agreement. With respect
to any REO Property, and upon the request of the Purchaser, Countrywide shall
furnish to the Purchaser a statement describing Countrywide's efforts during the
previous month in connection with the sale of such REO Property, including any
rental of such REO Property incidental to the sale thereof and an operating
statement. Following the foreclosure sale or abandonment of any Mortgaged
Property, Countrywide shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code or any successor provision thereof.
Countrywide shall also provide the Purchaser with such information concerning
the Mortgage Loans as is necessary for the Purchaser to prepare its federal
income tax return as the Purchaser may reasonably request from time to time. The
Purchaser agrees to pay for all reasonable out-of-pocket expenses incurred by
Countrywide in connection with complying with any request made by the Purchaser
hereunder if such information is not customarily provided by Countrywide in the
ordinary course of servicing mortgage loans similar to the Mortgage Loans.
Section 4.03 Monthly Advances by Countrywide.
Not later than the close of business on the Determination Date
preceding each Remittance Date, Countrywide shall deposit in the Custodial
Account an amount equal to all payments not previously advanced by Countrywide,
whether or not deferred pursuant to Section 4.01 of this Agreement, of principal
(due after the Cut-off Date) and interest not allocable to the period prior to
the Cut-off Date, adjusted to the Mortgage Loan Remittance Rate, which were due
on a Mortgage Loan and delinquent as of the close of business on the Business
Day prior to the related Determination Date. Notwithstanding anything to the
contrary herein, Countrywide may use amounts on deposit in the Custodial Account
for future distribution to the Purchaser to satisfy its obligation, if any, to
deposit delinquent amounts pursuant to the preceding sentence. To the extent
Countrywide uses any funds being held for future distribution to the Purchaser
to satisfy its obligations under this Section 4.03 hereof, Countrywide shall
deposit in the Custodial Account an amount equal to such used funds no later
than the Determination Date prior to the following Remittance Date to the extent
that funds in the Custodial Account on such Remittance Date are less than the
amounts to be remitted to the Purchaser pursuant to Section 4.01 of this
Agreement.
Countrywide's obligation to make such advances as to any Mortgage
Loan will continue through the earliest of: (a) the last Monthly Payment due
prior to the payment in full of the Mortgage Loan; (b) the Remittance Date prior
to the Remittance Date for the distribution of any Liquidation Proceeds, Other
Insurance Proceeds or Condemnation Proceeds which, in the case of Other
Insurance Proceeds and Condemnation Proceeds, satisfy in full the indebtedness
of such Mortgage Loan; or (c) the Remittance Date prior to the date the Mortgage
Loan is converted to REO Property; provided, however, with respect to any
Government Mortgage Loan that is converted to REO Property, Countrywide's
obligation to make such advances will continue in accordance with the applicable
governmental agency's guidelines. In no event shall Countrywide be obligated to
make an advance under this Section 4.03 of this Agreement if at the time of such
advance it reasonably determines that such advance will be unrecoverable.
Section 4.04 Annual Statement as to Compliance.
Countrywide shall deliver to the Purchaser on or before March 5th
of each calendar year, beginning in the year following the Closing Date, signed
by a senior officer of Countrywide stating that (a) a review of the activities
of Countrywide during the preceding fiscal year and of performance under this
Agreement have been made under such officer's supervision, (b) based on such
review, Countrywide has fulfilled all of its obligations under this Agreement
throughout such fiscal year, or, if there has been a default in the fulfillment
of any obligation, specifying each such default known to such officer and the
nature and status thereof and the actions being taken by Countrywide to cure
such default, and (iii) all reports and information provided to Purchaser by
Countrywide, pursuant to Countrywide's reporting requirements under the
Agreement, are accurate and complete in all material respects. Copies of such
statement may be provided by Purchaser to any Person identified as a prospective
purchaser of the Mortgage Loans.
Section 4.05 Annual Independent Certified Public Accountants'
Servicing Report.
Countrywide shall, on or before March 5th of each year, beginning
in the year following the Closing Date, cause, at its sole cost and expense, a
firm of independent public accountants, which is a member of the American
Institute of Certified Public Accountants, to furnish a statement to the
Purchaser to the effect that such firm has examined certain documents and
records and performed certain other procedures relating to the servicing of the
Mortgage Loans during the immediately preceding fiscal year of Countrywide and
that such firm is of the opinion that, on the basis of such examination
conducted substantially in accordance with the Uniform Single Attestation
Program for Mortgage Bankers, such servicing has been conducted in compliance
therewith, except for such exceptions as shall be set forth in such statement.
Section 4.06 Purchaser's Access to Countrywide's Records.
The Purchaser shall have access upon reasonable notice to
Countrywide, during regular business hours or at such other times as might be
reasonable under applicable circumstances, to any and all of the books and
records of Countrywide that relate to the performance or observance by
Countrywide of the terms, covenants or conditions of this Agreement. Further,
Countrywide hereby authorizes the Purchaser, in connection with a sale of the
Mortgage Loans, to make available to prospective purchasers a Consolidated
Statement of Operations of Countrywide, or its parent company, prepared by or at
the request of Countrywide for the most recently completed three (3) fiscal
years for which such a statement is available as well as a Consolidated
Statement of Condition at the end of the last two (2) fiscal years covered by
such Consolidated Statement of Operations. Se also agrees to make available to
any prospective purchaser, upon reasonable notice and during normal business
hours, a knowledgeable financial or accounting officer for the purpose of
answering questions respecting Countrywide's ability to perform under this
Agreement. The Purchaser agrees to reimburse Countrywide for any out-of-pocket
costs incurred by Countrywide in connection with its obligations under this
Section 4.06.
ARTICLE V.
COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide.
Countrywide shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and expenses and related costs,
judgments, and any other costs, fees and expenses that the Purchaser may sustain
in any way related to (a) a material breach of any of the representations or
warranties made by Countrywide in Section 2.01 of this Agreement, or (b) the
failure of Countrywide to perform its obligations hereunder including its
obligations to service and administer the Mortgage Loans in compliance with the
terms of this Agreement. Notwithstanding the foregoing, the Purchaser shall
indemnify Countrywide and hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that
Countrywide may sustain in any way related to (a) actions or inactions of
Countrywide which were taken or omitted upon the instruction or direction of the
Purchaser, (b) the failure of the Purchaser to perform its obligations
hereunder, including subsections (i) and (ii) in Section 5.03 of this Agreement,
or (c) failure of the Purchaser to comply with Section 3.20 of this Agreement.
The indemnification rights set forth in this Section 5.01 shall
survive the termination of this Agreement or the resignation or removal of
Countrywide for any reason.
Section 5.02 Merger or Consolidation of Countrywide.
Countrywide shall keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof, 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, or any of the Mortgage Loans, and to perform
its duties under this Agreement.
Notwithstanding anything to the contrary contained herein, any
Person into which Countrywide may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Countrywide
shall be a party, or any Person succeeding to the business of Countrywide, shall
be the successor of Countrywide hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however, that the successor or surviving Person shall be an institution whose
deposits are insured by FDIC or a company whose business is the servicing of
mortgage loans, unless otherwise consented to by the Purchaser, which consent
shall not be unreasonably withheld, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section 5.03 Limitation on Liability of Countrywide and Others.
Neither Countrywide nor any of the officers, employees or agents
of Countrywide shall be under any liability to the Purchaser for any action
taken, 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 Countrywide or any such person against any breach of
warranties or representations made herein, or the failure to perform its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. Countrywide and any officer, employee or
agent of Countrywide 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. Notwithstanding anything to the contrary contained in this
Agreement, unless one or more Event(s) of Default by Countrywide shall occur and
shall not have been remedied within the time limits set forth in Section 6.01(a)
of this Agreement, the Purchaser shall not record or cause to be recorded an
Assignment of Mortgage with the recording office. To the extent the Purchaser
records with the recording office as permitted herein an Assignment of Mortgage
which designates the Purchaser as the holder of record of the Mortgage, the
Purchaser agrees that it shall (i) provide Countrywide with immediate notice of
any action with respect to the Mortgage or the related Mortgaged Property and
ensure that the proper department or person at Countrywide receives such notice;
and (ii) immediately complete, sign and return to Countrywide any document
reasonably requested by Countrywide to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Countrywide. The Purchaser further agrees that Countrywide shall
have no liability for the Purchaser's failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Countrywide shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Countrywide
may, with the consent of the Purchaser, undertake any such action which it may
deem necessary or desirable to protect the Purchaser's interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Purchaser will be liable, and Countrywide shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to Countrywide's indemnification under Section 5.01
of this Agreement.
Section 5.04 No Transfer of Servicing.
Countrywide acknowledges that the Purchaser acts in reliance upon
Countrywide's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting the
generality of this Section, Countrywide shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the Purchaser,
which consent may not be unreasonably withheld; provided, however, that nothing
in this Agreement shall limit the right of Countrywide to assign the servicing
rights hereunder to Servicing LP. In the event Countrywide assigns the servicing
rights to Servicing LP as contemplated in this Section 5.04, the Servicing LP
shall assume all obligations of Countrywide, as servicer, under this Agreement
from and after the date of such assignment.
Section 5.05 Subservicing.
Countrywide may enter into subservicing agreements or
arrangements for the servicing and administration of any or all of the Mortgage
Loans. Countrywide will remain obligated and primarily liable to the Purchaser
for the servicing of the Mortgage Loans in accordance with the provisions of
this Agreement, without diminution of such obligation or liability by virtue of
the subservicing agreements or arrangements or by virtue of indemnification from
the subservicer, and to the same extent and under the same terms and conditions
as if Countrywide alone were servicing the Mortgage Loans. Countrywide will be
solely liable for all fees owed by it to any subservicer.
ARTICLE VI.
TERMINATION OF COUNTRYWIDE AS SERVICER
Section 6.01 Termination Due to an Event of Default.
(a) Each of the following shall be an Event of Default by
Countrywide if it shall occur and, if applicable, be continuing for the period
of time set forth therein:
(i) any failure by Countrywide to remit to the Purchaser
any payment required to be made under the terms of this Agreement
which such failure continues unremedied for a period of three (3)
Business Days after the date upon which written notice of such
failure, requiring the same to be remedied, shall be given to
Countrywide by the Purchaser; or
(ii) any failure on the part of Countrywide to duly
observe or perform in any material respect any of the covenants
or agreements on the part of Countrywide set forth in this
Agreement which continues unremedied for a period of thirty (30)
days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
Countrywide by the Purchaser (except that such number of days
shall be fifteen in the case of a failure to pay any premium for
any insurance policy required to be maintained under this
Agreement; a failure on the part of Countrywide to deliver the
statement or report, as applicable, required to be delivered
under Section 4.04 or 4.05 of this Agreement, which continues
unremedied for nine calendar days after receipt by Countrywide of
written notice of such failure from the Purchaser (which failure
shall continue no later than March 15th of each year ("Due Date")
with respect to Section 4.04 or 4.05 of this Agreement; provided,
however, Countrywide shall have received such written notice of
such failure at least 5 Business Days prior to such Due Date); or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment of
a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against
Countrywide and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(iv) Countrywide shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to Countrywide
or of or relating to all or substantially all of its property; or
(v) Countrywide shall admit in writing its inability to
pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(vi) Countrywide ceases to meet the servicer eligibility
qualifications of a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac; or
(vii) Countrywide fails to maintain its license to do
business or service residential mortgage loans in any
jurisdiction where the Mortgaged Properties are located if such
license is required, which failure continues unremedied for a
period of sixty-five (65) days, or such other additional time as
mutually agreed upon by the Purchaser and Countrywide; provided,
however, that it is understood by the Purchaser that the failure
to cure within the timeframe provided for herein (or such
additional time as mutually agreed upon by the Purchaser and the
Servicer) shall constitute an Event of Default solely for the
affected Mortgage Loan.
In case one or more Events of Default by Countrywide shall occur
and shall not have been remedied, the Purchaser, by notice in writing to
Countrywide may, in addition to whatever rights the Purchaser may have at law or
equity to damages, including injunctive relief and specific performance,
terminate without compensation (however, Countrywide shall be reimbursed for all
outstanding and unreimbursed Servicing Advances and Monthly Advances), all the
rights and obligations of Countrywide under this Agreement, the Purchase
Agreement and in and to the Mortgage Loans and the proceeds thereof. Upon the
receipt by Countrywide of such written notice, all authority and power of
Countrywide under this Agreement and the Purchase Agreement, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in the
Purchaser. Upon written request from the Purchaser, Countrywide shall prepare,
execute and deliver, any and all documents and other instruments and 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, at Countrywide's sole expense. Countrywide agrees to cooperate with
the Purchaser in effecting the termination of Countrywide's responsibilities and
rights hereunder, including without limitation, the transfer to the Purchaser,
for administration by it, of all cash amounts which shall at the time be
credited by Countrywide to the Custodial Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
(b) Waiver of Event of Default. The Purchaser may waive any
default by Countrywide in the performance of Countrywide's obligations hereunder
and its consequences. Upon any such waiver of a past default, such default shall
cease to exist, and any Events of Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereto
except to the extent expressly so waived.
Section 6.02 Termination by Other Means.
The respective obligations and responsibilities of Countrywide
shall terminate with respect to any Mortgage Loan Package upon the first to
occur of: (a) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or the disposition of
all REO Property in such Mortgage Loan Package and the remittance of all funds
due hereunder; (b) by mutual consent of Countrywide and the Purchaser in
writing; (c) the purchase by Countrywide of all outstanding Mortgage Loans and
REO Property in a Mortgage Loan Package at a price mutually agreed upon by the
parties; or (d) the Pass-Through Transfer of the last Mortgage Loan in such
Mortgage Loan Package.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: General Counsel
(ii) the Purchaser:
Barclays Bank PLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to: Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
To the address and contact set forth in the related Purchase
Confirmation or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 7.02 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 7.03 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 7.04 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 7.05 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 7.06 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement,
sell and transfer one or more of the Mortgage Loans in a Whole Loan Transfer or
Pass-Through Transfer and may assign this Agreement; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement in
the form of an assignment, assumption and recognition agreement ("AAR")
reasonably acceptable to the Purchaser and Countrywide and an original
counterpart of the AAR shall have been executed by the Purchaser and the
transferee and delivered to Countrywide. Notwithstanding the foregoing, no
transfer shall be effective if such transfer would result in there being more
than three (3) "Purchasers" outstanding hereunder with respect to any Mortgage
Loan Package. Any Person or trust to which Mortgage Loans may be transferred
pursuant to this Section 7.06(a) or Section 7.06(b) hereunder shall constitute a
single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Countrywide agree that with respect to some
or all of the Mortgage Loans, the Purchaser, at its sole option, but subject to
the limitations set forth in Section 7.06(a) hereof, may effect Pass-Through
Transfers, retaining Countrywide, as the servicer thereof or subservicer if a
master servicer is employed, or as applicable the "seller/servicer." On the
related Reconstitution Date, the Mortgage Loans transferred shall cease to be
covered by this Agreement; provided, however, that, in the event that any
Mortgage Loan transferred pursuant to this Section 7.06 is rejected by the
related transferee, Countrywide shall continue to service such rejected Mortgage
Loan on behalf of the Purchaser in accordance with the terms and provisions of
this Agreement. Countrywide shall cooperate with the Purchaser in connection
with each Pass-Through Transfer in accordance with this Section 7.06. In
connection therewith Countrywide shall:
(i) negotiate in good faith an AAR required to effectuate
the Pass-Through Transfer, provided such AAR creates no greater
obligation or cost on the part of Countrywide than otherwise set
forth in this Agreement, and provided further that Countrywide
shall be entitled to a servicing fee under that agreement at a
rate per annum no less than the Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Countrywide of the
type and scope customarily included in offering documents for
residential mortgage-backed securities transactions involving
multiple loan originators; and
(B) such opinions of counsel, letters from auditors,
and certificates of public officials or officers of Countrywide
as are reasonably believed necessary by the trustee, any rating
agency or the Purchaser, as the case may be, in connection with
such Pass-Through Transfer. The Purchaser shall pay all third
party costs associated with the preparation of the information
described in clause (ii)(A) above and the delivery of any
opinions, letters or certificates described in this clause
(ii)(B). Countrywide shall not be required to execute any AAR
unless a draft of such AAR is provided to Countrywide at least 10
days before the Reconstitution Date, or such longer period as may
reasonably be required for Countrywide and its counsel to review
and comment on the agreement.
(c) In connection with any Pass-Through Transfer, Countrywide
shall not be required to "bring down" any of the representations and warranties
in this Agreement (i.e., the representations and warranties only speak as of the
applicable date set forth in the Purchase Agreement), or, except as provided in
the following sentence, to make any other representations or warranties
whatsoever. Upon request, Countrywide will bring down the representations and
warranties in Section 2.01 of this Agreement to a date no later than the related
Reconstitution Date.
(d) Countrywide shall: (i) provide to the Purchaser any and all
necessary information and appropriate verification of information which may be
reasonably available to Countrywide, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; and (ii) execute an indemnity agreement agreed upon by the Purchaser
and Countrywide such as an Indemnification and Contribution Agreement in a form
to be mutually agreed upon by the parties. Moreover, Countrywide agrees to
cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements.
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers shall remain subject to this Agreement and shall continue
to be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
Section 7.07 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between
the terms and conditions of this Agreement, the Purchase Agreement and either
the related Trade Confirmation or the related Purchase Confirmation, the terms
of the related Purchase Confirmation shall control. In the event of any
conflict, inconsistency or ambiguity between the terms and conditions of the
Trade Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control. In the event of any conflict, inconsistency or
ambiguity between the terms and conditions of this Agreement and the Purchase
Agreement, the terms of this Agreement shall control.
Section 7.08 Governing Law.
This Agreement shall be deemed in effect when fully executed
counterpart and shall be deemed to have been made in the State of New York. The
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall be
deemed in accordance with the substantive laws of the State of New York (without
regard to conflict of laws principles), except to the extent preempted by
applicable federal Law.
Section 7.09 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 7.10 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide, the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser. Except as specifically
set forth in Section 7.06 above, the Purchaser may not assign, pledge or
hypothecate this Agreement to any Person without Countrywide's prior written
consent.
Section 7.11 Confidentiality.
Countrywide and the Purchaser acknowledge and agree that the
terms of the Transaction Documents shall be kept confidential and their contents
will not be divulged to any party without the other party's consent, except to
the extent that it is appropriate for Countrywide and the Purchaser to do so in
working with legal counsel, auditors, taxing authorities, or other governmental
agencies.
Section 7.12 Entire Agreement.
This Agreement and Purchase Confirmation constitute the entire
understanding between the Countrywide and the Purchaser with respect to each
Mortgage Loan Package and supersede all prior or contemporaneous oral or written
communications regarding same. Countrywide and the Purchaser understand and
agree that no employee, agent or other representative of Countrywide or the
Purchaser has any authority to bind such party with regard to any statement,
representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within the
express terms of this Agreement or the related Purchase Confirmation. Neither
this Agreement nor the related Purchase Confirmation shall be modified, amended
or in any way altered except by an instrument in writing signed by both parties.
Section 7.13 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 7.14 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 7.15 Waiver of Trial by Jury.
COUNTRYWIDE AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.16 Consent to Service of Process.
EACH OF THE PURCHASER AND COUNTRYWIDE IRREVOCABLY (I) SUBMITS TO
THE NON EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT;
(II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES
THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV)
CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED
MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
COUNTRYWIDE HOME LOANS INC.,
Countrywide
By:________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
BARCLAYS BANK PLC,
the Purchaser
By:________________________________
Name
Title:
EXHIBIT N
[RESERVED]
EXHIBIT 10.5
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006
("Agreement"), among Barclays Bank PLC ("Assignor"), BCAP LLC ("Assignee"),
IndyMac Bank F.S.B. (the "Servicer"), IndyMac Bank F.S.B. (the "Company") HSBC
Bank USA, National Association (the "Trustee") and ▇▇▇▇▇ Fargo Bank, National
Association ("the "Master Servicer & Securities Administrator"):
For and in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title, interest and obligations of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Master
Mortgage Loan Purchase Agreement (the "Sale Agreement"), dated as of November
30, 2006, between the Assignor, as purchaser (the "Purchaser"), and the Company,
as seller, and the Servicing Agreement (the "Servicing Agreement"), dated as of
November 30, 2006, between the Purchaser, and the Company, as servicer, each as
amended by Amendment Reg AB to the Master Loan Purchase and Servicing Agreement,
dated as of November 30, 2006 (together with the Sale Agreement and Servicing
Agreement, the "Sale and Servicing Agreements"), among the Purchaser and the
Company, solely insofar as the Sale and Servicing Agreements relate to the
Mortgage Loans.
From and after the date hereof, the Servicer shall service the
Mortgage Loans in accordance with the Servicing Agreement as modified by this
Agreement.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to any mortgage loans subject to
the Sale and Servicing Agreements that are not the Mortgage Loans set forth on
the Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), each of the Company and the Servicer shall and does hereby recognize
that the Assignee, in connection with a securitization of the Mortgage Loans
(the "Securitization"), will transfer the Mortgage Loans and assign its rights
under the Sale and Servicing Agreements (solely to the extent set forth herein)
and this Agreement to BCAP LLC Trust 2006-AA2 (the "Trust") created pursuant to
a Master Servicing and Trust Agreement, dated as of November 30, 2006 (the
"Master Servicing and Trust Agreement"), among the Assignee, the Trustee and
▇▇▇▇▇ Fargo Bank, National Association, as master servicer and securities
administrator (including its successors in interest and any successor master
servicers under the Master Servicing and Trust Agreement, the "Master
Servicer"). Each of the Company, the Servicer and the Master Servicer on behalf
of the Trust hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the Company and the
Servicer shall look solely to the Trust for performance of any obligations of
the Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust shall
have and assume all the rights, remedies and obligations available to the
Assignor, insofar as they relate to the Mortgage Loans, under the Sale and
Servicing Agreements, including, without limitation, the enforcement of the
document delivery requirements set forth in Section 2 of the Sale Agreement, and
shall be entitled to enforce all of the obligations of the Company thereunder
insofar as they relate to the Mortgage Loans, (iv) all references to the
Purchaser under the Sale and Servicing Agreements insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the Trust and (v) the Mortgage Loans
will be part of a "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code (a "REMIC"), and the Servicer shall service the
Mortgage Loans and any real property acquired upon default thereof (including,
without limitation, making or permitting any modification, waiver or amendment
of any term of any Mortgage Loan) in accordance with the Sale and Servicing
Agreement but in no event in a manner that would (A) cause the REMIC to fail to
qualify as a REMIC or (B) result in the imposition of a tax upon the REMIC, and
all custodial accounts and escrow accounts maintained under the Servicing
Agreement with respect to the Mortgage Loans shall be Eligible Accounts as set
forth in this Agreement. None of the Company, the Servicer or the Assignor shall
amend or agree to amend, modify, waiver, or otherwise alter any of the terms or
provisions of the Sale and Servicing Agreements which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans or the
Company's or the Servicer's performance under the Sale and Servicing Agreements
with respect to the Mortgage Loans without the prior written consent of the
Master Servicer on behalf of the Trust, which consent shall not be reasonable
withheld.
Representations and Warranties of the Company and the Servicer
3. Each of the Company and the Servicer warrants and represents to
the Assignor, the Assignee and the Trust as of the date hereof that:
(a) It is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, as
applicable;
(b) It has full power and authority to execute, deliver and perform
its obligations under this Agreement and has full power and authority to perform
its obligations under the Sale and Servicing Agreements to which it is a party .
The execution by it of this Agreement is in the ordinary course of its business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of its charter or bylaws or organization documents, as
applicable, or any legal restriction, or any material agreement or instrument to
which it is now a party or by which it is bound, or result in the violation of
any law, rule, regulation, order, judgment or decree to which its or its
property is subject. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by it, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute its valid and legally binding obligation, enforceable against it in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by it in connection with the execution, delivery or performance by it of
this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
to the best of its knowledge threatened against it, before any court,
administrative agency or other tribunal, which would draw into question the
validity of this Agreement or the Sale and Servicing Agreements, or which,
either in any one instance or in the aggregate, would result in any material
adverse change in its ability to perform its obligations under this Agreement or
the Sale and Servicing Agreements, and it is solvent.
Remedies for Breach of Representations and Warranties
4. Each of the Company and the Servicer hereby acknowledges and
agrees that the remedies available to the Assignor, the Assignee and the Trust
in connection with any breach of the representations and warranties made by it
set forth in Section 3 hereof shall be as set forth in Subsection 3.03 of the
Sale Agreement as if they were set forth herein (including without limitation
the repurchase and indemnity obligations set forth therein).
Miscellaneous
5. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
6. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Master Servicer.
7. This Agreement shall inure to the benefit of (i) the parties
hereto and their respective successors and assigns and (ii) the Trust. Any
entity into which Assignor, Assignee, the Servicer or Company may be merged or
consolidated shall, without the requirement for any further writing, be deemed
Assignor, Assignee, the Servicer or Company, respectively, hereunder.
8. Each of this Agreement and the Sale and Servicing Agreements
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreements (to the extent assigned hereunder) by Assignor to
Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Sale and Servicing Agreements.
9. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
10. In the event that any provision of this Agreement conflicts with
any provision of any Sale and Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
11. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Sale and Servicing Agreements
12. All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to:
In the case of Barclays:
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Depositor:
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Trustee
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Company and Servicer:
IndyMac Bank, F.S.B.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secondary Marketing - Transaction
Management
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Master Servicer:
for the purposes of notices:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services - BCAP
2006-AA2 Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy
to ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ClientManager BCAP 2006-AA2; and
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Client Manager BCAP 2006-AA2
for the purposes of remittance:
Direct to: ▇▇▇▇▇ Fargo Bank, N.A.
Bank Number ABA: ▇▇▇▇▇▇▇▇▇
Beneficiary Account #: ▇▇▇▇▇▇▇▇▇▇
Beneficiary Account Name: [SAS Clearing]
Reference: For Further Credit 50971400 BCAP 2006-AA2
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
INDYMAC BANK F.S.B.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Vice President
INDYMAC BANK F.S.B.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Vice President
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Its: Managing Director
BCAP LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Its: Managing Director
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Its: Assistant Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
(Delivered to Master Servicer on the Closing Date)
EXHIBIT 10.6
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006
("Agreement"), among Barclays Bank PLC ("Assignor"), BCAP LLC ("Assignee"),
Countrywide Home Loans Servicing LP (the "Servicer"), Countrywide Home Loans,
Inc. (the "Company"), HSBC Bank USA, National Association (the "Trustee") and
▇▇▇▇▇ Fargo Bank, National Association ("the "Master Servicer & Securities
Administrator"):
For and in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title, interest and obligations of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Master
Mortgage Loan Purchase Agreement (the "Sale Agreement"), dated as of August 30,
2006, between the Assignor, as purchaser (the "Purchaser"), and the Company, as
seller, and the Servicing Agreement (the "Servicing Agreement"), dated as of
August 30, 2006, between the Purchaser, and the Company, as servicer, each as
amended by Amendment Reg AB to the Master Loan Purchase and Servicing Agreement,
dated as of August 30, 2006 (together with the Sale Agreement and Servicing
Agreement, the "Sale and Servicing Agreements"), among the Purchaser and the
Company, solely insofar as the Sale and Servicing Agreements relate to the
Mortgage Loans.
From and after the date hereof, the Servicer shall service the
Mortgage Loans in accordance with the Servicing Agreement as modified by this
Agreement.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to any mortgage loans subject to
the Sale and Servicing Agreements that are not the Mortgage Loans set forth on
the Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), each of the Company and the Servicer shall and does hereby recognize
that the Assignee, in connection with a securitization of the Mortgage Loans
(the "Securitization"), will transfer the Mortgage Loans and assign its rights
under the Sale and Servicing Agreements (solely to the extent set forth herein)
and this Agreement to BCAP LLC Trust 2006-AA2 (the "Trust") created pursuant to
a Master Servicing and Trust Agreement, dated as of November 30, 2006 (the
"Master Servicing and Trust Agreement"), among the Assignee, the Trustee and
▇▇▇▇▇ Fargo Bank, National Association, as master servicer and securities
administrator (including its successors in interest and any successor master
servicers under the Master Servicing and Trust Agreement, the "Master
Servicer"). Each of the Company, the Servicer and the Master Servicer on behalf
of the Trust hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the Company and the
Servicer shall look solely to the Trust for performance of any obligations of
the Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust shall
have and assume all the rights, remedies and obligations available to the
Assignor, insofar as they relate to the Mortgage Loans, under the Sale and
Servicing Agreements, including, without limitation, the enforcement of the
document delivery requirements set forth in Section 2 of the Sale Agreement, and
shall be entitled to enforce all of the obligations of the Company thereunder
insofar as they relate to the Mortgage Loans, (iv) all references to the
Purchaser under the Sale and Servicing Agreements insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the Trust and (v) the Mortgage Loans
will be part of a "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code (a "REMIC"), and the Servicer shall service the
Mortgage Loans and any real property acquired upon default thereof (including,
without limitation, making or permitting any modification, waiver or amendment
of any term of any Mortgage Loan) in accordance with the Sale and Servicing
Agreement but in no event in a manner that would (A) cause the REMIC to fail to
qualify as a REMIC or (B) result in the imposition of a tax upon the REMIC, and
all custodial accounts and escrow accounts maintained under the Servicing
Agreement with respect to the Mortgage Loans shall be Eligible Accounts as set
forth in this Agreement. None of the Company, the Servicer or the Assignor shall
amend or agree to amend, modify, waiver, or otherwise alter any of the terms or
provisions of the Sale and Servicing Agreements which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans or the
Company's or the Servicer's performance under the Sale and Servicing Agreements
with respect to the Mortgage Loans without the prior written consent of the
Master Servicer on behalf of the Trust, which consent shall not be reasonable
withheld.
Representations and Warranties of the Company and the Servicer
3. Each of the Company and the Servicer warrants and represents to
the Assignor, the Assignee and the Trust as of the date hereof that:
(a) It is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, as
applicable;
(b) It has full power and authority to execute, deliver and perform
its obligations under this Agreement and has full power and authority to perform
its obligations under the Sale and Servicing Agreements to which it is a party .
The execution by it of this Agreement is in the ordinary course of its business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of its charter or bylaws or organization documents, as
applicable, or any legal restriction, or any material agreement or instrument to
which it is now a party or by which it is bound, or result in the violation of
any law, rule, regulation, order, judgment or decree to which its or its
property is subject. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by it, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute its valid and legally binding obligation, enforceable against it in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by it in connection with the execution, delivery or performance by it of
this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
to the best of its knowledge threatened against it, before any court,
administrative agency or other tribunal, which would draw into question the
validity of this Agreement or the Sale and Servicing Agreements, or which,
either in any one instance or in the aggregate, would result in any material
adverse change in its ability to perform its obligations under this Agreement or
the Sale and Servicing Agreements, and it is solvent.
Remedies for Breach of Representations and Warranties
4. Each of the Company and the Servicer hereby acknowledges and
agrees that the remedies available to the Assignor, the Assignee and the Trust
in connection with any breach of the representations and warranties made by it
set forth in Section 3 hereof shall be as set forth in Subsection 3.03 of the
Sale Agreement as if they were set forth herein (including without limitation
the repurchase and indemnity obligations set forth therein).
Amendments to Sale and Servicing Agreements for the Securitization
5. Solely with respect to the Mortgage Loans, the following
amendments are hereby made to the Servicing Agreement:
(a) The following definitions set forth in the Servicing Agreement
are amended and restated in their entirety as follows:
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking and savings and loan institutions in either the State of
California, the State of Maryland, the State of Minnesota or the State of Texas
are authorized or obligated by law or executive order to be closed.
Depository Institution: Any depository institution or trust company, including
the Servicer and the Company, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "P-1" by Moody's and "A-1" by Standard & Poor's.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account at an
institution acceptable to each Rating Agency. Each Eligible Account shall be a
separate account.
Eligible Institution: A federal or state-chartered depository institution or
trust company the commercial paper, short-term debt obligations, or other
short-term deposits of which are rated "A-1+" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days (or
at least "A-2" by Standard & Poor's if the amounts on deposit are to be held in
the account for no more than 30 days), or the long-term unsecured debt
obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Purchaser by written notice
to the Servicers).
Permitted Investments: Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued by the Servicer, the Company, or any of their respective
affiliates:
(1) direct obligations of, or obligations fully guaranteed
as to timely payment of principal and interest by, the United States
or any agency or instrumentality thereof, provided such obligations
are backed by the full faith and credit of the United States;
(2) demand and time deposits in, certificates of deposit
of, or bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars and issued by any Depository
Institution and rated F1+ by Fitch, P-1 by Moody's and A-1+ by S&P;
(3) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(4) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United States of America or any state thereof and that are rated by
each of Moody's and Standard & Poor's that rates such securities in
its highest long-term unsecured rating categories at the time of
such investment or contractual commitment providing for such
investment;
(5) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date
of acquisition thereof) that is rated by each of Moody's and
Standard & Poor's that rates such securities in its highest
short-term unsecured debt rating available at the time of such
investment;
(6) units of money market funds, including money market
funds advised by the Servicer, the Company or an affiliate thereof,
that are rated, if rated by Moody's, at least "Aaa" by Moody's, and
at least "AAAm" or "AAAm-G" by Standard & Poor's; and
(7) if previously confirmed in writing to the Assignee or
its designee, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to
Moody's and Standard & Poor's as a permitted investment of funds
backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Reconstitution Date: The date on which any or all of the Mortgage Loans serviced
under this Agreement shall be removed from this Agreement and reconstituted as
part of a Pass-Through Transfer pursuant to Section 7.06 hereof. The
Reconstitution Date shall be November 30, 2006.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per annum set
forth in the applicable Trade Confirmation or Purchase Confirmation, a copy of
which applicable Trade Confirmation or Purchase Confirmation shall be provided
to ▇▇▇▇▇ Fargo Bank, National Association by the BCAP LLC.
(b) The first paragraph of Section 3.04 of the Servicing Agreement
is amended and restated in its entirety as follows:
Countrywide shall segregate and hold all funds collected and received pursuant
to each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one (1) or more Custodial Accounts, in
the form of time deposit or demand accounts and shall be titled "Countrywide in
trust for BCAP LLC Trust 2006-AA2 as Purchaser of Mortgage Loans and various
Mortgagors." Countrywide shall provide the Purchaser with written evidence of
the creation of such Custodial Account(s) upon the request of the Purchaser.
(c) The first paragraph of Section 3.13(c) of the Servicing
Agreement is amended and restated in its entirety as follows:
Disposition. Subject to the following paragraph, Countrywide shall use best
efforts to dispose of each REO Property as soon as possible and shall sell each
REO Property no later than three (3) years after title to such REO Property has
been obtained, unless Countrywide determines, and gives an appropriate notice to
the Purchaser, that a longer period is necessary for the orderly disposition of
any REO Property. If a period longer than one (1) year is necessary to sell any
REO Property, Countrywide shall, if requested by the Purchaser, report monthly
to the Purchaser as to the progress being made in selling such REO Property.
Countrywide shall also maintain, on each REO Property, fire and hazard insurance
with extended coverage in an amount which is at least equal to the maximum
insurable value of the improvements which are a part of such property, liability
insurance and, to the extent required and available under the National Flood
Insurance Act of 1968, as amended, flood insurance in the amount required in
Section 3.10 hereof.
(d) The first paragraph of Section 4.02(a) of the Servicing
Agreement is amended and restated in its entirety as follows:
Monthly Reports. Not later than each Remittance Date, Countrywide shall furnish
to the Purchaser via an electronic medium mutually acceptable to the parties, a
monthly report in form and substance reasonably acceptable to the parties ("a
Monthly Remittance Advice") attached hereto as Exhibit B, which report shall
include with respect to each Mortgage Loan the following loan-level information:
(i) the scheduled balance as of the last day of the related Due Period, (ii) all
Principal Prepayments applied to the Mortgagor's account during the related
Principal Prepayment Period, and (iii) the delinquency and bankruptcy status of
the Mortgage Loan, if applicable; provided, however, it is understood that
Countrywide shall not be obligated to report on any prepayment penalties or
charges.
(e) Exhibit B, attached hereto, is hereby added to the Servicing
Agreement.
(f) Sections 4.04 and 4.05 of the Servicing Agreement are hereby
deleted.
(g) Section 3.04 of the Servicing Agreement is hereby amended by
adding the following paragraph to the end thereof:
The Servicer may (but shall not be obligated to) invest funds in the
Custodial Account, in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand or maturing on the related
Remittance Date, in the case of an investment that is an obligation of the
Servicer, no later than the Business Day immediately preceding the Remittance
Date. The Servicer shall be liable to the Assignee's or its designee for any
such loss on any funds it has invested under this Section 3.04, and the Servicer
shall deposit funds in the amount of such loss in the Custodial Account promptly
after such loss is incurred.
Miscellaneous
6. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Master Servicer on behalf of the Trust.
8. This Agreement shall inure to the benefit of (i) the parties
hereto and their respective successors and assigns and (ii) the Trust. Any
entity into which Assignor, Assignee, the Servicer or Company may be merged or
consolidated shall, without the requirement for any further writing, be deemed
Assignor, Assignee, the Servicer or Company, respectively, hereunder.
9. Each of this Agreement and the Sale and Servicing Agreements
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreements (to the extent assigned hereunder) by Assignor to
Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Sale and Servicing Agreements.
10. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts with
any provision of any Sale and Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Sale and Servicing Agreements
13. All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to:
In the case of Barclays:
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Depositor:
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Trustee
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Company and Servicer:
Countrywide Home Loans, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
In the case of the Master Servicer:
for the purposes of notices:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services - BCAP
2006-AA2 Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy
to ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ClientManager BCAP 2006-AA2; and
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Client Manager BCAP 2006-AA2
for the purposes of remittance:
Direct to: ▇▇▇▇▇ Fargo Bank, N.A.
Bank Number ABA: ▇▇▇▇▇▇▇▇▇
Beneficiary Account #: ▇▇▇▇▇▇▇▇▇▇
Beneficiary Account Name: [SAS Clearing]
Reference: For Further Credit 50971400 BCAP 2006-AA2
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: First Vice President
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc., its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Its: Managing Director
BCAP LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Its: Managing Director
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Its: Assistant Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
(Delivered to Master Servicer on the Closing Date)
EXHIBIT B
Monthly Remittance Advice
Column Name Description Deci Format Comment Max
mal Size
-------------------------------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer to define a Text up to 10 digits 20
group of loans.
LOAN_NBR A unique identifier assigned to each loan by Text up to 10 digits 10
the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the
LOAN_NBR.
BORROWER_NAME The borrower name as received in the file. It Maximum length of 30 (Last, First) 30
is not separated by first and last name.
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar signs ($) 11
scheduled interest payment that a
borrower is expected to pay, P&I
constant.
NOTE_INT_RATE The loan interest rate as reported by 4 Max length of 6 6
the Servicer.
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or dollar signs ($) 11
at the beginning of the processing
cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or dollar signs ($) 11
at the end of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that MM/DD/YYYY 10
the borrower's next payment is due to the
Servicer, as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_1 The curtailment date associated with the first MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_3 The curtailment date associated with the third MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
Action Code Key: 15=Bankruptcy, 2
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇,
63=Substitution,
65=Repurchase,70=REO
ACTION_CODE The standard FNMA numeric code used to indicate
the default/delinquent status of a particular
loan.
INT_ADJ_AMT The amount of the interest adjustment 2 No commas(,) or dollar signs ($) 11
as reported by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
LOAN_LOSS_AMT The amount the Servicer is passing as a 2 No commas(,) or dollar signs ($) 11
loss, if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal 2 No commas(,) or dollar signs ($) 11
amount due at the beginning of the
cycle date to be passed through to
investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar signs ($) 11
investors at the end of a processing
cycle.
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer for the
current cycle -- only applicable for
Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount 2 No commas(,) or dollar signs ($) 11
less the service fee amount for the current cycle
as reported by the Servicer -- only applicable
for Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected 2 No commas(,) or dollar signs ($) 11
by the Servicer for the current
reporting cycle -- only applicable for
Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less 2 No commas(,) or dollar signs ($) 11
the service fee amount for the current reporting
cycle as reported by the Servicer -- only
applicable for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar signs ($) 11
borrower prepays on his loan as
reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the 2 No commas(,) or dollar signs ($) 11
loan waived by the servicer.
MOD_DATE The Effective Payment Date of the Modification MM/DD/YYYY 10
for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar signs ($) 11
interest advances made by Servicer.
EXHIBIT O
INTEREST RATE SWAP AGREEMENT
EXHIBIT 10.7
Barclays Bank PLC
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
DATE: November 30, 2006
TO: ▇▇▇▇▇ Fargo Bank, National Association, not
individually, but solely as Securities
Administrator for BCAP LLC Trust 2006-AA2,
Mortgage Pass-Through Certificates, Series
2006-AA2
ATTENTION: Client Manager - BCAP 2006-AA2
TELEPHONE: ▇▇▇-▇▇▇-▇▇▇▇
FACSIMILE: ▇▇▇-▇▇▇-▇▇▇▇
FROM: Barclays Bank PLC
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER: 1439003B
The purpose of this long-form confirmation ("Confirmation") is to confirm the
terms and conditions of the Transaction entered into on the Trade Date specified
below (the "Transaction") between Barclays Bank PLC ("Party A") and ▇▇▇▇▇ Fargo
Bank, National Association, not individually, but solely as securities
administrator (the "Securities Administrator") on behalf of the trust with
respect to the BCAP LLC Trust 2006-AA2, Mortgage Pass-Through Certificates,
Series 2006-AA2 (the "Trust") ("Party B") created under the Master Servicing and
Trust Agreement, dated as of November 1, 2006, among BCAP LLC, as Depositor,
▇▇▇▇▇ Fargo Bank, National Association, as Securities Administrator and Master
Servicer, and HSBC Bank USA, National Association, as Trustee (the "Base
Agreement"). This Confirmation evidences a complete and binding agreement
between you and us to enter into the Transaction on the terms set forth below
and replaces any previous agreement between us with respect to the subject
matter hereof. This Confirmation constitutes a "Confirmation" and also
constitutes a "Schedule" as referred to in the ISDA Master Agreement, and
Paragraph 13 of a Credit Support Annex to the Schedule.
1. This Confirmation shall supplement, form a part of, and be subject to an
agreement in the form of the ISDA Master Agreement (Multicurrency - Cross
Border) as published and copyrighted in 1992 by the International Swaps
and Derivatives Association, Inc. (the "ISDA Master Agreement"), as if
Party A and Party B had executed an agreement in such form on the date
hereof, with a Schedule as set forth in Item 3 of this Confirmation, and
an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements Subject to
New York Law Only version) as published and copyrighted in 1994 by the
International Swaps and Derivatives Association, Inc., with Paragraph 13
thereof as set forth in Annex A hereto (the "Credit Support Annex"). For
the avoidance of doubt, the Transaction described herein shall be the sole
Transaction governed by such ISDA Master Agreement. In the event of any
inconsistency among any of the following documents, the relevant document
first listed shall govern: (i) this Confirmation, exclusive of the
provisions set forth in Item 3 hereof and Annex A hereto; (ii) the
provisions set forth in Item 3 hereof, which are incorporated by reference
into the Schedule; (iii) the Credit Support Annex; (iv) the Definitions;
and (v) the ISDA Master Agreement.
Each reference herein to a "Section" (unless specifically referencing the
Base Agreement) or to a "Section of this Agreement" will be construed as a
reference to a Section of the ISDA Master Agreement; each reference herein
to a "Part" will be construed as a reference to the provisions herein
deemed incorporated in a Schedule to the ISDA Master Agreement; each
reference herein to a "Paragraph" will be construed as a reference to a
Paragraph of the Credit Support Annex.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation
Period, the amount set forth for such period
on Schedule I attached hereto.
Trade Date: November 30, 2006
Effective Date: November 30, 2006
Termination Date: December 25, 2013, which for the
purpose of the final Fixed Rate
Payer Calculation Period is
subject to No Adjustment, and for
the purpose of the final Floating
Rate Payer Calculation Period is
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 calendar day of each
month during the Term of this
Transaction, commencing December
25, 2006, subject to No Adjustment.
Fixed Rate Payer
Payment Dates: Early Payment shall be applicable.
For each Calculation Period, the
Fixed Rate Payer Payment Date
shall be the first Business Day
prior to the related Fixed Rate
Payer Period End Date.
Fixed Rate: 5.33%
Fixed Rate Day
Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer
Period End Dates: The 25th calendar day of each month
during the Term of this Transaction,
commencing December 25, 2006, subject
to adjustment in accordance with the
Business Day Convention.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable.
For each Calculation Period, the
Floating Rate Payer Payment Date
shall be the first Business Day
prior to the related Floating Rate
Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable
Business Days: New York and London
Business Day
Convention: Modified Following
Calculation Agent: Party A
Account Details and Settlement Information:
Payments to Party A: Correspondent: BARCLAYS BANK PLC NEW YORK
FEED: ▇▇▇▇▇▇▇▇▇
Beneficiary: BARCLAYS SWAPS
Beneficiary Account: ▇▇▇-▇▇▇▇▇-▇
Payments to Party B: ▇▇▇▇▇ Fargo Bank, National Association
San Francisco, CA
ABA No.: 121 000 248
Account No.: ▇▇▇▇▇▇▇▇▇▇
Account Name: SAS Trust Clearing
FFC: 17214200,
BCAP 2006-AA2 Swap Account
3. Provisions Deemed Incorporated in a Schedule to the ISDA Master Agreement:
Part 1. Termination Provisions.
For the purposes of this Agreement:-
(a) "Specified Entity" will not apply to Party A or Party B for any purpose.
(b) "Specified Transaction" will not apply to Party A or Party B for any
purpose.
(c) Events of Default.
The statement below that an Event of Default will apply to a specific
party means that upon the occurrence of such an Event of Default with
respect to such party, the other party shall have the rights of a
Non-defaulting Party under Section 6 of this Agreement; conversely, the
statement below that such event will not apply to a specific party means
that the other party shall not have such rights.
(i) The "Failure to Pay or Deliver" provisions of Section 5(a)(i)
will apply to Party A and will apply to Party B.
(ii) The "Breach of Agreement" provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party B; provided,
however, that notwithstanding anything to the contrary in Section
5(a)(ii), any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the
Credit Support Annex shall not constitute an Event of Default
under Section 5(a)(ii) unless (A) a Required Ratings Downgrade
Event has occurred and been continuing for 30 or more Local
Business Days and (B) such failure is not remedied on or before
the third Local Business Day after notice of such failure is
given to Party A.
(iii) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B except that
Section 5(a)(iii)(1) will apply to Party B solely in respect of
Party B's obligations under Paragraph 3(b) of the Credit Support
Annex; provided, however, that notwithstanding anything to the
contrary in Section 5(a)(iii)(1), any failure by Party A to
comply with or perform any obligation to be complied with or
performed by Party A under the Credit Support Annex shall not
constitute an Event of Default under Section 5(a)(iii) unless (A)
a Required Ratings Downgrade Event has occurred and been
continuing for 30 or more Local Business Days and (B) such
failure is not remedied on or before the third Local Business Day
after notice of such failure is given to Party A.
(iv) The "Misrepresentation" provisions of Section 5(a)(iv) will apply
to Party A and will not apply to Party B.
(v) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A and will not apply to Party B.
(vi) The "Cross Default" provisions of Section 5(a)(vi) will apply to
Party A and will not apply to Party B. For purposes of Section
5(a)(vi), solely with respect to Party A:
"Specified Indebtedness" will have the meaning specified in
Section 14, except that such term shall not include obligations
in respect of deposits received in the ordinary course of Party
A's banking business.
"Threshold Amount" means with respect to Party A an amount equal
to 3% of Party A's shareholders' equity (on a consolidated basis)
determined in accordance with generally accepted accounting
principles in Party A's jurisdiction of incorporation or
organization as at the end of Party A's most recently completed
fiscal year.
(vii) The "Bankruptcy" provisions of Section 5(a)(vii) will apply to
Party A and Party B; provided that clauses (2), (7) and (9)
thereof shall not apply to Party B; provided further that clause
(4) thereof shall not apply to Party B with respect to
proceedings or petitions instituted or presented by Party A or
any Affiliate of Party A; provided further that clause (6) shall
not apply to Party B to the extent that it refers to (i) any
appointment that is effected by or contemplated in connection
with the Base Agreement (as defined below) or (ii) any
appointment to which Party B has not become subject; and provided
further that clause (8) shall not apply to Party B to the extent
that clause (8) relates to clauses of Section 5(a)(vii) that are
not applicable to Party B.
(viii) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will apply to Party B.
(d) Termination Events.
The statement below that a Termination Event will apply to a specific
party means that upon the occurrence of such a Termination Event, if
such specific party is the Affected Party with respect to a Tax Event,
the Burdened Party with respect to a Tax Event Upon Merger (except as
noted below) or the non-Affected Party with respect to a Credit Event
Upon Merger, as the case may be, such specific party shall have the
right to designate an Early Termination Date in accordance with Section
6 of this Agreement; conversely, the statement below that such an event
will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to "Illegality" the
statement that such event will apply to a specific party means that upon
the occurrence of such a Termination Event with respect to such party,
either party shall have the right to designate an Early Termination Date
in accordance with Section 6 of this Agreement.
(i) The "Illegality" provisions of Section 5(b)(i) will apply to
Party A and will apply to Party B.
(ii) The "Tax Event" provisions of Section 5(b)(ii) will apply to
Party A and will apply to Party B.
(iii) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will apply to Party B, provided that Party A
shall not be entitled to designate an Early Termination Date by
reason of a Tax Event upon Merger in respect of which it is the
Affected Party.
(iv) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply, provided, however, that, in the event
of a Derivative Provider Trigger Event, the following provisions
will apply:
(A) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"Market Quotation" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by a
Reference Market-maker that is an Eligible Replacement, (2)
for an amount that would be paid to Party B (expressed as a
negative number) or by Party B (expressed as a positive
number) in consideration of an agreement between Party B and
such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of Transactions
are to be excluded but, without limitation, any payment or
delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination
Date is to be included.
(B) The definition of Settlement Amount shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early
Termination Date, an amount (as determined by Party B) equal
to:
(a) If a Market Quotation for the relevant
Terminated Transaction or group of Terminated
Transactions is accepted by Party B so as to
become legally binding on or before the day
falling ten Local Business Days after the day on
which the Early Termination Date is designated,
or such later day as Party B may specify in
writing to Party A, but in either case no later
than one Local Business Day prior to the Early
Termination Date (such day, the "Latest
Settlement Amount Determination Day"), the
Termination Currency Equivalent of the amount
(whether positive or negative) of such Market
Quotation;
(b) If, on the Latest Settlement Amount
Determination Day, no Market Quotation for the
relevant Terminated Transaction or group of
Terminated Transactions has been accepted by
Party B so as to become legally binding and one
or more Market Quotations from Approved
Replacements have been made and remain capable
of becoming legally binding upon acceptance, the
Settlement Amount shall equal the Termination
Currency Equivalent of the amount (whether
positive or negative) of the lowest of such
Market Quotations (for the avoidance of doubt,
the lowest of such Market Quotations shall be
the lowest Market Quotation of such Market
Quotations expressed as a positive number or, if
any of such Market Quotations is expressed as a
negative number, the Market Quotation expressed
as a negative number with the largest absolute
value); or
(c) If, on the Latest Settlement Amount
Determination Day, no Market Quotation for the
relevant Terminated Transaction or group of
Terminated Transactions is accepted by Party B
so as to become legally binding and no Market
Quotation from an Approved Replacement remains
capable of becoming legally binding upon
acceptance, the Settlement Amount shall equal
Party B's Loss (whether positive or negative and
without reference to any Unpaid Amounts) for the
relevant Terminated Transaction or group of
Terminated Transactions.
(C) Party A may obtain Market Quotations, and if Party B requests
Party A in writing to obtain Market Quotations, Party A shall
use its reasonable efforts to do so before the Latest
Settlement Amount Determination Day.
(D) If the Settlement Amount is a negative number, Section
6(e)(i)(3) shall be deleted in its entirety and replaced with
the following:
"(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, (I) Party B shall pay to Party A
an amount equal to the absolute value of the Settlement Amount
in respect of the Terminated Transactions, (II) Party B shall
pay to Party A the Termination Currency Equivalent of the
Unpaid Amounts owing to Party A and (III) Party A shall pay to
Party B the Termination Currency Equivalent of the Unpaid
Amounts owing to Party B; provided, however, that (x) the
amounts payable under the immediately preceding clauses (II)
and (III) shall be subject to netting in accordance with
Section 2(c) of this Agreement and (y) notwithstanding any
other provision of this Agreement, any amount payable by Party
A under the immediately preceding clause (III) shall not be
netted-off against any amount payable by Party B under the
immediately preceding clause (I)."
(E) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market
Quotations from Approved Replacements remain capable
of becoming legally binding upon acceptance, Party B
shall be entitled to accept only the lowest of such
Market Quotations (for the avoidance of doubt, the
lowest of such Market Quotations shall be the lowest
Market Quotation of such Market Quotations expressed
as a positive number or, if any of such Market
Quotations is expressed as a negative number, the
Market Quotation expressed as a negative number with
the largest absolute value).
(ii) The Second Method will apply.
(g) "Termination Currency" means USD.
(h) Additional Termination Events. Additional Termination Events will apply as
provided in Part 5(c).
Part 2. Tax Matters.
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(ii) Payee Representations. For the purpose of Section 3(f) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(b) Tax Provisions.
(i) Indemnifiable Tax. Notwithstanding the definition of "Indemnifiable
Tax" in Section 14 of this Agreement, all Taxes in relation to
payments by Party A shall be Indemnifiable Taxes unless (i) such
Taxes are assessed directly against Party B and not by deduction or
withholding by Party A or (ii) arise as a result of a Change in Tax
Law (in which case such Tax shall be an Indemnifiable Tax only if
such Tax satisfies the definition of Indemnifiable Tax provided in
Section 14). In relation to payments by Party B, no Tax shall be an
Indemnifiable Tax, unless the Tax is due to a Change in Tax Law and
otherwise satisfies the definition of Indemnifiable Tax provided in
Section 14.
Part 3. Agreement to Deliver Documents.
(a) For the purpose of Section 4(a)(i), tax forms, documents, or certificates
to be delivered are:
Party
required Form/Document/ Date by which to
to deliver Certificate be delivered
document
Party A Any form or document required or Promptly upon reasonable demand
reasonably requested to allow by Party B.
Party B to make payments under
the Agreement without any
deduction or withholding for or
on account of any Tax, or with
such deduction or withholding at
a reduced rate.
Party B (i) A correct, complete and duly In each case (a) upon entering
executed IRS Form W-9 (or any into this Agreement, provided
successor thereto) of the Trust however, with respect to (i),
that eliminates U.S. federal Party B shall apply for the
withholding and backup employer identification number
withholding tax on payments of the Trust promptly upon
under this Agreement, (ii) if entering into this Agreement
requested by Party A, a correct, and deliver the related
complete and executed Form correct, complete and duly
W-8IMY, unless the delivery of executed IRS Form W-9 promptly
such form is not permitted under upon receipt, and in any event,
U.S. federal income tax law, and no later than the first Payment
(iii) a correct, complete and Date of this Transaction; (b)
executed IRS Form ▇-▇, ▇-▇▇▇▇, in the case of a W-8ECI,
W-8ECI, or W-8IMY of the Trust W-8IMY, and W-8BEN that does
(with attachments) (as not include a U.S. taxpayer
appropriate) from each identification number in line
Certificateholder that is not an 6, before December 31 of each
"exempt recipient" as that term third succeeding calendar year,
is defined in Treasury (c) promptly upon reasonable
regulations section demand by Party A, and (d)
1.6049-4(c)(ii), that eliminates promptly upon learning that any
U.S. federal withholding and such Form previously provided
backup withholding tax on by Party B has become obsolete
payments under this Agreement. or incorrect.
(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:
Covered by
Party required Form/Document/ Date by which to Section 3(d)
to deliver Certificate be delivered Representa-
document tion
Party A and Any documents reasonably Upon the execution and Yes
Party B required by the receiving delivery of this
party to evidence the Agreement
party to evidence the
authority of the
delivering party or its
Credit Support Provider,
if any, for it to execute
and deliver the
Agreement, this
Confirmation, and any
Credit Support Documents
to which it is a party,
and to evidence the
authority of the
delivering party or its
Credit Support Provider
to perform its
obligations under the
Agreement, this
Confirmation and any
Credit Support Document,
as the case may be
Party A and A certificate of an Upon the execution and Yes
Party B authorized officer of the delivery of this
party, as to the Agreement
incumbency and authority
of the respective officers
of the party signing the
Agreement, this
Confirmation, and any
relevant Credit Support
Document, as the case may
be
Party A An opinion of counsel to Upon the execution and No
Party A reasonably delivery of this
satisfactory to Party B. Agreement
Party B An opinion of counsel to Upon the execution and No
Party B reasonably delivery of this Agreement
satisfactory to Party A.
Party B An executed copy of the Within 30 days after the No
Base Agreement date of this Agreement.
Part 4. Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇(▇▇) ▇▇▇ ▇▇▇▇▇
Phone: ▇▇(▇▇) ▇▇▇ ▇▇▇▇▇
(For all purposes)
Address for notices or communications to Party B:
Address: ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager - BCAP 2006-AA2
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document.
Party A: The Credit Support Annex, and any guarantee in support of
Party A's obligations under this Agreement.
Party B: The Credit Support Annex, solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support Annex.
(g) Credit Support Provider.
Party A: The guarantor under any guarantee in support of Party A's
obligations under this Agreement.
Party B: None.
(h) Governing Law. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole
(including any claim or controversy arising out of or relating to this
Agreement), without regard to the conflict of law provisions thereof other
than New York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting of Payments. The parties agree that subparagraph (ii) of Section
2(c) will apply to each Transaction hereunder.
(j) Affiliate. "Affiliate" shall have the meaning assigned thereto in Section
14; provided, however, that Party B shall be deemed to have no Affiliates
for purposes of this Agreement, including for purposes of Section
6(b)(ii).
Part 5. Others Provisions.
(a) Definitions. Unless otherwise specified in a Confirmation, this
Agreement and each Transaction under this Agreement are subject to
the 2000 ISDA Definitions as published and copyrighted in 2000 by
the International Swaps and Derivatives Association, Inc. (the
"Definitions"), and will be governed in all relevant respects by
the provisions set forth in the Definitions, without regard to any
amendment to the Definitions subsequent to the date hereof. The
provisions of the Definitions are hereby incorporated by reference
in and shall be deemed a part of this Agreement, except that (i)
references in the Definitions to a "Swap Transaction" shall be
deemed references to a "Transaction" for purposes of this
Agreement, and (ii) references to a "Transaction" in this
Agreement shall be deemed references to a "Swap Transaction" for
purposes of the Definitions. Each term capitalized but not defined
in this Agreement shall have the meaning assigned thereto in the
Base Agreement.
(b) Amendments to ISDA Master Agreement.
(i) Single Agreement. Section 1(c) is hereby amended by the adding the
words "including, for the avoidance of doubt, the Credit Support
Annex" after the words "Master Agreement".
(ii) Change of Account. Section 2(b) is hereby amended by the addition of
the following after the word "delivery" in the first line thereof:
"to another account in the same legal and tax jurisdiction as the
original account".
(iv) Representations. Section 3 is hereby amended by adding at the end
thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into
that Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication
(written or oral) of the other party as investment
advice or as a recommendation to enter into that
Transaction, it being understood that information and
explanations related to the terms and conditions of a
Transaction will not be considered investment advice or
a recommendation to enter into that Transaction. No
communication (written or oral) received from the other
party will be deemed to be an assurance or guarantee as
to the expected results of that Transaction.
(2) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and risks
of that Transaction. It is also capable of assuming, and
assumes, the risks of that Transaction.
(3) Purpose. It is entering into the Transaction for the
purposes of managing its borrowings or investments,
hedging its underlying assets or liabilities or in
connection with a line of business.
(4) Status of Parties. The other party is not acting as
fiduciary for or advisor to it in respect of the
Transaction.
(5) Eligible Contract Participant. It is an "eligible
contract participant" as defined in Section 1(a)(12) of
the Commodity Exchange Act, as amended."
(v) Transfer to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by deleting the words "or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party."
(vi) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in
the second line of subparagraph (i) thereof the word "non-" and (ii)
deleting the final paragraph thereof.
(c) Additional Termination Events. The following Additional Termination Events
will apply:
(i) First Rating Trigger Collateral. If (A) it is not the case that a
▇▇▇▇▇'▇ Second Trigger Ratings Event has occurred and been
continuing for 30 or more Local Business Days and (B) Party A has
failed to comply with or perform any obligation to be complied
with or performed by Party A in accordance with the Credit
Support Annex, then an Additional Termination Event shall have
occurred with respect to Party A and Party A shall be the sole
Affected Party with respect to such Additional Termination Event.
(ii) Second Rating Trigger Replacement. If (A) a Required Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local Business Days and (B) (i) at least one Eligible Replacement
has made a Firm Offer to be the transferee of all of Party A's
rights and obligations under this Agreement (and such Firm Offer
remains an offer that will become legally binding upon such
Eligible Replacement upon acceptance by the offeree) and/or (ii)
an Eligible Guarantor has made a Firm Offer to provide an
Eligible Guarantee (and such Firm Offer remains an offer that
will become legally binding upon such Eligible Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party A and
Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
(iii) Amendment of Base Agreement. If, without the prior written
consent of Party A where such consent is required under the Base
Agreement, an amendment is made to the Base Agreement which
amendment could reasonably be expected to have a material adverse
effect on the interests of Party A (excluding, for the avoidance
of doubt, any amendment to the Base Agreement that is entered
into solely for the purpose of appointing a successor servicer,
master servicer, securities administrator, trustee or other
service provider) under this Agreement, an Additional Termination
Event shall have occurred with respect to Party B and Party B
shall be the sole Affected Party with respect to such Additional
Termination Event.
(iv) Termination of Trust. If, the Trust is terminated pursuant to the
Base Agreement and all rated certificates or notes, as
applicable, have been paid in accordance with the terms of the
Base Agreement, an Additional Termination Event shall have
occurred with respect to Party B and Party B shall be the sole
Affected Party with respect to such Additional Termination Event.
(v) Securitization Unwind. If a Securitization Unwind (as hereinafter
defined) occurs, an Additional Termination Event shall have
occurred with respect to Party B and Party B shall be the sole
Affected Party with respect to such Additional Termination Event.
The Early Termination Date in respect of such Additional
Termination Event shall not be earlier than the 10th day of the
month of the Distribution Date upon which final distribution on
the Certificates will be made. As used herein, "Securitization
Unwind" means notice of the requisite amount of a party's
intention to exercise its option to purchase the underlying
mortgage loans pursuant the Base Agreement is given by the
Trustee or Securities Administrator to certificateholders or
noteholders, as applicable, pursuant to the Base Agreement.
(d) Required Ratings Downgrade Event. In the event that no Relevant Entity has
credit ratings at least equal to the Required Ratings Threshold of each
relevant Swap Rating Agency (such event, a "Required Ratings Downgrade
Event"), then Party A shall, as soon as reasonably practicable and so long
as a Required Ratings Downgrade Event is in effect, at its own expense,
use commercially reasonable efforts to procure either (A) a Permitted
Transfer or (B) an Eligible Guarantee from an Eligible Guarantor.
(e) Transfers.
(i) Section 7 is hereby amended to read in its entirety as follows:
"Subject to Section 6(b)(ii), neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security
or otherwise) as a whole or in part any of its rights, obligations
or interests under the Agreement or any Transaction without (a) the
prior written consent of the other party and (b) satisfaction of the
Rating Agency Condition, except that:
(a) a party may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation with, or merger with or into,
or transfer of all or substantially all its assets to, another
entity (but without prejudice to any other right or remedy
under this Agreement);
(b) a party may make such a transfer of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e); and
(c) Party A may transfer or assign this Agreement to any Person,
including, without limitation, another of Party A's offices,
branches or affiliates (any such Person, office, branch or
affiliate, a "Transferee") on at least five Business Days'
prior written notice to Party B and the Securities
Administrator; provided that, with respect to this clause (c),
(A) as of the date of such transfer the Transferee will not be
required to withhold or deduct on account of a Tax from any
payments under this Agreement unless the Transferee will be
required to make payments of additional amounts pursuant to
Section 2(d)(i)(4) of this Agreement in respect of such Tax
(B) a Termination Event or Event of Default does not occur
under this Agreement as a result of such transfer; (C) such
notice is accompanied by a written instrument pursuant to
which the Transferee acquires and assumes the rights and
obligations of Party A so transferred; (D) Party A will be
responsible for any costs or expenses incurred in connection
with such transfer and (E) Party A obtains in respect of such
transfer a written acknowledgement of satisfaction of the
Rating Agency Condition (except for ▇▇▇▇▇'▇). Party B will
execute such documentation as is reasonably deemed necessary
by Party A for the effectuation of any such transfer."
(ii) If an Eligible Replacement has made a Firm Offer (which remains an
offer that will become legally binding upon acceptance by Party B)
to be the transferee pursuant to a Permitted Transfer, Party B
shall, at Party A's written request and at Party A's expense, take
any reasonable steps required to be taken by Party B to effect such
transfer.
(iii) Upon any transfer of this Agreement, each of the transferee and the
transferor must be a "dealer in notional principal contracts" for
purposes of Treasury regulations section 1.1001-4(a).
(f) Non-Recourse. Party A acknowledges and agree that, notwithstanding any
provision in this Agreement to the contrary, the obligations of Party B
hereunder are limited recourse obligations of Party B, payable solely from
the Trust and the proceeds thereof, in accordance with the priority of
payments and other terms of the Base Agreement and that Party A will not
have any recourse to any of the directors, officers, employees,
shareholders or affiliates of the Party B with respect to any claims,
losses, damages, liabilities, indemnities or other obligations in
connection with any transactions contemplated hereby. In the event that
the Trust and the proceeds thereof, should be insufficient to satisfy all
claims outstanding and following the realization of the account held by
the Trust and the proceeds thereof, any claims against or obligations of
Party B under the ISDA Master Agreement or any other confirmation
thereunder still outstanding shall be extinguished and thereafter not
revive. The Securities Administrator shall not have liability for any
failure or delay in making a payment hereunder to Party A due to any
failure or delay in receiving amounts in the account held by the Trust
from the Trust created pursuant to the Base Agreement. This provision will
survive the termination of this Agreement.
(g) Rating Agency Notifications. Notwithstanding any other provision of this
Agreement, no Early Termination Date shall be effectively designated
hereunder by Party B and no transfer of any rights or obligations under
this Agreement shall be made by either party unless each Swap Rating
Agency has been given prior written notice of such designation or
transfer.
(h) No Set-off. Except as expressly provided for in Section 2(c), Section 6 or
Part 1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net, recoup
or otherwise withhold or suspend or condition payment or performance of
any obligation between it and the other party hereunder against any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence: "The
amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.".
(i) Amendment. Notwithstanding any provision to the contrary in this
Agreement, no amendment of either this Agreement or any Transaction under
this Agreement shall be permitted by either party unless each of the Swap
Rating Agencies has been provided prior written notice of the same and
each relevant Swap Rating Agency (other than Moody's) confirms in writing
(including by facsimile transmission) that it will not downgrade, withdraw
or otherwise modify its then-current ratings of the Certificates or the
Notes.
(j) Notice of Certain Events or Circumstances. Each Party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or both
would constitute) an Event of Default or Termination Event with respect to
such party, promptly to give the other Party and to each Swap Rating
Agency notice of such event or condition; provided that failure to provide
notice of such event or condition pursuant to this Part 5(j) shall not
constitute an Event of Default or a Termination Event.
(k) Proceedings. No Relevant Entity shall institute against, or cause any
other person to institute against, or join any other person in instituting
against Party B, the Trust, or the trust formed pursuant to the Base
Agreement, in any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of the
Certificates and any Notes; provided, however, that nothing will preclude,
or be deemed to stop, Party A (i) from taking any action prior to the
expiration of the aforementioned one year and one day period, or if longer
the applicable preference period then in effect, in (A) any case or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar proceeding.
This provision will survive the termination of this Agreement.
(l) Securities Administrator Liability Limitations. It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed by
▇▇▇▇▇ Fargo Bank, National Association ("X") not in its individual
capacity, but solely as Securities Administrator under the Base Agreement
in the exercise of the powers and authority conferred and invested in it
thereunder; (b) X has been directed pursuant to the Base Agreement to
enter into this Agreement and to perform its obligations hereunder; (c)
each of the representations, undertakings and agreements herein made on
behalf of the Trust is made and intended not as personal representations
of the Securities Administrator but is made and intended for the purpose
of binding only the Trust; and (d) under no circumstances shall X in its
individual capacity be personally liable for any payments hereunder or for
the breach or failure of any obligation, representation, warranty or
covenant made or undertaken under this Agreement.
(m) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall
be held to be invalid or unenforceable (in whole or in part) in any
respect, the remaining terms, provisions, covenants, and conditions hereof
shall continue in full force and effect as if this Agreement had been
executed with the invalid or unenforceable portion eliminated, so long as
this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter of
this Agreement and the deletion of such portion of this Agreement will not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used in or
in connection with any such Section) shall be so held to be invalid or
unenforceable.
The parties shall endeavor to engage in good faith negotiations to replace
any invalid or unenforceable term, provision, covenant or condition with a
valid or enforceable term, provision, covenant or condition, the economic
effect of which comes as close as possible to that of the invalid or
unenforceable term, provision, covenant or condition.
(n) Consent to Recording. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any
and all communications between trading, marketing, and operations
personnel of the parties and their Affiliates, waives any further notice
of such monitoring or recording, and agrees to notify such personnel of
such monitoring or recording.
(o) Waiver of Jury Trial. Each party waives any right it may have to a trial
by jury in respect of any in respect of any suit, action or proceeding
relating to this Agreement or any Credit Support Document.
(p) Regarding Party A. Party B acknowledges and agrees that Party A, in its
capacity as swap provider, has had and will have no involvement in and,
accordingly Party A accepts no responsibility for: (i) the establishment,
structure, or choice of assets of Party B; (ii) the selection of any
person performing services for or acting on behalf of Party B; (iii) the
selection of Party A as the Counterparty; (iv) the terms of the
Certificates; (v) the preparation of or passing on the disclosure and
other information (other than disclosure and information furnished by
Party A) contained in any offering circular for the Certificates, the Base
Agreement, or any other agreements or documents used by Party B or any
other party in connection with the marketing and sale of the Certificates;
(vi) the ongoing operations and administration of Party B, including the
furnishing of any information to Party B which is not specifically
required under this Agreement; or (vii) any other aspect of Party B's
existence.
(q) Additional Definitions.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Base Agreement. In addition, as
used in this Agreement, the following terms shall have the meanings set
forth below, unless the context clearly requires otherwise:
"Approved Ratings Threshold" means each of the S&P Approved Ratings
Threshold and the Moody's First Trigger Ratings Threshold.
"Approved Replacement" means, with respect to a Market Quotation, an
entity making such Market Quotation, which entity would satisfy
conditions (a), (b), (c) and (e) of the definition of Permitted
Transfer (as determined by Party B in its sole discretion, acting in
a commercially reasonable manner) if such entity were a Transferee,
as defined in the definition of Permitted Transfer.
"Derivative Provider Trigger Event" means (i) an Event of Default
with respect to which Party A is a Defaulting Party, (ii) a
Termination Event (other than Illegality or Tax Event) with respect
to which Party A is the sole Affected Party or (iii) an Additional
Termination Event with respect to which Party A is the sole Affected
Party.
"Eligible Guarantee" means an unconditional and irrevocable
guarantee of all present and future obligations (for the avoidance
of doubt, not limited to payment obligations) of Party A or an
Eligible Replacement to Party B under this Agreement that is
provided by an Eligible Guarantor as principal debtor rather than
surety and that is directly enforceable by Party B, the form and
substance of which guarantee are subject to the Rating Agency
Condition, and either (A) a law firm has given a legal opinion
confirming that none of the guarantor's payments to Party B under
such guarantee will be subject to Tax collected by withholding or
(B) such guarantee provides that, in the event that any of such
guarantor's payments to Party B are subject to Tax collected by
withholding, such guarantor is required to pay such additional
amount as is necessary to ensure that the net amount actually
received by Party B (free and clear of any Tax collected by
withholding) will equal the full amount Party B would have received
had no such withholding been required.
"Eligible Guarantor" means an entity that (A) has credit ratings at
least equal to the Approved Ratings Threshold or (B) has credit
ratings at least equal to the Required Ratings Threshold, provided,
for the avoidance of doubt, that an Eligible Guarantee of an
Eligible Guarantor with credit ratings below the Approved Ratings
Threshold will not cause a Collateral Event (as defined in the
Credit Support Annex) not to occur or continue.
"Eligible Replacement" means an entity (A) that has credit ratings
at least equal to the Approved Ratings Threshold, (B) has credit
ratings at least equal to the Required Ratings Threshold, provided,
for the avoidance of doubt, that an Eligible Guarantee of an
Eligible Guarantor with credit ratings below the Approved Ratings
Threshold will not cause a Collateral Event (as defined in the
Credit Support Annex) not to occur or continue, or (C) the present
and future obligations (for the avoidance of doubt, not limited to
payment obligations) of which entity to Party B under this Agreement
(or any replacement agreement, as applicable) are guaranteed
pursuant to an Eligible Guarantee provided by an Eligible Guarantor.
"Firm Offer" means (A) with respect to an Eligible Replacement, a
quotation from such Eligible Replacement (i) in an amount equal to
the actual amount payable by or to Party B in consideration of an
agreement between Party B and such Eligible Replacement to replace
Party A as the counterparty to this Agreement by way of novation or,
if such novation is not possible, an agreement between Party B and
such Eligible Replacement to enter into a Replacement Transaction
(assuming that all Transactions hereunder become Terminated
Transactions), and (ii) that constitutes an offer by such Eligible
Replacement to replace Party A as the counterparty to this Agreement
or enter a Replacement Transaction that will become legally binding
upon such Eligible Replacement upon acceptance by Party B, and (B)
with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally
binding upon such Eligible Guarantor upon acceptance by the offeree.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto.
"Moody's First Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A2" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-1", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A1".
"Moody's Second Trigger Ratings Event" means that no Relevant Entity
has credit ratings from Moody's at least equal to the Moody's Second
Trigger Rating Threshold.
"Moody's Second Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A3" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-2", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A3".
"Permitted Transfer" means a transfer by novation by Party A to a
transferee (the "Transferee") of all, but not less than all, of
Party A's rights, liabilities, duties and obligations under this
Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible
Replacement that is a recognized dealer in interest rate swaps, (b)
as of the date of such transfer the Transferee would not be required
to withhold or deduct on account of Tax from any payments under this
Agreement or would be required to gross up for such Tax under
Section 2(d)(i)(4), (c) an Event of Default or Termination Event
would not occur as a result of such transfer, (d) Party B has
consented in writing to the transfer, such consent not to be
unreasonably withheld, (e) the transfer would not give rise to a
taxable event or any other adverse Tax consequences to Party B or
its interest holders, as determined by Party B in its sole
discretion, (f) pursuant to a written instrument (the "Transfer
Agreement"), the Transferee acquires and assumes all rights and
obligations of Party A under the Agreement and the relevant
Transaction, (g) Party B shall have determined, in its sole
discretion, acting in a commercially reasonable manner, that such
Transfer Agreement is effective to transfer to the Transferee all,
but not less than all, of Party A's rights and obligations under the
Agreement and all relevant Transactions; (h) Party A will be
responsible for any costs or expenses incurred in connection with
such transfer (including any replacement cost of entering into a
replacement transaction); (i) Moody's has been given prior written
notice of such transfer and the Rating Agency Condition (except for
▇▇▇▇▇'▇) is satisfied; and (j) such transfer otherwise complies with
the terms of the Base Agreement.
"Rating Agency Condition" means, with respect to any particular
proposed act or omission to act hereunder that the party acting or
failing to act must consult with each of the relevant Swap Rating
Agencies and receive from each such Swap Rating Agency a prior
written confirmation that the proposed action or inaction would not
cause a downgrade or withdrawal of the then-current rating of any
Certificates or Notes; provided, however, with respect to Moody's,
the Rating Agency Condition will be satisfied upon the delivery of
written notice to Moody's of such proposed act or omission to act
where consultation with each of the relevant Swap Rating Agencies is
required.
"Relevant Entity" means Party A and, to the extent applicable, a
guarantor under an Eligible Guarantee.
"Replacement Transaction" means, with respect to any Terminated
Transaction or group of Terminated Transactions, a transaction or
group of transactions that (i) would have the effect of preserving
for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that Date, and (ii) has terms which are substantially
the same as this Agreement, including, without limitation, rating
triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating to
Transactions that are not Terminated Transaction, as determined by
Party B in its sole discretion, acting in a commercially reasonable
manner.
"Required Ratings Downgrade Event" shall have the meaning assigned
thereto in Part 5(d).
"Required Ratings Threshold" means each of the S&P Required Ratings
Threshold and the Moody's Second Trigger Ratings Threshold.
"S&P" means Standard & Poor's Rating Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"S&P Approved Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a
short-term unsecured and unsubordinated debt rating from S&P of
"A-1", or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of "A+".
"S&P Required Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a
long-term unsecured and unsubordinated debt rating from S&P of
"BBB-".
"Swap Rating Agencies" means, with respect to any date of
determination, each of S&P and Moody's, but only to the extent that
each such rating agency is then providing a rating for any of the
certificates or notes issued under the Base Agreement.
[Remainder of this page intentionally left blank.]
The time of dealing will be confirmed by Party A upon written request. Barclays
is regulated by the Financial Services Authority. Barclays is acting for its own
account in respect of this Transaction.
Please confirm that the foregoing correctly sets forth all the terms and
conditions of our agreement with respect to the Transaction by responding within
three (3) Business Days by promptly signing in the space provided below and both
(i) faxing the signed copy to Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operations,
Fax ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6857, Tel ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6904/6965, and (ii) mailing
the signed copy to Barclays Bank PLC, 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention of Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operation.
Your failure to respond within such period shall not affect the validity or
enforceability of the Transaction against you. This facsimile shall be the only
documentation in respect of the Transaction and accordingly no hard copy
versions of this Confirmation for this Transaction shall be provided unless
Party B requests such a copy.
For and on behalf of For and on behalf of
BARCLAYS BANK PLC BCAP LLC Trust 2006-AA2
By: ▇▇▇▇▇ Fargo Bank, National
Association, not individually, but
solely as Securities Administrator
Name: /s/ ▇▇▇▇ ▇▇ Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: ▇▇▇▇ ▇▇ Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: Authorised Signatory Date: Vice President
Barclays Bank PLC and its Affiliates, including Barclays Capital Inc., may share
with each other information, including non-public credit information, concerning
its clients and prospective clients. If you do not want such information to be
shared, you must write to the Director of Compliance, Barclays Bank PLC, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
SCHEDULE I
From and including To but excluding Notional Amount (USD)
------------------ ---------------- ---------------------
30-Nov-06 25-Dec-06 1,209,872,028.20
25-Dec-06 25-Jan-07 1,181,287,535.54
25-Jan-07 25-Feb-07 1,153,224,151.90
25-Feb-07 25-Mar-07 1,125,827,010.23
25-Mar-07 25-Apr-07 1,099,080,301.65
25-Apr-07 25-May-07 1,072,968,592.28
25-May-07 25-Jun-07 1,047,476,814.30
25-Jun-07 25-Jul-07 1,022,590,257.30
25-Jul-07 25-Aug-07 998,294,559.79
25-Aug-07 25-Sep-07 974,575,700.94
25-Sep-07 25-Oct-07 951,419,992.49
25-Oct-07 25-Nov-07 928,814,070.86
25-Nov-07 25-Dec-07 906,744,889.47
25-Dec-07 25-Jan-08 885,199,711.20
25-Jan-08 25-Feb-08 864,166,101.07
25-Feb-08 25-Mar-08 843,631,919.07
25-Mar-08 25-Apr-08 823,585,313.16
25-Apr-08 25-May-08 804,014,712.44
25-May-08 25-Jun-08 784,908,820.50
25-Jun-08 25-Jul-08 766,256,608.90
25-Jul-08 25-Aug-08 748,047,310.80
25-Aug-08 25-Sep-08 730,270,414.78
25-Sep-08 25-Oct-08 712,915,658.78
25-Oct-08 25-Nov-08 695,973,024.16
25-Nov-08 25-Dec-08 679,432,729.96
25-Dec-08 25-Jan-09 663,285,227.27
25-Jan-09 25-Feb-09 647,521,193.67
25-Feb-09 25-Mar-09 632,131,527.93
25-Mar-09 25-Apr-09 616,953,769.63
25-Apr-09 25-May-09 602,290,032.35
25-May-09 25-Jun-09 587,974,548.13
25-Jun-09 25-Jul-09 573,999,051.18
25-Jul-09 25-Aug-09 559,559,258.73
25-Aug-09 25-Sep-09 545,189,279.98
25-Sep-09 25-Oct-09 519,250,347.21
25-Oct-09 25-Nov-09 494,772,050.11
25-Nov-09 25-Dec-09 483,011,589.74
25-Dec-09 25-Jan-10 471,530,447.06
25-Jan-10 25-Feb-10 460,321,992.15
25-Feb-10 25-Mar-10 449,379,752.37
25-Mar-10 25-Apr-10 438,697,408.66
25-Apr-10 25-May-10 428,268,791.88
25-May-10 25-Jun-10 418,087,879.25
25-Jun-10 25-Jul-10 408,148,790.90
25-Jul-10 25-Aug-10 398,445,786.46
25-Aug-10 25-Sep-10 388,973,261.76
25-Sep-10 25-Oct-10 379,725,745.58
25-Oct-10 25-Nov-10 370,697,896.55
25-Nov-10 25-Dec-10 361,884,499.99
25-Dec-10 25-Jan-11 353,280,464.99
25-Jan-11 25-Feb-11 344,880,821.41
25-Feb-11 25-Mar-11 336,680,717.05
25-Mar-11 25-Apr-11 328,675,414.84
25-Apr-11 25-May-11 320,860,290.12
25-May-11 25-Jun-11 313,230,827.94
25-Jun-11 25-Jul-11 305,705,871.64
25-Jul-11 25-Aug-11 298,348,968.06
25-Aug-11 25-Sep-11 277,278,210.42
25-Sep-11 25-Oct-11 210,523,972.82
25-Oct-11 25-Nov-11 107,980,964.47
25-Nov-11 25-Dec-11 69,420,426.08
25-Dec-11 25-Jan-12 66,310,179.65
25-Jan-12 25-Feb-12 64,732,917.56
25-Feb-12 25-Mar-12 63,193,137.11
25-Mar-12 25-Apr-12 61,689,948.22
25-Apr-12 25-May-12 60,222,481.97
25-May-12 25-Jun-12 58,789,890.04
25-Jun-12 25-Jul-12 57,391,344.26
25-Jul-12 25-Aug-12 56,026,036.10
25-Aug-12 25-Sep-12 54,693,176.24
25-Sep-12 25-Oct-12 53,391,994.06
25-Oct-12 25-Nov-12 52,121,737.28
25-Nov-12 25-Dec-12 50,881,671.42
25-Dec-12 25-Jan-13 49,671,079.48
25-Jan-13 25-Feb-13 48,489,261.46
25-Feb-13 25-Mar-13 47,335,533.96
25-Mar-13 25-Apr-13 46,209,229.83
25-Apr-13 25-May-13 45,109,697.73
25-May-13 25-Jun-13 44,036,301.80
25-Jun-13 25-Jul-13 42,988,421.27
25-Jul-13 25-Aug-13 41,965,450.09
25-Aug-13 25-Sep-13 40,813,641.60
25-Sep-13 25-Oct-13 32,193,985.19
25-Oct-13 25-Nov-13 4,806,589.91
25-Nov-13 25-Dec-13 68,361.32
Annex A
Paragraph 13 of the Credit Support Annex
ANNEX A
ISDA(R)
CREDIT SUPPORT ANNEX
to the Schedule to the
ISDA Master Agreement
dated as of November 30, 2006 between
Barclays Bank PLC (hereinafter referred to as "Party A" or "Pledgor")
and
▇▇▇▇▇ Fargo Bank, National Association, not individually, but solely as
securities administrator (the "Securities Administrator") for BCAP LLC Trust
2006-AA2, Mortgage Pass-Through Certificates, Series 2006-AA2 (the "Trust")
(hereinafter referred to as "Party B" or "Secured Party").
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Paragraph 13. Elections and Variables.
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes the following additional obligations:
With respect to Party A: not applicable.
With respect to Party B: not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a)
as amended (I) by deleting the words "upon a demand made by
the Secured Party on or promptly following a Valuation Date"
and inserting in lieu thereof the words "not later than the
close of business on the next Local Business Day following a
Valuation Date" and (II) by deleting in its entirety the
sentence beginning "Unless otherwise specified in Paragraph
13" and ending "(ii) the Value as of that Valuation Date of
all Posted Credit Support held by the Secured Party." and
inserting in lieu thereof the following:
The "Delivery Amount" applicable to the Pledgor for any
Valuation Date will equal the greatest of
(1) the amount by which (a) the S&P Credit Support Amount
for such Valuation Date exceeds (b) the S&P Value as of
such Valuation Date of all Posted Credit Support held by
the Secured Party,
(2) the amount by which (a) the ▇▇▇▇▇'▇ First Trigger Credit
Support Amount for such Valuation Date exceeds (b) the
▇▇▇▇▇'▇ First Trigger Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party, and
(3) the amount by which (a) the ▇▇▇▇▇'▇ Second Trigger
Credit Support Amount for such Valuation Date exceeds
(b) the ▇▇▇▇▇'▇ Second Trigger Value as of such
Valuation Date of all Posted Credit Support held by the
Secured Party.
(B) "Return Amount" has the meaning specified in Paragraph 3(b) as
amended by deleting in its entirety the sentence beginning
"Unless otherwise specified in Paragraph 13" and ending "(ii)
the Credit Support Amount." and inserting in lieu thereof the
following:
The "Return Amount" applicable to the Secured Party for any
Valuation Date will equal the least of
(1) the amount by which (a) the S&P Value as of such
Valuation Date of all Posted Credit Support held by the
Secured Party exceeds (b) the S&P Credit Support Amount
for such Valuation Date,
(2) the amount by which (a) the ▇▇▇▇▇'▇ First Trigger Value
as of such Valuation Date of all Posted Credit Support
held by the Secured Party exceeds (b) the ▇▇▇▇▇'▇ First
Trigger Credit Support Amount for such Valuation Date,
and
(3) the amount by which (a) the ▇▇▇▇▇'▇ Second Trigger Value
as of such Valuation Date of all Posted Credit Support
held by the Secured Party exceeds (b) the ▇▇▇▇▇'▇ Second
Trigger Credit Support Amount for such Valuation Date.
(C) "Credit Support Amount" shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any
Valuation Date, reference shall be made to the S&P Credit
Support Amount, the ▇▇▇▇▇'▇ First Trigger Credit Support
Amount, or the ▇▇▇▇▇'▇ Second Trigger Credit Support Amount,
in each case for such Valuation Date, as provided in
Paragraphs 13(b)(i)(A) and 13(b)(i)(B), above.
(ii) Eligible Collateral.
On any date, the following items will qualify as "Eligible
Collateral" (for the avoidance of doubt, all Eligible Collateral to
be denominated in USD):
▇▇▇▇▇'▇ ▇▇▇▇▇'▇
First Trigger Second Trigger
S&P Valuation Valuation Valuation
Collateral Percentage Percentage Percentage
---------- ------------- ------------- --------------
(A) Cash 100% 100% 100%
(B) Fixed-rate negotiable debt obligations issued
by the U.S. Treasury Department having a
remaining maturity on such date of not more 98.5% 100% 100%
than one year
(C) Fixed-rate negotiable debt obligations issued by
the U.S. Treasury Department having a remaining
maturity on such date of more than one year but 91.0% 100% 94%
not more than ten years
(D) Fixed-rate negotiable debt obligations issued by
the U.S. Treasury Department having a remaining
maturity on such date of more than ten years 88.0% 100% 88%
Notwithstanding the Valuation Percentages set forth in the preceding
table, upon the first Transfer of Eligible Collateral under this Annex,
the Pledgor may, at the Pledgor's expense, agree the Valuation Percentages
in relation to (B) through (D) above with the relevant rating agency (to
the extent such rating agency is providing a rating for the Certificates),
and upon such agreement as evidenced in writing, such Valuation
Percentages shall supersede those set forth in the preceding table.
(iii) Other Eligible Support.
The following items will qualify as "Other Eligible Support" for the
party specified:
Such Other Eligible Support as the Pledgor may designate; provided,
at the expense of the Pledgor, the prior written consent of the
relevant rating agency (to the extent such rating agency is
providing a rating for the Certificates) shall have been obtained.
For the avoidance of doubt, there are no items that qualify as Other
Eligible Support as of the date of this Annex.
(iv) Threshold.
(A) "Independent Amount" means zero with respect to Party A and
Party B.
(B) "Threshold" means, with respect to Party A and any Valuation
Date, zero if (i) no Relevant Entity has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold or
(ii) a Collateral Event has occurred and has been continuing
(x) for at least 30 days or (y) since this Annex was executed;
otherwise, infinity.
"Threshold" means, with respect to Party B and any Valuation
Date, infinity.
(C) "Minimum Transfer Amount" means USD 100,000 with respect to
Party A and Party B; provided, however, that if the aggregate
Class Certificate Balance of the Certificates rated by S&P
ceases to be more than USD 50,000,000, "Minimum Transfer
Amount" means USD 50,000, and provided further, with respect
to the Secured Party at any time when the Secured Party is a
Defaulting Party, "Minimum Transfer Amount" means zero.
(D) Rounding: The Delivery Amount and the Return Amount will not
be rounded.
(c) Valuation and Timing.
(i) "Valuation Agent" means Party A. The Valuation Agent's calculations
shall be made in accordance with standard market practices using
commonly accepted third party sources such as Bloomberg or Reuters.
(ii) "Valuation Date" means each Local Business Day.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided that
the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv) "Notification Time" means 11:00 a.m., New York time, on a Local
Business Day.
(v) External Verification. Notwithstanding anything to the contrary in
the definitions of Valuation Agent or Valuation Date, at any time at
which Party A (or, to the extent applicable, its Credit Support
Provider) does not have a long-term unsubordinated and unsecured
debt rating of at least "BBB+" from S&P, the Valuation Agent shall
(A) calculate the Secured Party's Exposure and the S&P Value of
Posted Credit Suppport on each Valuation Date based on internal
marks and (B) verify such calculations with external marks monthly
by obtaining on the last Local Business Day of each calendar month
two external marks for each Transaction to which this Annex relates
and for all Posted Credit Suport; such verification of the Secured
Party's Exposure shall be based on the higher of the two external
marks. Each external ▇▇▇▇ in respect of a Transaction shall be
obtained from an independent Reference Market-maker that would be
eligible and willing to enter into such Transaction in the absence
of the current derivative provider, provided that an external ▇▇▇▇
▇▇▇ not be obtained from the same Reference Market-maker more than
four times in any 12-month period. The Valuation Agent shall obtain
these external marks directly or through an independent third party,
in either case at no cost to Party B. The Valuation Agent shall
calculate on each Valuation Date (for purposes of this paragraph,
the last Local Business Day in each calendar month referred to above
shall be considered a Valuation Date) the Secured Party's Exposure
based on the greater of the Valuation Agent's internal marks and the
external marks received. If the S&P Value on any such Valuation Date
of all Posted Credit Support then held by the Secured Party is less
than the S&P Credit Support Amount on such Valuation Date (in each
case as determined pursuant to this paragraph), Party A shall,
within three Local Business Days of such Valuation Date, Transfer to
the Secured Party Eligible Credit Support having an S&P Value as of
the date of Transfer at least equal to such deficiency.
(vi) Notice to S&P. At any time at which neither Party A (nor, to the
extent applicable, its Credit Support Provider) has a long-term
unsubordinated and unsecured debt rating of at least "BBB+" from
S&P, the Valuation Agent shall provide to S&P not later than the
Notification Time on the Local Business Day following each Valuation
Date its calculations of the Secured Party's Exposure and the S&P
Value of any Eligible Credit Support or Posted Credit Support for
that Valuation Date. The Valuation Agent shall also provide to S&P
any external marks received pursuant to the preceding paragraph.
(d) Conditions Precedent and Secured Party's Rights and Remedies. The
following Termination Events will be a "Specified Condition" for the party
specified (that party being the Affected Party if the Termination Event
occurs with respect to that party): None.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. If specified here as applicable, then the Pledgor must
obtain the Secured Party's consent for any substitution pursuant to
Paragraph 4(d): Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m. New York time on the Local
Business Day following the date on which the notice of the dispute
is given under Paragraph 5.
(ii) Value. Notwithstanding anything to the contrary in Paragraph 12, for
the purpose of Paragraphs 5(i)(C) and 5(ii), the S&P Value, ▇▇▇▇▇'▇
First Trigger Value, and ▇▇▇▇▇'▇ Second Trigger Value, on any date,
of Eligible Collateral will be calculated as follows:
For Eligible Collateral comprised of Cash, the amount of such Cash.
For Eligible Collateral comprising securities, the sum of (A) the
product of (1)(x) the bid price at the Valuation Time for such
securities on the principal national securities exchange on which
such securities are listed, or (y) if such securities are not listed
on a national securities exchange, the bid price for such securities
quoted at the Valuation Time by any principal market maker for such
securities selected by the Valuation Agent, or (z) if no such bid
price is listed or quoted for such date, the bid price listed or
quoted (as the case may be) at the Valuation Time for the day next
preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and
(B) the accrued interest on such securities (except to the extent
Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or
included in the applicable price referred to in the immediately
preceding clause (A)) as of such date.
(iii) Alternative. The provisions of Paragraph 5 will apply; provided,
that the obligation of the appropriate party to deliver the
undisputed amount to the other party will not arise prior to the
time that would otherwise have applied to the Transfer pursuant to,
or deemed made, under Paragraph 3 if no dispute had arisen.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians.
Party B is not and will not be entitled to hold Posted Collateral.
Party B's Custodian will be entitled to hold Posted Collateral
pursuant to Paragraph 6(b); provided that the Custodian for Party B
shall be the same banking institution that acts as Securities
Administrator for the Certificates (as defined in the Master
Servicing and Trust Agreement) for Party B.
Initially, the Custodian for Party B is: to be advised in writing by
Party B to Party A.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will not
apply to Party B; therefore, Party B will not have any of the rights
specified in Paragraph 6(c)(i) or 6 (c)(ii); provided, however, that
the Securities Administrator shall invest Cash Posted Credit Support
in such investments as designated by Party A, with losses (net of
gains) incurred in respect of such investments to be for the account
of Party A; provided further, that such investments designated by
Party A shall be limited to money market funds rated "AAAm" or
"AAAm-G" by S&P and from which such invested Cash Posted Credit
Support may be withdrawn upon no more than 2 Local Business Day's
notice of a request for withdrawal.
(h) Distributions and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be the actual interest rate
earned on Posted Collateral in the form of Cash pursuant to
Paragraph 13(g)(ii).
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made on the second Local Business Day following the end of
each calendar month and on any other Local Business Day on which
Posted Collateral in the form of Cash is Transferred to the Pledgor
pursuant to Paragraph 3(b); provided, however, that the obligation
of Party B to Transfer any Interest Amount to Party A shall be
limited to the extent that Party B has earned and received such
funds and such funds are available to Party B.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). There are no additional representations by
either party.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time pursuant to Paragraph 13(b)(iii).
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time pursuant to Paragraph 13(b)(iii).
(k) Demands and Notices.All demands, specifications and notices under this
Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to or made
at the following addresses, or at such other address as the relevant party
may from time to time designate by giving notice (in accordance with the
terms of this paragraph) to the other party:
If to Party A:
▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, England
Attention: Swaps Documentation
Facsimile No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6858
Telephone No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6904
with a copy to:
General Counsel's ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices to Party A shall not be deemed effective unless delivered to
the London address set forth above.
If to Party B or Party B's Custodian, the address specified for Party B
pursuant to the Notices Section of this Agreement.
(l) Address for Transfers. Each Transfer hereunder shall be made to the
address specified below or to an address specified in writing from time to
time by the party to which such Transfer will be made.
If to Party A:
For Cash:
Barclays Bank PLC, NY
ABA #▇▇▇-▇▇▇-▇▇▇
F/O Barclays Swaps & Options Group NY
A/C #: 050019228
REF: Collateral
For Treasury Securities:
Bank of NYC/BBPLCLDN
ABA #▇▇▇-▇▇▇-▇▇▇
If to Party B:
▇▇▇▇▇ Fargo Bank, National Association
San Francisco, CA
ABA No.: 121 000 248
Account No.: ▇▇▇▇▇▇▇▇▇▇
Account Name: SAS Trust Clearing
FFC: 50971403, BCAP 2006-AA2 Posted Collateral Account
(m) Other Provisions.
(i) Collateral Account. The Secured Party shall cause any Custodian
appointed hereunder to open and maintain a segregated trust account
and to hold, record and identify all the Posted Collateral in such
segregated trust account and, subject to Paragraph 8(a), such
Posted Collateral shall at all times be and remain the property of
the Pledgor and shall at no time constitute the property of, or be
commingled with the property of, the Secured Party or the
Custodian.
(ii) Agreement as to Single Secured Party and Single Pledgor. Party A
and Party B hereby agree that, notwithstanding anything to the
contrary in this Annex, (a) the term "Secured Party" as used in
this Annex means only Party B, (b) the term "Pledgor" as used in
this Annex means only Party A, (c) only Party A makes the pledge
and grant in Paragraph 2, the acknowledgement in the final sentence
of Paragraph 8(a) and the representations in Paragraph 9.
(iii) Calculation of Value. Paragraph 4(c) is hereby amended by deleting
the word "Value" and inserting in lieu thereof "S&P Value, ▇▇▇▇▇'▇
First Trigger Value, ▇▇▇▇▇'▇ Second Trigger Value". Paragraph
4(d)(ii) is hereby amended by (A) deleting the words "a Value" and
inserting in lieu thereof "an S&P Value, ▇▇▇▇▇'▇ First Trigger
Value, and ▇▇▇▇▇'▇ Second Trigger Value" and (B) deleting the words
"the Value" and inserting in lieu thereof "S&P Value, ▇▇▇▇▇'▇ First
Trigger Value, and ▇▇▇▇▇'▇ Second Trigger Value". Paragraph 5
(flush language) is hereby amended by deleting the word "Value" and
inserting in lieu thereof "S&P Value, ▇▇▇▇▇'▇ First Trigger Value,
or ▇▇▇▇▇'▇ Second Trigger Value". Paragraph 5(i) (flush language)
is hereby amended by deleting the word "Value" and inserting in
lieu thereof "S&P Value, ▇▇▇▇▇'▇ First Trigger Value, and ▇▇▇▇▇'▇
Second Trigger Value". Paragraph 5(i)(C) is hereby amended by
deleting the word "the Value, if" and inserting in lieu thereof
"any one or more of the S&P Value, ▇▇▇▇▇'▇ First Trigger Value, or
▇▇▇▇▇'▇ Second Trigger Value, as may be". Paragraph 5(ii) is hereby
amended by (1) deleting the first instance of the words "the Value"
and inserting in lieu thereof "any one or more of the S&P Value,
▇▇▇▇▇'▇ First Trigger Value, or ▇▇▇▇▇'▇ Second Trigger Value" and
(2) deleting the second instance of the words "the Value" and
inserting in lieu thereof "such disputed S&P Value, ▇▇▇▇▇'▇ First
Trigger Value, or ▇▇▇▇▇'▇ Second Trigger Value". Each of Paragraph
8(b)(iv)(B) and Paragraph 11(a) is hereby amended by deleting the
word "Value" and inserting in lieu thereof "least of the S&P Value,
▇▇▇▇▇'▇ First Trigger Value, and ▇▇▇▇▇'▇ Second Trigger Value".
(iv) Form of Annex. Party A and Party B hereby agree that the text of
Paragraphs 1 through 12, inclusive, of this Annex is intended to be
the printed form of ISDA Credit Support Annex (Bilateral Form -
ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
(v) Events of Default. Paragraph 7 will not apply to cause any Event of
Default to exist with respect to Party B except that Paragraph 7(i)
will apply to Party B solely in respect of Party B's obligations
under Paragraph 3(b) of the Credit Support Annex. Notwithstanding
anything to the contrary in Paragraph 7, any failure by Party A to
comply with or perform any obligation to be complied with or
performed by Party A under the Credit Support Annex shall only be
an Event of Default if (A) a Required Ratings Downgrade Event has
occurred and been continuing for 30 or more Local Business Days and
(B) such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to Party A.
(vi) Expenses. Notwithstanding anything to the contrary in Paragraph 10,
the Pledgor will be responsible for, and will reimburse the Secured
Party for, all transfer and other taxes and other costs involved in
any Transfer of Eligible Collateral.
(vii) Withholding. Paragraph 6(d)(ii) is hereby amended by inserting
immediately after "the Interest Amount" in the fourth line thereof
the words "less any applicable withholding taxes."
(viii) Additional Definitions. As used in this Annex:
"Collateral Event" means that no Relevant Entity has credit ratings
at least equal to the Approved Ratings Threshold.
"Exposure" has the meaning specified in Paragraph 12, except that
after the word "Agreement" the words "(assuming, for this purpose
only, that Part 1(f) of the Schedule is deleted)" shall be
inserted.
"Local Business Day" means: any day on which (A) commercial banks
are open for business (including dealings in foreign exchange and
foreign currency deposits) in London, New York and the location of
the Custodian, and (B) in relation to a Transfer of Eligible
Collateral, any day on which the clearance system agreed between
the parties for the delivery of Eligible Collateral is open for
acceptance and execution of settlement instructions (or in the case
of a Transfer of Cash or other Eligible Collateral for which
delivery is contemplated by other means a day on which commercial
banks are open for business (including dealings in foreign exchange
and foreign deposits) in New York and such other places as the
parties shall agree.
"▇▇▇▇▇'▇ First Trigger Additional Collateralized Amount" means,
with respect to any Transaction and any Valuation Date, the product
of the applicable ▇▇▇▇▇'▇ First Trigger Factor set forth in Table 1
and the Notional Amount for such Transaction for the Calculation
Period which includes such Valuation Date.
"▇▇▇▇▇'▇ First Trigger Event" means that no Relevant Entity has
credit ratings from ▇▇▇▇▇'▇ at least equal to the ▇▇▇▇▇'▇ First
Trigger Ratings Threshold.
"▇▇▇▇▇'▇ First Trigger Credit Support Amount" means, for any
Valuation Date, the excess, if any, of
(I) (A) for any Valuation Date on which (I) a ▇▇▇▇▇'▇ First
Trigger Event has occurred and has been continuing
(x) for at least 30 Local Business Days or (y) since
this Annex was executed and (II) it is not the case
that a ▇▇▇▇▇'▇ Second Trigger Event has occurred and
been continuing for at least 30 Local Business Days,
an amount equal to the greater of (a) zero and (b)
sum of (i) the Secured Party's Exposure for such
Valuation Date and (ii) the aggregate of ▇▇▇▇▇'▇
First Trigger Additional Collateralized Amounts for
all Transactions; or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"▇▇▇▇▇'▇ First Trigger Value" means, on any date and with respect to
any Eligible Collateral other than Cash, the bid price obtained by
the Valuation Agent multiplied by the ▇▇▇▇▇'▇ First Trigger
Valuation Percentage for such Eligible Collateral set forth in
Paragraph 13(b)(ii).
"▇▇▇▇▇'▇ Second Trigger Additional Collateralized Amount" means,
with respect to any Transaction and any Valuation Date, (A) if such
Transaction is not a Transaction-Specific Hedge, the product of the
applicable ▇▇▇▇▇'▇ Second Trigger Factor set forth in Table 2 and
the Notional Amount for such Transaction for the Calculation Period
which includes such Valuation Date and (B) if such Transaction is a
Transaction-Specific Hedge, the product of the applicable ▇▇▇▇▇'▇
Second Trigger Factor set forth in Table 3 and the Notional Amount
for such Transaction for the Calculation Period which includes such
Valuation Date.
"▇▇▇▇▇'▇ Second Trigger Event" means that no Relevant Entity has
credit ratings from ▇▇▇▇▇'▇ at least equal to the ▇▇▇▇▇'▇ Second
Trigger Ratings Threshold.
"▇▇▇▇▇'▇ Second Trigger Credit Support Amount" means, for any
Valuation Date, the excess, if any, of
(I) (A) for any Valuation Date on which it is the case that a
▇▇▇▇▇'▇ Second Trigger Event has occurred and been
continuing for at least 30 Local Business Days, an
amount equal to the greatest of (a) zero, (b) the sum
of the amounts of the next payment due to be paid by
Party A under each Transaction to which this Annex
relates, and (c) the sum of (x) the Secured Party's
Exposure for such Valuation Date and (y) the
aggregate of ▇▇▇▇▇'▇ Second Trigger Additional
Collateralized Amounts for all Transactions; or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"▇▇▇▇▇'▇ Second Trigger Value" means, on any date and with respect
to any Eligible Collateral other than Cash, the bid price obtained
by the Valuation Agent multiplied by the ▇▇▇▇▇'▇ Second Trigger
Valuation Percentage for such Eligible Collateral set forth in
Paragraph 13(b)(ii).
"S&P Credit Support Amount" means, for any Valuation Date, the
excess, if any, of
(I) (A) for any Valuation Date on which (i) no Relevant
Entity has credit ratings from S&P at least equal to
the S&P Required Ratings Threshold or (ii) an S&P
Rating Threshold Event has occurred and been
continuing for at least 30 days, an amount equal to
the sum of (1) 100.0% of the Secured Party's Exposure
for such Valuation Date and (2) the product of the
Volatility Buffer for each Transaction to which this
Annex relates and the Notional Amount of each such
Transaction for the Calculation Period which includes
such Valuation Date, or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"S&P Rating Threshold Event" means, on any date, no Relevant Entity
has credit ratings from S&P at least equal to the S&P Approved
Ratings Threshold.
"S&P Value" means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (A) the bid price
obtained by the Valuation Agent for such Eligible Collateral and (B)
the S&P Valuation Percentage for such Eligible Collateral set forth
in paragraph 13(b)(ii).
"Transaction-Specific Hedge" means any Transaction that is a cap,
floor or swaption, or a Transaction in respect of which (x) the
notional amount is "balance guaranteed" or (y) the notional amount
for any Calculation Period otherwise is not a specific dollar amount
that is fixed at the inception of the Transaction.
"Valuation Percentage" shall mean, for purposes of determining the
S&P Value, ▇▇▇▇▇'▇ First Trigger Value, or ▇▇▇▇▇'▇ Second Trigger
Value with respect to any Eligible Collateral or Posted Collateral,
the applicable S&P Valuation Percentage, ▇▇▇▇▇'▇ First Trigger
Valuation Percentage, or ▇▇▇▇▇'▇ Second Trigger Valuation Percentage
for such Eligible Collateral or Posted Collateral, respectively, in
each case as set forth in Paragraph 13(b)(ii).
"Value" shall mean, in respect of any date, the related S&P Value,
the related ▇▇▇▇▇'▇ First Trigger Value, and the related ▇▇▇▇▇'▇
Second Trigger Value.
"Volatility Buffer" means, for any Transaction, the related
percentage set forth in the following table.
The higher of the
S&P credit rating Remaining Remaining Remaining Remaining
of (i) Party A and Weighted Weighted Weighted Weighted
(ii) the Credit Average Average Average Average
Support Provider Maturity Maturity Maturity Maturity
of Party A, if up to 3 up to 5 up to 10 up to 30
applicable years years years years
------------------ --------- ----------- ---------- ---------
At least "A-2" 2.75% 3.25% 4.00% 4.75%
"A-3" 3.25% 4.00% 5.00% 6.25%
"BB+" or lower 3.50% 4.50% 6.75% 7.50%
[Remainder of this page intentionally left blank]
Table 1
Weighted Average Life
of Hedge in Years ▇▇▇▇▇'▇ First Trigger Factor
------------------------------------------------- ----------------------------
Equal to or less than 1 0.15%
Greater than 1 but less than or equal to 2 0.30%
Greater than 2 but less than or equal to 3 0.40%
Greater than 3 but less than or equal to 4 0.60%
Greater than 4 but less than or equal to 5 0.70%
Greater than 5 but less than or equal to 6 0.80%
Greater than 6 but less than or equal to 7 1.00%
Greater than 7 but less than or equal to 8 1.10%
Greater than 8 but less than or equal to 9 1.20%
Greater than 9 but less than or equal to 10 1.30%
Greater than 10 but less than or equal to 11 1.40%
Greater than 11 but less than or equal to 12 1.50%
Greater than 12 but less than or equal to 13 1.60%
Greater than 13 but less than or equal to 14 1.70%
Greater than 14 but less than or equal to 15 1.80%
Greater than 15 but less than or equal to 16 1.90%
Greater than 16 but less than or equal to 17 2.00%
Greater than 17 but less than or equal to 18 2.00%
Greater than 18 but less than or equal to 19 2.00%
Greater than 19 but less than or equal to 20 2.00%
Greater than 20 but less than or equal to 21 2.00%
Greater than 21 but less than or equal to 22 2.00%
Greater than 22 but less than or equal to 23 2.00%
Greater than 23 but less than or equal to 24 2.00%
Greater than 24 but less than or equal to 25 2.00%
Greater than 25 but less than or equal to 26 2.00%
Greater than 26 but less than or equal to 27 2.00%
Greater than 27 but less than or equal to 28 2.00%
Greater than 28 but less than or equal to 29 2.00%
Greater than 29 2.00%
Remaining
Weighted Average Life
of Hedge in Years ▇▇▇▇▇'▇ Second Trigger Factor
------------------------------------------------- -----------------------------
Equal to or less than 1 0.50%
Greater than 1 but less than or equal to 2 1.00%
Greater than 2 but less than or equal to 3 1.50%
Greater than 3 but less than or equal to 4 1.90%
Greater than 4 but less than or equal to 5 2.40%
Greater than 5 but less than or equal to 6 2.80%
Greater than 6 but less than or equal to 7 3.20%
Greater than 7 but less than or equal to 8 3.60%
Greater than 8 but less than or equal to 9 4.00%
Greater than 9 but less than or equal to 10 4.40%
Greater than 10 but less than or equal to 11 4.70%
Greater than 11 but less than or equal to 12 5.00%
Greater than 12 but less than or equal to 13 5.40%
Greater than 13 but less than or equal to 14 5.70%
Greater than 14 but less than or equal to 15 6.00%
Greater than 15 but less than or equal to 16 6.30%
Greater than 16 but less than or equal to 17 6.60%
Greater than 17 but less than or equal to 18 6.90%
Greater than 18 but less than or equal to 19 7.20%
Greater than 19 but less than or equal to 20 7.50%
Greater than 20 but less than or equal to 21 7.80%
Greater than 21 but less than or equal to 22 8.00%
Greater than 22 but less than or equal to 23 8.00%
Greater than 23 but less than or equal to 24 8.00%
Greater than 24 but less than or equal to 25 8.00%
Greater than 25 but less than or equal to 26 8.00%
Greater than 26 but less than or equal to 27 8.00%
Greater than 27 but less than or equal to 28 8.00%
Greater than 28 but less than or equal to 29 8.00%
Greater than 29 8.00%
Table 3
Remaining
Weighted Average Life
of Hedge in Years ▇▇▇▇▇'▇ Second Trigger Factor
------------------------------------------------- -----------------------------
Equal to or less than 1 0.65%
Greater than 1 but less than or equal to 2 1.30%
Greater than 2 but less than or equal to 3 1.90%
Greater than 3 but less than or equal to 4 2.50%
Greater than 4 but less than or equal to 5 3.10%
Greater than 5 but less than or equal to 6 3.60%
Greater than 6 but less than or equal to 7 4.20%
Greater than 7 but less than or equal to 8 4.70%
Greater than 8 but less than or equal to 9 5.20%
Greater than 9 but less than or equal to 10 5.70%
Greater than 10 but less than or equal to 11 6.10%
Greater than 11 but less than or equal to 12 6.50%
Greater than 12 but less than or equal to 13 7.00%
Greater than 13 but less than or equal to 14 7.40%
Greater than 14 but less than or equal to 15 7.80%
Greater than 15 but less than or equal to 16 8.20%
Greater than 16 but less than or equal to 17 8.60%
Greater than 17 but less than or equal to 18 9.00%
Greater than 18 but less than or equal to 19 9.40%
Greater than 19 but less than or equal to 20 9.70%
Greater than 20 but less than or equal to 21 10.00%
Greater than 21 but less than or equal to 22 10.00%
Greater than 22 but less than or equal to 23 10.00%
Greater than 23 but less than or equal to 24 10.00%
Greater than 24 but less than or equal to 25 10.00%
Greater than 25 but less than or equal to 26 10.00%
Greater than 26 but less than or equal to 27 10.00%
Greater than 27 but less than or equal to 28 10.00%
Greater than 28 but less than or equal to 29 10.00%
Greater than 29 10.00%
EXHIBIT P
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Securities Administrator],
[the Master Servicer] [each Custodian], [each Servicer], [each Subservicer] and
[each Subcontractor] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria." The responsibilities set forth herein
may be amended without amending the Pooling and Servicing Agreement upon mutual
agreement among the applicable party requesting such amendment and the other
parties to the Agreement.
SERVICING CRITERIA APPLICABLE SERVICING CRITERIA
-------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any Securities
performance or other triggers and events of default in Administrator/Servicer
accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third Securities
parties, policies and procedures are instituted to monitor the Administrator/Servicer
third party's performance and compliance with such servicing
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain N/A
a back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in Servicer/Master Servicer
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 Servicer/Master Servicer
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 Servicer/Securities
obligor or to an investor are made only by authorized personnel. Administrator/Master Servicer
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash Servicer/Master Servicer
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 Servicer/Securities
reserve accounts or accounts established as a form of Administrator/Master Servicer
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 Servicer/Securities
depository institution as set forth in the transaction agreements. Administrator/Master Servicer
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 Servicer/Securities
access. Administrator/Master Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Servicer/Securities
asset-backed securities related bank accounts, including custodial Administrator/Master Servicer
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 Securities
Commission, are maintained in accordance with the transaction Administrator/Servicer/Master
agreements and applicable Commission requirements. Specifically, Servicer
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 securities administrator'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 Securities
accordance with timeframes, distribution priority and other Administrator/Servicer/Master
terms set forth in the transaction agreements. Servicer
1122(d)(3)(iii) Disbursements made to an investor are posted within two Securities
business days to the Servicer's investor records, or such other Administrator/Servicer/Master
number of days specified in the transaction agreements. Servicer
1122(d)(3)(iv) Amounts remitted to investors per the investor reports Securities
agree with cancelled checks, or other form of payment, or custodial Administrator/Servicer/Master
bank statements. Servicer
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as Custodian/ Securities
required by the transactionagreements or related mortgage Administrator/Servicer
loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Custodian/Securities
required by the transaction agreements Administrator/Servicer
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Servicer
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 Servicer
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
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 Servicer
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, Servicer
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 Servicer
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 Servicer
with variable rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow Servicer
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 Servicer
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 Servicer
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 Servicer
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 Servicer
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Securities Administrator
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
EXHIBIT Q
ADDITIONAL FORM 10-D DISCLOSURE
Item on Form 10-D Party Responsible
--------------------------------------------------------------------------------
Item 1: Distribution and Pool Master Servicer/
Performance Information Servicer/
Securities Administrator
Any information required by clauses
(i) and (ii) of the second full
paragraph of Section 4.03(a) of
the Pooling and Servicing
Agreement
Any information required by Item Depositor
1121 which is NOT included on the
monthly statement
Item 2: Legal Proceedings (i) All parties to the Agreement (as
to themselves), (ii) the Trustee, the
per Item 1117 of Regulation AB Master Servicer, the Securities
Administrator and each Servicer (to
their respective actual knowledge) as
to the issuing entity, (iii) the
Depositor as to the sponsor, and each
Original Loan Seller or any Regulation
AB Item 1100(d)(1) party
Item 3: Sale of Securities and Use Depositor
of Proceeds
Item 4: Defaults Upon Senior Securities Administrator
Securities
Item 5: Submission of Matters to a Securities Administrator
Vote of Security Holders
Item 6: Significant Obligors of N/A
Pool Assets
Item 7: Significant Enhancement Depositor
Provider Information
Item 8: Other Information Any party to the Agreement responsible
for disclosure items on Form 8-K
Item 9: Exhibits Securities Administrator (or other
responsible party)
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
EXHIBIT R
ADDITIONAL FORM 10-K DISCLOSURE
Item on Form 10-K Party Responsible
--------------------------------------------------------------------------------
Item 9B: Other Information Any party to the Agreement responsible
for disclosure items on Form 8-K
Item 15: Exhibits, Financial Securities Administrator
Statement Schedules Depositor
Additional Item: (i) All parties to the Agreement (as to
themselves), (ii) the Trustee, the Master
Disclosure per Item 1117 of Servicer, the Depositor, the Securities
Regulation AB Administrator and each Servicer (to their
respective actual knowledge) as to the
Trust, (iii) the Depositor as to the
sponsor and each Original Loan Seller or
any 1100(d)(1) party
Additional Item: (i) All parties to the Agreement as to
Disclosure per Item 1119 of themselves, (ii) the Depositor as to the
Regulation AB sponsor, or any derivative provider
Additional Item: N/A
Disclosure per Item 1112(b) of
Regulation AB
Additional Item: Depositor
Disclosure per Items 1114(b) and
1115(b) of Regulation AB
EXHIBIT S
FORM 8-K DISCLOSURE INFORMATION
Item on Form 8-K Party Responsible
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Item 1.01- Entry into a Material The party to this Agreement
Definitive Agreement entering into such material
definitive agreement
Item 1.02- Termination of a Material The party to this Agreement
Definitive Agreement requesting termination of a
material definitive agreement
Item 1.03- Bankruptcy or Receivership (i) All parties to the Agreement
(as to themselves), (ii) the
Trustee, the Master Servicer, the
Securities Administrator and each
Servicer (to their respective
actual knowledge) as to the Trust,
(iii) the Depositor as to the
sponsor and each Original Loan
Seller or any 1100(d)(1) party
Item 2.04- Triggering Events that Securities Administrator/Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
Item 3.03- Material Modification to The party requesting such
Rights of Security Holders modification
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of
Fiscal Year
Item 6.01- ABS Informational and Depositor
Computational Material
Item 6.02- Change of Servicer, Master Servicer, Servicer,
Securities Administrator or Trustee Securities Administrator, Trustee
(as to the Trustee)
Item 6.03- Change in Credit Enhancement Depositor/ Securities Administrator
or External Support
Item 6.04- Failure to Make a Required Securities Administrator
Distribution
Item 6.05- Securities Act Updating Depositor
Disclosure
Item 7.01- Regulation FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 - Financial Statements and Responsible party for
Exhibits reporting/disclosing the financial
statement or exhibit
EXHIBIT T
ADDITIONAL DISCLOSURE NOTIFICATION
BCAP LLC
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Attention: [_________]
▇▇▇▇▇ Fargo Bank, N.A.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇&▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attn: Corporate Trust Services - BCAP 2006-AA2--SEC REPORT PROCESSING
Re: RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 8.15 of the Master Servicing and Trust
Agreement, dated as of November 1, 2006, between BCAP LLC, as depositor and
▇▇▇▇▇ Fargo Bank, National Association, as master servicer, securities
administrator and custodian. The undersigned, as [____], hereby notifies you
that certain events have come to our attention that [will] [may] need to be
disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[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:
EXHIBIT U
AMENDMENT REG AB
EXHIBIT 10.8
AMENDMENT REG AB
TO THE MASTER MORTGAGE LOAN PURCHASE AGREEMENT AND THE SERVICING
AGREEMENT
This is Amendment Reg AB ("Amendment Reg AB"), dated as of August
30, 2006, by and between Barclays Bank PLC (the "Purchaser") and Countrywide
Home Loans, Inc. (the "Company"), to that certain Master Mortgage Loan Purchase
Agreement (the "Purchase Agreement") and that certain Servicing Agreement (the
"Servicing Agreement"), each dated as of August 30, 2006 and each by and between
the Company and the Purchaser (as amended, modified or supplemented, the
"Existing Agreements").
W I T N E S S E T H:
WHEREAS, the Company and the Purchaser have agreed, subject to
the terms and conditions of this Amendment Reg AB that the Existing Agreements
be amended to reflect agreed upon revisions to the terms of the Existing
Agreements.
Accordingly, the Company and the Purchaser hereby agree, in
consideration of the mutual premises and mutual obligations set forth herein,
that the Existing Agreements are hereby amended as follows:
1. Capitalized terms used herein but not otherwise defined shall
have the meanings set forth in the Existing Agreements. The Existing Agreements
are hereby amended by adding the following definitions in their proper
alphabetical order:
Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Section 2(g)(i)(A)(1).
Depositor: The depositor, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Exchange Act. The Securities Exchange Act of 1934, as amended.
Master Servicer: With respect to any Securitization Transaction,
the "master servicer," if any, identified in the related transaction documents.
Qualified Correspondent: Any Person from which the Company
purchased Mortgage Loans, provided that the following conditions are satisfied:
(i) such Mortgage Loans were either (x) originated pursuant to an agreement
between the Company and such Person that contemplated that such Person would
underwrite mortgage loans from time to time, for sale to the Company, in
accordance with underwriting guidelines designated by the Company ("Designated
Guidelines") or guidelines that do not vary materially from such Designated
Guidelines or (y) individually re-underwritten by the Company to the Designated
Guidelines at the time such Mortgage Loans were acquired by the Company; (ii)
either (x) the Designated Guidelines were, at the time such Mortgage Loans were
originated, used by the Company in origination of mortgage loans of the same
type as the Mortgage Loans for the Company's own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by the Company on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Company; and (iii) the Company employed, at the
time such Mortgage Loans were acquired by the Company, pre-purchase or
post-purchase quality assurance procedures (which may involve, among other
things, review of a sample of mortgage loans purchased during a particular time
period or through particular channels) designed to ensure that either Persons
from which it purchased mortgage loans properly applied the underwriting
criteria designated by the Company or the Mortgage Loans purchased by the
Company substantially comply with the Designated Guidelines.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreement: An agreement or agreements entered into
by the Company and the Purchaser and/or certain third parties in connection with
a Reconstitution with respect to any or all of the Mortgage Loans serviced under
the Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction subject to Regulation
AB involving either (1) a sale or other transfer of some or all of the Mortgage
Loans directly or indirectly to an issuing entity in connection with an issuance
of publicly offered, rated mortgage-backed securities or (2) an issuance of
publicly offered, rated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage Loans.
Servicer: As defined in Section 2(c)(iii).
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Static Pool Information: Static pool information as described in
Item 1105.
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 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 the
Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Company under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB; provided, however, that the term "Subservicer" shall
not include any master servicer, or any special servicer engaged at the request
of a Depositor, Purchaser or investor in a Securitization Transaction, nor any
"back-up servicer" or trustee performing servicing functions on behalf of a
Securitization Transaction.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
2. The Purchaser and the Company agree that the Existing
Agreements is hereby amended by adding the following provisions:
(a) Intent of the Parties; Reasonableness. The Purchaser and the
Company acknowledge and agree that the purpose of Article 2 of this Agreement is
to facilitate compliance by the Purchaser and any Depositor with the provisions
of Regulation AB and related rules and regulations of the Commission. Neither
the Purchaser nor any Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder. The
Company acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, and agrees to negotiate in good faith with the
Purchaser or any Depositor with regard to any reasonable requests for delivery
of information under these provisions on the basis of evolving interpretations
of Regulation AB. In connection with any Securitization Transaction, the Company
shall cooperate fully with the Purchaser to deliver to the Purchaser (including
any of its assignees or designees) and any Depositor, any and all statements,
reports, certifications, records and any other information necessary to permit
the Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Company, and any parties or items
identified in writing by the Purchaser, including, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans necessary in order to effect such compliance.
The Purchaser agrees that it will cooperate with the Company and
provide sufficient and timely notice of any information requirements pertaining
to a Securitization Transaction. The Purchaser will make all reasonable efforts
to contain requests for information, reports or any other materials to items
required for compliance with Regulation AB, and shall not request information
which is not required for such compliance.
(b) Additional Representations and Warranties of the Company.
(i) The Company shall be deemed to represent to the
Purchaser and to any Depositor, as of the date on which
information is first provided to the Purchaser or any Depositor
under Section 2(c) that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i) the Company
is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred
as to any other securitization due to any act or failure to act
of the Company; (ii) the Company has not been terminated as
servicer in a residential mortgage loan securitization, either
due to a servicing default or to application of a servicing
performance test or trigger; (iii) no material noncompliance with
the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the
Company as servicer has been disclosed or reported by the
Company; (iv) no material changes to the Company's policies or
procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreement for
mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the
related Securitization Transaction; (v) there are no aspects of
the Company's financial condition that could have a material
adverse effect on the performance by the Company of its servicing
obligations under this Agreement or any Reconstitution Agreement;
(vi) there are no material legal or governmental proceedings
pending (or known to be contemplated) against the Company, any
Subservicer or any Third-Party Originator; and (vii) there are no
affiliations, relationships or transactions required to be
disclosed under Item 1119 between the Company and any of the
parties listed in Section 2(c)(i)(D)(1)-(9) which are identified
in writing by the Purchaser or Depositor in advance of the
Securitization Transaction pursuant to Section 2(c)(i)(D) of this
Amendment Reg AB.
(ii) If so requested by the Purchaser or any Depositor on
any date following the date on which information is first
provided to the Purchaser or any Depositor under Section 2(c),
the Company shall, within ten Business Days following such
request, confirm in writing the accuracy of the representations
and warranties set forth in paragraph (i) of this Section or, if
any such representation and warranty is not accurate as of the
date of such request, provide reasonably adequate disclosure of
the pertinent facts, in writing, to the requesting party.
(c) Information to Be Provided by the Company. In connection with
any Securitization Transaction the Company shall (1) within ten Business Days
following request by the Purchaser or any Depositor, provide to the Purchaser
and such Depositor (or, as applicable, cause each Third-Party Originator and
each Subservicer to provide), in writing reasonably required for compliance with
Regulation AB, the information and materials specified in paragraphs (i), (ii),
(iii) and (vi) of this Section 2(c), and (2) as promptly as practicable
following notice to or discovery by the Company, provide to the Purchaser and
any Depositor (as required by Regulation AB) the information specified in
paragraph (iv) of this Section.
(i) If so requested by the Purchaser or any Depositor, the
Company shall provide such information regarding (x) the Company,
as originator of the Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified Correspondent, if applicable), or
(y) as applicable, each Third-Party Originator, and (z) as
applicable, each Subservicer, as is requested for the purpose of
compliance with Items 1103(a)(1), 1105 (subject to paragraph (b)
below), 1110, 1117 and 1119 of Regulation AB. Such information
shall include, at a minimum:
(A) the originator's form of organization;
(B) to the extent material, a description of the
originator's origination program and how long the originator
has been engaged in originating residential mortgage loans,
which description shall include a discussion of the
originator's experience in originating mortgage loans of a
similar type as the Mortgage Loans; if material, information
regarding the size and composition of the originator's
origination portfolio; and information that may be material
to an analysis of the performance of the Mortgage Loans,
including the originators' credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the
Mortgage Loans and such other information as the Purchaser
or any Depositor may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
(C) a brief description of any material legal or
governmental proceedings pending (or known to be
contemplated by a governmental authority) against the
Company, each Third-Party Originator, if applicable, and
each Subservicer; and
(D) a description of any affiliation or relationship
between the Company, each Third-Party Originator, if
applicable, each Subservicer and any of the following
parties to a Securitization Transaction, as such parties are
identified to the Company by the Purchaser or any Depositor
in writing within ten days in advance of such Securitization
Transaction:
(1) any servicer;
(2) any trustee;
(3) any originator;
(4) any significant obligor;
(5) any enhancement or support provider; and
(6) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor, and
required by Regulation AB, the Company shall provide (or, as
applicable, cause each Third-Party Originator to provide) Static
Pool Information with respect to the mortgage loans (of a similar
type as the Mortgage Loans, as reasonably identified by the
Purchaser as provided below) originated by (a) the Company, if
the Company is an originator of Mortgage Loans (including as an
acquirer of Mortgage Loans from a Qualified Correspondent, if
applicable), and/or (b) as applicable, each Third-Party
Originator. Such Static Pool Information shall be prepared by the
Company (or, if applicable, the Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the
requirements of Item 1105(a)(1)-(3) of Regulation AB. To the
extent that there is reasonably available to the Company (or
Third-Party Originator, as applicable) Static Pool Information
with respect to more than one mortgage loan type, the Purchaser
or any Depositor shall be entitled to specify whether some or all
of such information shall be provided pursuant to this paragraph.
The content of such Static Pool Information may be in the form
customarily provided by the Company, and need not be customized
for the Purchaser or any Depositor. Such Static Pool Information
for each vintage origination year or prior securitized pool, as
applicable, shall be presented in increments no less frequently
than quarterly over the life of the mortgage loans included in
the vintage origination year or prior securitized pool. The most
recent periodic increment must be as of a date no later than 135
days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included
or incorporated by reference. The Static Pool Information shall
be provided in an electronic format that provides a permanent
record of the information provided, such as a portable document
format (pdf) file, or other such electronic format mutually
agreed upon by the Purchaser and the Company; provided, however,
that to the extent the Company provides Static Pool Information
via weblink, the Company agrees to comply with the applicable
provisions of Rule 312(a)(2), (a)(3), and (a)(4) of Regulation
S-T under the Act.
Promptly following notice or discovery of a material error,
as determined in the Company's judgment, in Static Pool
Information provided pursuant to the immediately preceding
paragraph (including an omission to include therein information
required to be provided pursuant to such paragraph) during the
applicable offering period for the securities, the Company shall
provide corrected Static Pool Information to the Purchaser or any
Depositor, as applicable, in the same format in which Static Pool
Information was previously provided to such party by the Company.
If so requested by the Purchaser or any Depositor, the
Company shall provide (or, as applicable, cause each Third-Party
Originator to provide), at the expense of the requesting party
(to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), procedures letters of
certified public accountants pertaining to Static Pool
Information relating to prior securitized pools for
securitizations closed on or after January 1, 2006 or, in the
case of Static Pool Information with respect to the Company's or,
if applicable, Third-Party Originator's originations or
purchases, to calendar months commencing January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such
statements and letters shall be addressed to and be for the
benefit of such parties as the Purchaser or such Depositor shall
designate, which shall be limited to any Sponsor, any Depositor,
any broker dealer acting as underwriter, placement agent or
initial purchaser with respect to a Securitization Transaction or
any other party that is reasonably and customarily entitled to
receive such statements and letters in a Securitization
Transaction. Any such statement or letter may take the form of a
standard, generally applicable document accompanied by a reliance
letter authorizing reliance by the addressees designated by the
Purchaser or such Depositor.
(iii) If reasonably requested by the Purchaser or any
Depositor, the Company shall provide such information regarding
the Company, as servicer of the Mortgage Loans, and each
Subservicer (each of the Company and each Subservicer, for
purposes of this paragraph, a "Servicer"), as is reasonably
requested for the purpose of compliance with Item 1108 of
Regulation AB. Such information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been
servicing residential mortgage loans; a general discussion
of the Servicer's experience in servicing assets of any type
as well as a more detailed discussion of the Servicer's
experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution
Agreements; information regarding the size, composition and
growth of the Servicer's portfolio of residential mortgage
loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be
material, in the reasonable determination of the Purchaser
or any Depositor, to any analysis of the servicing of the
Mortgage Loans or the related asset-backed securities, as
applicable, including, without limitation:
(1) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving
the Servicer have defaulted or experienced an early
amortization or other performance triggering event
because of servicing during the three-year period
immediately preceding the related Securitization
Transaction;
(2) the extent of outsourcing the Servicer
utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing
criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as a
servicer during the three-year period immediately
preceding the related Securitization Transaction;
(4) whether the Servicer has been terminated as
servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related
Securitization Transaction to the Servicer's policies or
procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution
Agreements for mortgage loans of a type similar to the
Mortgage Loans;
(D) information regarding the Servicer's financial
condition, to the extent that there is a material risk that
an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the
performance by the Company of its servicing obligations
under this Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Servicer
on the Mortgage Loans and the Servicer's overall servicing
portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an
authorized officer of the Servicer to the effect that the
Servicer has made all advances required to be made on
residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate,
information regarding the percentage and type of advances
not made as required, and the reasons for such failure to
advance;
(F) a description of the Servicer's processes and
procedures designed to address any special or unique factors
involved in servicing loans of a similar type as the
Mortgage Loans;
(G) a description of the Servicer's processes for
handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of mortgaged properties, sale of
defaulted mortgage loans or workouts; and
(H) information as to how the Servicer defines or
determines delinquencies and charge-offs, including the
effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect
to delinquency and loss experience.
(iv) For the purpose of satisfying its reporting obligation
under the Exchange Act with respect to any class of asset-backed
securities, the Company shall (or shall cause each Subservicer
and, if applicable, any Third-Party Originator to) (a) provide
prompt notice to the Purchaser, any Master Servicer and any
Depositor in writing of (1) any merger, consolidation or sale of
substantially all of the assets of the Company, (2) the Company's
entry into an agreement with a Subservicer to perform or assist
in the performance of any of the Company's obligations under the
Agreement or any Reconstitution Agreement that qualifies as an
"entry into a material definitive agreement" under Item 1.01 of
the form 8-K, (3) any Event of Default under the terms of the
Agreement or any Reconstitution Agreement to the extent not known
by such Purchaser, Master Servicer or Depositor and (4) any
material litigation or governmental proceedings involving the
Company, any Subservicer or any Third Party Originator.
(v) As a condition to the succession to the Company or any
Subservicer as servicer or subservicer under this Agreement or
any applicable Reconstitution Agreement related thereto by any
Person (i) into which the Company or such Subservicer may be
merged or consolidated, or (ii) which may be appointed as a
successor to the Company or any Subservicer, the Company shall
provide to the Purchaser, the Master Servicer and any Depositor,
at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Purchaser
and any Depositor of such succession or appointment and (y) in
writing, all information reasonably requested by the Purchaser or
any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of
asset-backed securities.
(vi) The Company shall provide to the Purchaser and any
Depositor a description of any affiliation or relationship
required to be disclosed under Item 1119 of Regulation AB between
the Company and any of the parties listed in Items 1119
(a)(1)-(6) of Regulation AB that develops following the closing
date of a Securitization Transaction (other than an affiliation
or relationship that the Purchaser, the Depositor or the issuing
entity is required to disclose under Item 1119 of Regulation AB)
no later than 15 calendar days prior to the date the Depositor is
required to file its Form 10 K disclosing such affiliation or
relationship. For purposes of the foregoing, the Company (1)
shall be entitled to assume that the parties to the
Securitization Transaction with whom affiliations or relations
must be disclosed are the same as on the closing date if it
provides a written request (which may be by e-mail) to the
Depositor or Master Servicer, as applicable, requesting such
confirmation and either obtains such confirmation or receives no
response within three (3) Business Days, (2) shall not be
obligated to disclose any affiliations or relationships that may
develop after the closing date for the Securitization Transaction
with any parties not identified to the Company pursuant to clause
(D) of paragraph (i) of this Section 2(c), and (3) shall be
entitled to rely upon any written identification of parties
provided by the Depositor, the Purchaser or any master servicer.
(vii) Not later than ten days prior to the deadline for the
filing of any distribution report on Form 10-D in respect of any
Securitization Transaction that includes any of the Mortgage
Loans serviced by the Company or any Subservicer, the Company or
such Subservicer, as applicable, shall, to the extent the Company
or such Subservicer has knowledge, provide to the party
responsible for filing such report (including, if applicable, the
Master Servicer) notice of the occurrence of any of the following
events along with all information, data, and materials related
thereto as may be required to be included in the related
distribution report on Form 10-D :
(a) any material modifications, extensions or
waivers of Mortgage Loan terms, fees, penalties or payments
during the distribution period;
(b) material breaches of Mortgage Loan
representations or warranties or transaction covenants under the
Existing Agreements, as amended herein; and
(c) information regarding any Mortgage Loan changes
(such as, additions, substitutions or repurchases) and with
respect to a mortgage loan that the Company has substituted as a
replacement for a Mortgage Loan ("Substituted Mortgage Loan"),
the origination, underwriting and, if applicable, other Company
criteria for the acquisition or selection of such Substituted
Mortgage Loan.
(d) Servicer Compliance Statement. On or before March 5 of each
calendar year, commencing in 2007, the Company shall deliver to the Purchaser,
the Master Servicer and any Depositor a statement of compliance addressed to the
Purchaser and such Depositor and signed by an authorized officer of the Company,
to the effect that (i) a review of the Company's servicing activities during the
immediately preceding calendar year (or applicable portion thereof) and of its
performance under the servicing provisions of this Agreement and any applicable
Reconstitution Agreement during such period has been made under such officer's
supervision, and (ii) to the best of such officers' knowledge, based on such
review, the Company has fulfilled all of its servicing obligations under this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
(e) Report on Assessment of Compliance and Attestation.
(i) On or before March 5 of each calendar year, commencing
in 2007, the Company shall:
(A) deliver to the Purchaser, the Master Servicer and
any Depositor a report regarding the Company's assessment of
compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the
Purchaser and such Depositor and signed by an authorized
officer of the Company, and shall address each of the
applicable Servicing Criteria specified on Exhibit A hereto
(wherein "Investor" shall mean the Master Servicer);
(B) deliver to the Purchaser, the Master Servicer and
any Depositor a report of a registered public accounting
firm that attests to, and reports on, the assessment of
compliance made by the Company and delivered pursuant to the
preceding paragraph. Such 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;
(C) if required by Regulation AB, cause each
Subservicer and each Subcontractor determined by the Company
pursuant to Section 2(f)(ii) to be "participating in the
servicing function" within the meaning of Item 1122 of
Regulation AB (each, a "Participating Entity"), to deliver
to the Purchaser, the Master Servicer and any Depositor an
assessment of compliance and accountants' attestation as and
when provided in paragraphs (i) and (ii) of this Section
2(e); and
(D) deliver or cause each Subservicer and Subcontractor
described in Section 2(e)(i)(C) above to deliver to the
Purchaser, the Master Servicer, Depositor or any other
Person that will be responsible for signing the
certification (a "Sarbanes Certification") required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of
an asset-backed issuer with respect to a Securitization
Transaction, a certification signed by an appropriate
officer of the Company, in the form attached hereto as
Exhibit B; provided that such certification delivered by the
Company may not be filed as an exhibit to, or included in,
any filing with the Commission.
The Company acknowledges that the party identified in clause
(i)(D) above may rely on the certification provided by the Company pursuant to
such clause in signing a Sarbanes Certification and filing such with the
Commission.
(ii) Each assessment of compliance provided by a Subservicer
pursuant to Section 2(e)(i)(A) shall address each of the
applicable Servicing Criteria specified on Exhibit A hereto
(wherein "Investor" shall mean the Master Servicer) delivered to
the Purchaser concurrently with the execution of this Agreement
or, in the case of a Subservicer subsequently appointed as such,
on or prior to the date of such appointment. An assessment of
compliance provided by a Participating Entity pursuant to Section
2(e)(i)(C) need not address any elements of the Servicing
Criteria other than those specified by the Company pursuant to
Section 2(f).
If reasonably requested by the Purchaser or the Master Servicer,
the Company shall provide to the Purchaser or the Master Servicer, evidence of
the authorization of the person signing any certification or statement provided
pursuant to this Amendment Reg AB.
(f) Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of
any Subservicer to fulfill any of the obligations of the Company as servicer
under this Agreement or any related Reconstitution Agreement unless the Company
complies with the provisions of paragraph (i) of this Subsection (f). The
Company shall not hire or otherwise utilize the services of any Subcontractor,
and shall not permit any Subservicer to hire or otherwise utilize the services
of any Subcontractor, to fulfill any of the obligations of the Company as
servicer under this Agreement or any related Reconstitution Agreement unless the
Company complies with the provisions of paragraph (ii) of this Subsection (f).
(i) It shall not be necessary for the Company to seek the
consent of the Purchaser, the Master Servicer or any Depositor to
the utilization of any Subservicer. If required by Regulation AB,
after reasonable notice from the Purchaser of the parties
involved in the Purchaser's Securitization Transaction, the
Company shall cause any Subservicer used by the Company (or by
any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of this Section and with
Sections 2(b), 2(c)(iii), 2(c)(v), 2(d), and 2(e) of this
Agreement, and to provide the information required with respect
to such Subservicer under Section 2(c)(iv) of this Agreement. The
Company shall be responsible for obtaining from each Subservicer
and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer
under Section 2(d), any assessment of compliance and attestation
required to be delivered by such Subservicer under Section 2(e)
and any certification required to be delivered to the Person that
will be responsible for signing the Sarbanes Certification under
Section 2(e) as and when required to be delivered.
(ii) It shall not be necessary for the Company to seek the
consent of the Purchaser or any Depositor to the utilization of
any Subcontractor. If required by Regulation AB, after reasonable
notice from the Purchaser of the parties involved in the
Purchaser's Securitization Transaction, the Company shall
promptly upon request provide to the Purchaser or any Depositor
(or any designee of the Depositor, such as a master servicer or
administrator) of the role and function of each Subcontractor
utilized by the Company or any Subservicer, specifying (A) the
identity of each such Subcontractor, (B) which (if any) of such
Subcontractors are Participating Entities, and (C) which elements
of the Servicing Criteria will be addressed in assessments of
compliance provided by each Participating Entity identified
pursuant to clause (B)of this paragraph.
The Company shall cause any such Participating Entity used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Section 2(e) of this Agreement. The
Company shall be responsible for obtaining from each Participating Entity and
delivering to the Purchaser, the Master Servicer and any Depositor any
assessment of compliance and attestation and certificate required to be
delivered by such Participating Entity under Section 2(e), in each case as and
when required to be delivered.
(g) Indemnification; Remedies.
(i) The Company shall indemnify the Purchaser and the
Depositor and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each
Person responsible for the execution or filing of any report
required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; 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 present and former directors, officers and
employees of each of the foregoing 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 arising out of or based upon:
(A)(1) any untrue statement of a material fact
contained or alleged to be contained in any information,
report, certification or other material provided in written
or electronic form under this Amendment Reg AB by or on
behalf of the Company (including any Static Pool Information
provided by the Company pursuant to Section 2(c)(ii)), or
provided under this Amendment Reg AB by or on behalf of any
Subservicer, Participating Entity or, if applicable,
Third-Party Originator (collectively, the "Company
Information"), or (2) the omission or alleged omission to
state in the Company Information a material fact required to
be stated in the Company Information or necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (2) of this
paragraph shall be construed solely by reference to the
Company Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Company
Information or any portion thereof is presented together
with or separately from such other information;
(B) any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to
deliver any information, report, certification, accountants'
letter or other material when and as required under this
Amendment Reg AB, including any failure by the Company to
identify pursuant to Section 2(f)(ii) any Participating
Entity; or
(C) any breach by the Company of a representation or
warranty set forth in Section 2(b)(i) or in a writing
furnished pursuant to Section 2(b)(ii) and made as of a date
prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Company of a
representation or warranty in a writing pursuant to under
Section 2(b)(ii) to the extent made as of a date subsequent
to such closing date; or
(D) the Company's failure to comply with applicable
provisions of Rule 312(a)(2), (a)(3), and (a)(4) of
Regulation S-T under the Act.
In the case of any failure of performance described in clause
(i)(B) of this Section, the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator.
(ii) (A) Any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or other
material when and as required under this Amendment Reg AB, which
continues unremedied for three Business Days after receipt by the
Company and the applicable Subservicer, Subcontractor, or
Third-Party Originator, so long as their addresses for notices
have been provided in writing previously to the Purchaser or the
Depositor, of written notice of such failure from the Purchaser
or Depositor shall, except as provided in clause (B) of this
paragraph, constitute an Event of Default with respect to the
Company under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and
obligations of the Company as servicer under this Agreement
and/or any applicable Reconstitution Agreement related thereto
without payment (notwithstanding anything in this Agreement or
any applicable Reconstitution Agreement related thereto to the
contrary) of any compensation to the Company (and if the Company
is servicing any of the Mortgage Loans in a Securitization
Transaction, appoint a successor servicer reasonably acceptable
to any Master Servicer for such Securitization Transaction);
provided, however it is understood that the Company shall remain
entitled to receive reimbursement for all unreimbursed Monthly
Advances and Servicing Advances made by the Company under this
Agreement and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein, to the
extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the
Company as servicer, such provision shall be given effect.
(B) Any failure by the Company, any Subservicer or any
Participating Entity to deliver any information, report,
certification or accountants' letter required under
Regulation AB when and as required under Section 2(d) or
2(e), including any failure by the Company to identify a
Participating Entity, which continues unremedied for nine
calendar days after receipt by the Company of written notice
of such failure from the Purchaser or Depositor (which
failure shall continue no later than March 15th of each year
("Due Date") with respect to Section 2(d) or 2(e); provided,
however the Company shall have received such written notice
of such failure at least 5 Business Days prior to such Due
Date) shall constitute an Event of Default with respect to
the Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Company as
servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any
compensation to the Company; provided, however it is
understood that the Company shall remain entitled to receive
reimbursement for all unreimbursed Monthly Advances and
Servicing Advances made by the Company under this Agreement
and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein,
to the extent that any provision of this Agreement and/or
any applicable Reconstitution Agreement expressly provides
for the survival of certain rights or obligations following
termination of the Company as servicer, such provision shall
be given effect.
(C) The Company shall promptly reimburse the Purchaser
(or any affected designee of the Purchaser, such as a master
servicer) and any Depositor, as applicable, for all
reasonable expenses incurred by the Purchaser (or such
designee) or such Depositor as such are incurred, in
connection with the termination of the Company as servicer
and the transfer of servicing of the Mortgage Loans to a
successor servicer. The provisions of this paragraph shall
not limit whatever rights the Company, the Purchaser or any
Depositor may have under other provisions of this Agreement
and/or any applicable Reconstitution Agreement or otherwise,
whether in equity or at law, such as an action for damages,
specific performance or injunctive relief.
(iii) The Purchaser agrees to indemnify and hold harmless
the Company, any Subservicer, any Participating Entity, and, if
applicable, any Third-Party Originator, 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 present and former directors, officers and employees
of each of the foregoing 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 any
untrue statement or alleged untrue statement of any material fact
contained in any filing with the Commission or the omission or
alleged omission to state in any filing with the Commission a
material fact required to be stated or necessary to be stated in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue
statement, alleged untrue statement, omission, or alleged
omission relates to any filing with the Commission other than the
Company Information. [Still open]
(iv) The indemnification obligations provided for in Section
2(g) shall survive the termination of this Amendment Reg AB or
the termination of any party to this Amendment Reg AB.
3. Notwithstanding any other provision of this Amendment Reg AB,
the Company shall seek the consent of the Purchaser for the utilization of all
Subservicers and Participating Entities, when required by and in accordance with
the terms of the Existing Agreements.
4. The Servicing Agreement is hereby amended by adding the
Exhibit attached hereto as Exhibit A to the end thereto. References in this
Amendment Reg AB to "this Agreement" or words of similar import (including
indirect references to the Agreement) shall be deemed to be references to the
Existing Agreements as amended by this Amendment Reg AB. Except as expressly
amended and modified by this Amendment Reg AB, the Agreement shall continue to
be, and shall remain, in full force and effect in accordance with its terms. In
the event of a conflict between this Amendment Reg AB and any other document or
agreement, including without limitation the Existing Agreements, this Amendment
Reg AB shall control.
5. This Amendment Reg AB may be executed in one or more
counterparts and by different parties hereto on separate counterparts, each of
which, when so executed, shall constitute one and the same agreement. This
Amendment Reg AB will become effective as of the date first mentioned above.
This Amendment Reg AB shall bind and inure to the benefit of and be enforceable
by the Company and the Purchaser and the respective permitted successors and
assigns of the Company and the successors and assigns of the Purchaser.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
BARCLAYS BANK PLC
Purchaser
By: _____________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
Company
By: _____________________________________
Name:
Title:
EXHIBIT A
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company]
[Name of Subservicer] shall address, at a minimum, the applicable criteria
identified below as "Applicable Servicing Criteria":
Applicable
Servicing
Servicing Criteria Criteria
------------------ --------
Reference 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. X
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and
compliance with such servicing activities. X
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 X
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 X
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. X
1122(d)(2)(iii) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements. X
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 X
(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 X
Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent X
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 X
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 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 X
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. X
1122(d)(3)(iii) Disbursements made to an investor are posted within
two business days to the Servicer's investor records,
or such other number of days specified in the X
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, X
or custodial bank statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction agreements
or related mortgage loan documents. X
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
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. X
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance X
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. X
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 X
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 X
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 X
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. X
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's 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 X
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 X
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 X
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 X
days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
transaction agreements. X
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
[NAME OF COMPANY] [NAME OF
SUBSERVICER]
Date:______________________________
By:_____________________________
Name:
Title:
EXHIBIT B
FORM OF ANNUAL CERTIFICATION
Re: The [__] agreement dated as of [__], 200[_] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________
of Countrywide Home Loans, Inc., certify to [the Purchaser], [the Depositor],
[Master Servicer], [Securities Administrator] or [Trustee], and its officers,
with the knowledge and intent that they will rely upon this certification, 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 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 the [Depositor] [Master Servicer] [Securities
Administrator] or [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] [Master Servicer] [Securities
Administrator] or [Trustee];
(4) I am responsible for reviewing the activities performed by
the Company as servicer under 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; and
[Intentionally Left Blank]
(5) The Compliance Statement required to be delivered by the
Company pursuant to this Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Company and by each
Subservicer and Participating Entity pursuant to the Agreement, have
been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been
disclosed to the [Depositor] [Master Servicer]. Any material instance
of noncompliance with the Servicing Criteria has been disclosed in
such reports.
Date:____________________________
By: _____________________________
Name:
Title: