Depositor MORTGAGEIT, INC., Seller WELLS FARGO BANK, N.A., Master Servicer and Securities Administrator and DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee and Custodian POOLING AND SERVICING AGREEMENT Dated as of February 1, 2006 MortgageIT Trust...
GREENWICH CAPITAL ACCEPTANCE, INC.,
Depositor
MORTGAGEIT,
INC.,
Seller
▇▇▇▇▇
FARGO BANK, N.A.,
Master
Servicer and
Securities
Administrator
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and Custodian
Dated
as
of February 1, 2006
__________________________________
MortgageIT
Trust 2006-1
Mortgage
Pass-Through Certificates, Series 2006-1
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Page
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ARTICLE
I DEFINITIONS; DECLARATION OF TRUST
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7
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SECTION
1.01. Defined Terms.
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7
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SECTION
1.02. Accounting.
|
58
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ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
58
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SECTION
2.01. Conveyance of Mortgage Loans.
|
58
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SECTION
2.02. Acceptance by Trustee.
|
61
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SECTION
2.03. Repurchase or Substitution of Mortgage Loans by the
Seller.
|
63
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SECTION
2.04. Representations and Warranties of the Seller with Respect
to the
Mortgage Loans.
|
66
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|
SECTION
2.05. [Reserved].
|
67
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|
SECTION
2.06. Representations and Warranties of the Depositor.
|
67
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SECTION
2.07. Issuance of Certificates.
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68
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SECTION
2.08. Representations and Warranties of the Seller.
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68
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SECTION
2.09. Covenants of the Seller.
|
70
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ARTICLE
III ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
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70
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SECTION
3.01. Master Servicer to Service and Administer the Mortgage
Loans.
|
70
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|
SECTION
3.02. REMIC-Related Covenants.
|
72
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|
SECTION
3.03. Monitoring of Servicers.
|
72
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SECTION
3.04. Fidelity Bond.
|
73
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|
SECTION
3.05. Power to Act; Procedures.
|
73
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|
SECTION
3.06. Due-on-Sale Clauses; Assumption Agreements.
|
74
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SECTION
3.07. Release of Mortgage Files.
|
74
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SECTION
3.08. Documents, Records and Funds in Possession of Master Servicer
To Be
Held for Trust Fund.
|
75
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|
SECTION
3.09. Standard Hazard Insurance and Flood Insurance
Policies.
|
76
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|
SECTION
3.10. Presentment of Claims and Collection of Proceeds.
|
77
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|
SECTION
3.11. Maintenance of the Primary Insurance Policies.
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77
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SECTION
3.12. Trustee to Retain Possession of Certain Insurance Policies
and
Documents.
|
77
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SECTION
3.13. Realization Upon Defaulted Mortgage Loans.
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78
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SECTION
3.14. Additional Compensation to the Master Servicer.
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78
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SECTION
3.15. REO Property.
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78
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SECTION
3.16. Assessments of Compliance and Attestation Reports.
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79
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SECTION
3.17. Annual Compliance Statement.
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81
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SECTION
3.18. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
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82
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SECTION
3.19. Reports Filed with Securities and Exchange
Commission.
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82
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|
SECTION
3.20. Additional Information.
|
87
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|
SECTION
3.21. Intention of the Parties and Interpretation.
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87
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SECTION
3.22. Indemnification.
|
88
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i
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SECTION
3.23. Amendments to Master Servicing Guide.
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88
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|
SECTION
3.24. Special Foreclosure Rights.
|
89
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SECTION
3.25. Optional Purchases of Defaulted Mortgage Loans.
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92
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SECTION
3.26. Realization upon Troubled Mortgage Loans.
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92
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SECTION
3.27. Closing Certificate and Opinion.
|
93
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SECTION
3.28. Liabilities of the Master Servicer.
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93
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SECTION
3.29. Merger or Consolidation of the Master Servicer.
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93
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SECTION
3.30. Indemnification of the Trustee, the Master Servicer and the
Securities Administrator.
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93
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SECTION
3.31. Limitations on Liability of the Master Servicer and Others;
Indemnification of Trustee and Others.
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94
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SECTION
3.32. Master Servicer Not to Resign.
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95
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SECTION
3.33. Successor Master Servicer.
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96
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SECTION
3.34. Sale and Assignment of Master Servicing.
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96
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SECTION
3.35. Reporting Requirements of the Commission.
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96
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ARTICLE
IV ACCOUNTS
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97
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SECTION
4.01. Servicing Accounts.
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97
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SECTION
4.02. Distribution Account.
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98
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SECTION
4.03. Permitted Withdrawals and Transfers from the Distribution
Account.
|
100
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SECTION
4.04. Yield Maintenance Account.
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102
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SECTION
4.05. [Reserved].
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104
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ARTICLE
V FLOW OF FUNDS
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104
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SECTION
5.01. Distributions.
|
104
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SECTION
5.02. Allocation of Net Deferred Interest.
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111
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SECTION
5.03. Allocation of Realized Losses.
|
112
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SECTION
5.04. Statements.
|
113
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SECTION
5.05. Remittance Reports; Advances.
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117
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SECTION
5.06. Compensating Interest Payments.
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117
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SECTION
5.07. Basis Risk Reserve Fund.
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117
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SECTION
5.08. Recoveries.
|
121
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ARTICLE
VI THE CERTIFICATES
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122
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SECTION
6.01. The Certificates.
|
122
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SECTION
6.02. Registration of Transfer and Exchange of
Certificates.
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123
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|
SECTION
6.03. Mutilated, Destroyed, Lost or Stolen Certificates.
|
131
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SECTION
6.04. Persons Deemed Owners.
|
131
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SECTION
6.05. Appointment of Paying Agent.
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131
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ARTICLE
VII DEFAULT
|
132
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SECTION
7.01. Event of Default.
|
132
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SECTION
7.02. Trustee to Act.
|
134
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SECTION
7.03. Waiver of Event of Default.
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135
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SECTION
7.04. Notification to Certificateholders.
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135
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ii
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ARTICLE
VIII THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
136
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SECTION
8.01. Duties of Trustee and Securities Administrator.
|
136
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|
SECTION
8.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
|
137
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|
SECTION
8.03. Trustee and the Securities Administrator Not Liable for Certificates
or Mortgage Loans.
|
139
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SECTION
8.04. Trustee, Custodian, Master Servicer and Securities Administrator
May
Own Certificates.
|
140
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|
SECTION
8.05. Trustee’s and Securities Administrator’s Fees and
Expenses.
|
140
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|
SECTION
8.06. Eligibility Requirements for Trustee and Securities
Administrator.
|
141
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|
SECTION
8.07. Resignation or Removal of Trustee and Securities
Administrator.
|
141
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|
SECTION
8.08. Successor Trustee and Successor Securities
Administrator.
|
142
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|
SECTION
8.09. Merger or Consolidation of Trustee or Securities
Administrator.
|
143
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|
SECTION
8.10. Appointment of Co-Trustee or Separate Trustee.
|
143
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|
SECTION
8.11. Limitation of Liability.
|
144
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|
SECTION
8.12. Trustee May Enforce Claims Without Possession of
Certificates.
|
144
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|
SECTION
8.13. Suits for Enforcement.
|
145
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|
SECTION
8.14. Waiver of Bond Requirement.
|
146
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|
SECTION
8.15. Waiver of Inventory, Accounting and Appraisal
Requirement.
|
146
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|
SECTION
8.16. Appointment of Custodians.
|
146
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ARTICLE
IX REMIC ADMINISTRATION
|
146
|
|
SECTION
9.01. REMIC Administration.
|
146
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|
SECTION
9.02. Prohibited Transactions and Activities.
|
149
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ARTICLE
X TERMINATION
|
149
|
|
SECTION
10.01. Termination.
|
149
|
|
SECTION
10.02. Additional Termination Requirements.
|
151
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|
ARTICLE
XI DISPOSITION OF TRUST FUND ASSETS
|
151
|
|
SECTION
11.01. Disposition of Trust Fund Assets.
|
151
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|
ARTICLE
XII MISCELLANEOUS PROVISIONS
|
151
|
|
SECTION
12.01. Amendment.
|
151
|
|
SECTION
12.02. Recordation of Agreement; Counterparts.
|
153
|
|
SECTION
12.03. Limitation on Rights of Certificateholders.
|
153
|
|
SECTION
12.04. Governing Law; Jurisdiction.
|
154
|
|
SECTION
12.05. Notices.
|
154
|
|
SECTION
12.06. Severability of Provisions.
|
155
|
|
SECTION
12.07. Article and Section References.
|
155
|
|
SECTION
12.08. Notice to the Rating Agencies.
|
155
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|
SECTION
12.09. Further Assurances.
|
156
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|
SECTION
12.10. Benefits of Agreement.
|
156
|
|
SECTION
12.11. Acts of Certificateholders.
|
156
|
|
SECTION
12.12. Successors and Assigns.
|
157
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|
SECTION
12.13. Derivative Transactions.
|
157
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iii
|
SECTION
12.14. Provision of Information.
|
158
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Exhibit
A
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Form
of Senior Certificate
|
A
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Exhibit
B-1
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Form
of Class A-R Certificate
|
B-1
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Exhibit
B-2
|
Form
of Class P Certificate
|
B-2
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|
Exhibit
C-1
|
Form
of Class PO Certificate
|
C-1
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|
Exhibit
C-2
|
Form
of Class X Certificate
|
C-2
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|
Exhibit
D-1
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Form
of Subordinate Certificate
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D-1
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|
Exhibit
D-2
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Form
of Subordinate Certificate (Rule 144A)
|
D-2
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Exhibit
D-3
|
Form
of Subordinate Certificate (Regulation S)
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D-3
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Exhibit
E
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Form
of Reverse of the Certificates
|
E
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|
Exhibit
F
|
Request
for Release
|
F
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|
Exhibit
G-1
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Form
of Receipt of Mortgage Note
|
G-1
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|
Exhibit
G-2
|
Form
of Interim Certificate of Trustee
|
G-2
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|
Exhibit
G-3
|
Form
of Final Certification of Trustee
|
G-3
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
H
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|
Exhibit
I-1
|
Form
of ERISA Representation for Residual Certificates
|
I-1
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|
Exhibit
I-2
|
Form
of ERISA Representation
|
I-2
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|
Exhibit
J-1
|
Form
of Investment Letter [Non-Rule 144A]
|
J-1
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|
Exhibit
J-2
|
Form
of Rule 144A Investment Letter
|
J-2
|
|
Exhibit
K
|
Form
of Transferor Certificate
|
K
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|
Exhibit
L
|
Transfer
Affidavit for Residual Certificate Pursuant to Section
6.02(e)
|
L
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|
Exhibit
M
|
Form
of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
|
M
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|
Exhibit
N
|
List
of Servicers and Servicing Agreements
|
N
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|
Exhibit
O
|
Transaction
Parties
|
O
|
|
Exhibit
P
|
[Reserved]
|
P
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|
Exhibit
Q
|
Servicing
Criteria
|
Q
|
|
Exhibit
R
|
Additional
Form 10-D Disclosure
|
R
|
|
Exhibit
S
|
Additional
Form 10-K Disclosure
|
S
|
|
Exhibit
T
|
Additional
Form 8-K Disclosure
|
T
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|
Exhibit
U
|
Additional
Disclosure Notification
|
U
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|
|
||
|
Schedule
I
|
Mortgage
Loan Schedule
|
|
|
Schedule
II
|
Converted
Mortgage Loan Schedule
|
|
|
Schedule
III
|
Modified
Mortgage Loan Schedule
|
iv
This
Pooling and Servicing Agreement is dated as of February 1, 2006 (the
“Agreement”),
among
GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor (the
“Depositor”),
MORTGAGEIT, INC., a New York corporation, as seller (the “Seller”),
▇▇▇▇▇
FARGO BANK, N.A., a national banking association, as master servicer (in such
capacity, the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”)
and
DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association, as trustee
and custodian (the “Trustee”).
PRELIMINARY
STATEMENT:
Through
this Agreement, the Depositor intends to cause the issuance and sale of the
MortgageIT Mortgage Loan Trust 2006-1 Mortgage Loan Pass-Through Certificates,
Series 2006-1 (the “Certificates”)
representing in the aggregate the entire beneficial ownership of the Trust
Fund,
the primary assets of which are the Mortgage Loans (as defined
below).
The
Depositor intends to sell the Certificates, to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund. The Certificates will consist of twenty-five classes
of certificates, designated as (i) the Class 1-A1 Certificates, (ii) the Class
1-A2 Certificates, (iii) the Class 1-X Certificates, (iv) the Class A-R
Certificate, (v) the Class 1-B1 Certificates, (vi) the Class 1-B2 Certificates,
(vii) the Class 1-B3 Certificates, (viii) the Class 1-B4 Certificates, (ix)
the
Class 1-B5 Certificates, (x) the Class 1-B6 Certificates, (xi) the Class 1-P
Certificates, (xii) the Class 2-A1A Certificates, (xiii) the Class 2-A1B
Certificates, (xiv) the Class 2-A1C Certificates, (xv) the Class 2-X
Certificates, (xvi) the Class 2-X-B Certificates, (xvii) the Class 2-PO
Certificates, (xviii) the Class 2-PO-B Certificates, (xix) the Class 2-B1
Certificates, (xx) the Class 2-B2 Certificates, (xxi) the Class 2-B3
Certificates, (xxii) the Class 2-B4 Certificates, (xxiii) the Class 2-B5
Certificates, (xxiv) the Class 2-B6 Certificates and (xxv) the Class 2-P
Certificates.
For
federal income tax purposes, the Trust Fund (exclusive of the assets held in
the
Basis Risk Reserve Funds, the Yield Maintenance Agreements, the Yield
Maintenance Account (collectively, the “Excluded
Trust Assets”))
comprises two REMICs in a tiered REMIC structure - the “Lower-Tier
REMIC”
and
the
“Upper
Tier REMIC”.
Each
Certificate, other than the Class A-R Certificate, shall represent ownership
of
a regular interest in the Upper-Tier REMIC, as described herein. In addition,
the Class 1-A1, Class 1-A2, Class 1-B1, Class 1-B2, Class 2-A1A, Class 2-A1B,
Class 2-A1C and the Group 2 Subordinate Certificates represent the right to
receive payments in respect of Basis Risk Shortfalls from the Group 1 Basis
Risk
Reserve Fund, Group 2-A Basis Risk Reserve Fund and the Group 2-B Basis Risk
Reserve Fund, as applicable, as provided in Section 5.08, and the Class 1-A1,
Class 1-A2, Class 1-B1, Class 1-B2, Class 2-A1A, Class 2-A1B, and Class 2-A1C
Certificates represent the right to receive payments in respect of Basis Risk
Shortfalls from the Yield Maintenance Account as provided in Section 4.04.
The
owners of the Class 1-X Certificates beneficially own the Group 1 Basis Risk
Reserve Fund and the portion of the Yield Maintenance Account related to Group
1. The owners of the Class 2-X Certificates beneficially own the Group 2-A
Basis
Risk Reserve Fund and the portion of the Yield Maintenance Account related
to
Group 2. The owners of the Class 2-X-B Certificates beneficially own the Group
2-B Basis Risk Reserve Fund. The Class A-R Certificate represents the sole
class
of residual interest in each REMIC.
The
Lower-Tier REMIC will hold as its assets all of the assets constituting the
Trust Fund (exclusive of the Excluded Trust Assets) and will issue interests
(the “Lower-Tier
Regular Interests”)
(which
will be uncertificated and will represent the regular interests in the
Lower-Tier REMIC) and a residual interest (the “Class LT-R Interest”) which will
also be uncertificated and which will represent the sole class of residual
interest in the Lower-Tier REMIC. The Trustee will hold the Lower-Tier Regular
Interests as assets of the Upper-Tier REMIC.
For
purposes of the REMIC Provisions, the startup day for the Lower-Tier REMIC
and
the Upper-Tier REMIC is the Closing Date. All REMIC regular and residual
interests created hereby will be retired on or before the Latest Possible
Maturity Date.
Lower-Tier
REMIC
The
following table specifies the designation, interest rate, and initial principal
amount for each interest in the Lower-Tier REMIC:
|
Designation
|
Interest
Rate
|
Initial
Principal
Balance
|
Corresponding
Class of Certificate
|
|||||||
|
LT1-A1
|
(1)
|
$
|
44,735,500.00
|
Class-1-A1
|
||||||
|
LT1-A2
|
(1)
|
$
|
70,761,750.00
|
Class
1-A2
|
||||||
|
LT1-AR
|
(1)
|
$
|
25.00
|
Class
A-R
|
||||||
|
LT1-B1
|
(1)
|
$
|
3,458,500.00
|
Class
1-B1
|
||||||
|
LT1-B2
|
(1)
|
$
|
1,482,250.00
|
Class
1-B2
|
||||||
|
LT1-B3
|
(1)
|
$
|
988,250.00
|
Class
1-B3
|
||||||
|
LT1-B4
|
(1)
|
$
|
926,500.00
|
Class
1-B4
|
||||||
|
LT1-B5
|
(1)
|
$
|
679,500.00
|
Class
1-B5
|
||||||
|
LT1-B6
|
(1)
|
$
|
494,049.32
|
Class
1-B6
|
||||||
|
LT1-SG-A1
|
(2)
|
$
|
47,720,986.35
|
N/A
|
||||||
|
LT1-SC-A1
|
(2)
|
$
|
124,394.22
|
N/A
|
||||||
|
LT1-SG-A2
|
(3)
|
$
|
75,484,175.99
|
N/A
|
||||||
|
LT1-SC-A2
|
(3)
|
$
|
196,767.75
|
N/A
|
||||||
|
LT1-Q
|
(1)
|
$
|
247,052,648.63
|
N/A
|
||||||
|
LT2-A1A
|
(4)
|
$
|
71,421,000.00
|
Class
2-A1A
|
||||||
|
LT2-A1B
|
(4)
|
$
|
29,758,750.00
|
Class
2-A1B
|
||||||
|
LT2-A1C
|
(4)
|
$
|
17,855,250.00
|
Class
2-A1C
|
||||||
|
LT2-AZ
|
(4)
|
$
|
2,380,700.00
|
N/A
|
||||||
|
LT-2-AY
|
(4)
|
$
|
2,380,700.00
|
N/A
|
||||||
|
LT2-AQ
|
(4)
|
$
|
114,273,650.00
|
N/A
|
||||||
|
LT2-B1
|
(4)
|
$
|
4,554,000.00
|
Class
2-B1
|
||||||
|
LT2-B2
|
(4)
|
$
|
2,081,500.00
|
Class
2-B2
|
||||||
|
LT2-B3
|
(4)
|
$
|
1,301,000.00
|
Class
2-B3
|
||||||
|
LT2-B4
|
(4)
|
$
|
1,301,000.00
|
Class
2-B4
|
||||||
|
LT2-B5
|
(4)
|
$
|
1,040,500.00
|
Class
2-B5
|
||||||
|
LT2-B6
|
(4)
|
$
|
780,597.04
|
Class
2-B6
|
||||||
|
LT2-BZ
|
(4)
|
$
|
221,171.94
|
N/A
|
||||||
|
LT2-BY
|
(4)
|
$
|
221,171.94
|
N/A
|
||||||
|
LT2-BQ
|
(4)
|
$
|
10,616,303.16
|
N/A
|
||||||
|
LT-R
|
(5)
|
(5)
|
N/A
|
|||||||
2
__________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Regular Interests shall equal the Group
1 Net
WAC.
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Regular Interests shall equal the Group
1-A1
Net WAC.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Regular Interests shall equal the Group
1-A2
Net WAC.
|
|
(4)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower-Tier Regular Interests shall equal the Group
2 Net
WAC.
|
|
(5)
|
The
Class LT-R Interest does not have a principal balance and does not
bear
interest.
|
On
each
Distribution Date, Available Funds for Loan Group 1 shall be distributed as
principal on Lower-Tier Regular Interests having an “LT1” in their designation
as follows:
|
(i)
|
first,
to the Class LT1-SC-A1 Interest until the principal balance of such
Lower-Tier Regular Interest equals one percent of the Subordinate
Component for Loan Subgroup 1-A1 for the next succeeding Distribution
Date;
|
|
(ii)
|
second,
to the Class LT1-SC-A2 Interest until the principal balance of such
Lower-Tier Regular Interest equals one percent of the Subordinate
Component for Loan Subgroup 1-A2 for the next succeeding Distribution
Date;
|
|
(iii)
|
third,
to the LT1-SC-A1 or the LT1-SC-A2 Interest the amount necessary to
cause
the ratio of the principal balance of the LT1-SC-A1 Interest to the
principal balance of the LT1-SC-A2 Interest to equal the ratio of
the
Subordinate Component for Loan Subgroup 1-A1 to the Subordinate Component
for Loan Subgroup 1-A2 for the immediately succeeding Distribution
Date;
|
(iv)
fourth, to the Class LT1-SG-A1 and the Class LT1-SG-A2 Interests concurrently,
as follows:
(a) To
the
Class LT1-SG-A1 Interest until its principal balance equals the difference
between (I) 25% of the Loan Subgroup Balance for Loan Subgroup 1-A1 for the
next
Distribution Date, minus (II) the principal balance of the Class LT1-SC-A1
Interest on such Distribution Date, taking into account the distributions under
priorities (i) and (iii) above; and
3
(b) To
the
Class LT1-SG-A2 Interest until its principal balance equals the difference
between (I) 25% of the Loan Subgroup Balance for Loan Subgroup 1-A2 for the
next
Distribution Date, minus (II) the principal balance of the Class LT1-SC-A2
Interest on such Distribution Date, taking into account the distributions under
priorities (ii) and (iii) above;
|
(v)
|
fifth,
concurrently to the LT1-A1, LT1-A2, LT1-AR, LT1-B1, LT1-B2, LT1-B3,
LT1-B4, LT1-B5, and LT1-B6 Interests until the principal balance
of each
such Lower-Tier Regular Interest equals 25% of the Class Principal
Balance
of the Corresponding Class of Certificates for immediately after
such
Distribution Date;
|
(vi)
sixth, to the LT1-Q Interest until its principal balance equals the excess,
if
any, of (I) the aggregate of the Class Principal Balances for the Group 1
Certificates immediately after such Distribution Date over (II) the aggregate
of
the principal balances of the Lower-Tier Regular Interests having an “LT1” in
their designation (other than the LT1-Q Interest) after taking into account
distributions on such Distribution Date under priorities (i) through (v), above;
and
(vii)
finally, to the Lower-Tier Regular Interests having an “LT1” in their
designation, as distributions of interest at the interest rates shown in the
table above.
On
each
Distribution Date, Realized Losses attributable to principal with respect
to
Loan Group 1 shall each be allocated among the Lower-Tier Regular Interests
having an “LT1” in their designation in the same manner that principal is
distributed among such Lower-Tier Regular Interests. On
each
Distribution Date, Prepayment Penalty Amounts for such Distribution Date
with
respect to Loan Group 1 shall be distributed on the LT1-Q Interest.
On
each
Distribution Date, Available Funds for Loan Group 2 shall be distributed as
principal on Lower-Tier Regular Interests having an “LT2” in their designation
as follows:
(i)
first, to the ▇▇▇-▇▇, ▇▇▇-▇▇, ▇▇▇-▇▇, and LT2-BY Interests in reduction of
their
principal balances as follows -
| (a) |
to
the LT2-AZ Interest the amount, if any, required to reduce (I) the
principal balance of the LT2-AZ Interest to the LT2-AZ Target Balance
for
such Distribution Date;
|
| (b) |
to
the LT2-AY Interest the amount, if any, required to reduce (I) the
principal balance of the LT2-AY Interest to the LT2-AY Target Balance
for
such Distribution Date,
|
| (c) |
concurrently
to the LT2-AZ and LT2-AY Interests in proportion to their principal
balances, after taking into account distributions pursuant to priorities
(a) and (b) above, until the sum of their principal balances equals
2% of
the aggregate of the Class Principal Balances of the Class 2-A1A,
Class
2-A1B, Class 2-A1C, and Class 2-PO Certificates immediately after
such
Distribution Date;
|
4
| (d) |
to
the LT2-BZ Interests the amount, if any, required to reduce the principal
balance of the LT2-BZ Interest to the LT2-BZ Target Balance for such
Distribution Date;
|
| (e) |
to
the LT2-BY Interests the amount, if any, required to reduce the principal
balance of the LT2-BY Interest to the LT2-BY Target Balance for such
Distribution Date; and
|
| (f) |
concurrently
to the LT2-BZ and LT2-BY Interests in proportion to their principal
balances, after taking into account distributions pursuant to priorities
(a) and (b) above, until the sum of their principal balances equals
2% of
the aggregate of the Class Principal Balances of the Group 2 Subordinate
Certificates and the Class 2-PO-B Certificates immediately after
such
Distribution Date;
|
| (ii) |
second,
concurrently to the LT2-A1A, LT2-A1B, LT2-A1C, LT2-B1, LT2-B2, LT2-B3,
LT2-B4, LT2-B5, and LT2-B6 Interests until the principal balance
of each
such Lower-Tier Regular Interest equals 50% of the Class Principal
Balance
of the Corresponding Class of Certificates immediately after such
Distribution Date;
|
| (iii) |
third,
concurrently to the LT2-AQ and the LT2-BQ Interests
until;
|
| (a) |
the
principal balance of the LT2-AQ Interest equals the excess, if any,
of (I)
the aggregate of the Class Certificate Class Principal Balances of
the
Class 2-A1A, Class 2-A1B, Class 2-A1C, and Class 2-PO Certificates
immediately after such Distribution Date over (II) the aggregate
of the
principal balances of the LT2-A1A, LT2-A1B, LT2-A1C, LT2-AZ, and
LT2-AY
Interests after taking into account distributions made pursuant to
priorities (i) and(ii) on such Distribution Date: and
|
| (b) |
the
principal balance of the LT-BQ Interest equals the excess, if any,
of the
aggregate of the Class Principal Balances of the Subordinate Certificates
and the Class 2-PO Certificates immediately after such Distribution
Date
over (b) the aggregate of the principal balances of the LT2-B1, LT2-B2,
LT2-B3, LT2-B4, LT2-B5, LT2-B6, LT2-BZ, and LT2-BY Interests after
taking
into account the distributions made pursuant to priorities (i) and
(ii)
above on such Distribution Date;
|
| (iv) |
finally,
to the Lower-Tier Regular Interests having an “LT2” in their designation,
as distributions of interest at the interest rates shown in the table
above, provided,
however,
that any Net Deferred Interest will be allocated among and increase
the
principal balances of the Lower-Tier Regular Interests in the same
order
of priority in which principal is distributed among such Lower-Tier
Regular Interests pursuant to priorities (i)(c)&(f), (ii), and (iii)
above.
|
5
On
any
Distribution Date, after all distributions of Available Funds with respect
to
Loan Group 2, Realized Losses shall be allocated among the Lower-Tier Regular
Interests in the same order of priority in which principal is distributed
among
such Lower-Tier Regular Interests pursuant to priorities (i) through (iii)
above.
On each
Distribution Date, Prepayment Penalty Amounts for such Distribution Date
with
respect to Loan Group 2 shall be distributed on the LT2-AQ and LT2-BQ Interests
in proportion to their respective principal balances immediately before such
Distribution Date.
Upper
Tier REMIC
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate and Original Class Principal Balance for each Class of Certificates
comprising one or more regular interests in the REMIC created hereunder, each
of
which, except for the Class A-R Certificate, is hereby designated a REMIC
regular interest in the Upper Tier REMIC for purposes of the REMIC
Provisions:
|
Class
|
Original
Class Certificated Principal Balance or
Class
Notional Balance
|
Pass-Through
Rate
|
||||||
| Class 1-A1 | $ |
178,942,000.00
|
(1) | |||||
|
Class
1-A2
|
$
|
283,047,000.00
|
(1)
|
|||||
|
Class
1-X
|
$
|
494,105,297.26
|
(Notional)(2) |
(1)
|
||||
|
Class
A-R (8)
|
$
|
100.00
|
(1)
|
|||||
|
Class
1-B1
|
$
|
13,834,000.00
|
(1)
|
|||||
|
Class
1-B2
|
$
|
5,929,000.00
|
(1)
|
|||||
|
Class
1-B3
|
$
|
3,953,000.00
|
(1)
|
|||||
|
Class
1-B4
|
$
|
3,706,000.00
|
(1)
|
|||||
|
Class
1-B5
|
$
|
2,718,000.00
|
(1)
|
|||||
|
Class
1-B6
|
$
|
1,976,197.26
|
(1)
|
|||||
|
Class
1-P
|
$
|
50.00
|
(7) |
0.00
|
%
|
|||
|
Class
2-A1A
|
$
|
142,842,000.00
|
(1)
|
|||||
|
Class
2-A1B
|
$
|
59,517,500.00
|
(1)
|
|||||
|
Class
2-A1C
|
$
|
35,710,500.00
|
(1)
|
|||||
|
Class
2-X
|
$
|
238,070,050.00
|
(Notional)(3) |
(1)
|
||||
|
Class
2-X-B
|
$
|
22,117,244.08
|
(Notional)(4) |
(1)
|
||||
|
Class
2-PO
|
$
|
50.00
|
(5) |
(1)
|
||||
|
Class
2-PO-B
|
$
|
50.00
|
(6) |
(1)
|
||||
|
Class
2-B1
|
$
|
9,108,000.00
|
(1)
|
|||||
|
Class
2-B2
|
$
|
4,163,000.00
|
(1)
|
|||||
|
Class
2-B3
|
$
|
2,602,000.00
|
(1)
|
|||||
|
Class
2-B4
|
$
|
2,602,000.00
|
(1)
|
|||||
|
Class
2-B5
|
$
|
2,081,000.00
|
(1)
|
|||||
|
Class
2-B6
|
$
|
1,561,194.08
|
(1)
|
|||||
|
Class
2-P
|
$
|
50.00
|
(7) |
0.00
|
%
|
|||
____________
|
(1)
|
Calculated
pursuant to the definition of “Pass-Through
Rate.”
|
|
(2)
|
For
purposes of the REMIC provisions, the Class 1-X Certificates shall
accrue
interest on a notional balance equal to the sum of the principal
balances
of the Lower-Tier Regular Interests having an “LT1” in their designation
on the first day of the related Accrual Period . For purposes of
the REMIC
Provisions, interest shall accrue on the Class 1-X Certificate at
a rate
equal to the excess, if any, of (i) the Group 1 Net WAC over (ii)
the
Group 1 Adjusted Lower-Tier WAC.
|
6
|
(3)
|
For
purposes of the REMIC provisions, the Class 2-X Certificates shall
accrue
interest on a notional balance equal to the sum of the principal
balances
of the LT2-A1A,
LT2-A1B, LT2-A1C, LT2-AZ, LT2-AY, and LT2-AQ Interests . For purposes
of
the REMIC Provisions, interest shall accrue on the Class 2-X Certificate
at a rate equal to the excess, if any, of (i) the Group 2 Adjusted
Net WAC
over (ii) the Group 2A Adjusted Lower-Tier WAC.
|
|
(4)
|
For
purposes of the REMIC provisions, the Class 2-X-B Certificates shall
accrue interest on a notional balance equal to the sum of the principal
balances of the LT2-B1,
LT2-B2, LT2-B3, LT2-B4, LT2-B5, LT2-B6, LT2-BZ, LT2-BY, and LT2-BQ
Interests . For purposes of the REMIC Provisions, interest shall
accrue on
the Class 2-X-B Certificate at a rate equal to the excess, if any,
of (i)
the Group 2 Adjusted Net WAC over (ii) the Group 2 Subordinate Adjusted
Lower-Tier WAC
|
|
(5)
|
For
purposes of the REMIC Provisions, the Class 2-PO Certificates shall
accrue
interest on a notional balance equal to the sum of the principal
balances
of the LT2-A1A, LT2-A1B, LT2-A1C, LT2-AZ, LT2-AY, and LT2-AQ Interests.
For purposes of the REMIC Provisions, interest shall accrue on the
Class
2-PO Certificates at a rate equal to the excess of (i) the Group
2 Net WAC
over (ii) the Group 2A Adjusted Middle-Tier Pay Rate. Any interest
accrued
on the Class 2-PO Certificates will not be paid currently but shall
increase the Class Principal Balance of the Class 2-PO
Certificates.
|
|
(6)
|
For
purposes of the REMIC Provisions, the Class 2-PO-B Certificates shall
accrue interest on a notional balance equal to the sum of the principal
balances of the LT2-B1, LT2-B2, LT2-B3, LT2-B4, LT2-B5, LT2-B6, LT2-BZ,
LT2-BY, and LT2-BQ I Interests. For purposes of the REMIC Provisions,
interest shall accrue on the Class 2-PO-B Certificates at a rate
equal to
the excess of (i) the Group 2 Net WAC over (ii) the Group 2 Subordinate
Adjusted Middle-Tier Pay Rate. Any interest accrued on the Class
2-PO-B
Certificates will not be paid currently but shall increase the Class
Principal Balances of the Class 2-PO-B
Certificates.
|
|
(7)
|
The
Class 1-P and Class 2-P Certificates do not have Pass-Through Rates,
but
are entitled to Prepayment Penalty Amounts with respect to Loan Group
1
and Loan Group 2, respectively.
|
|
(8)
|
For
purposes of the REMIC provisions, the Class A-R Certificate represents
ownership of (i) the Class LT-R Interest, which is the sole residual
interest in the Lower-Tier REMIC, and (ii) the sole class of residual
interest in the Upper-Tier REMIC.
|
ARTICLE
I
DEFINITIONS;
DECLARATION OF TRUST
SECTION
1.01. Defined Terms.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. All calculations of interest described herein shall
be made on the basis of an assumed 360-day year consisting of twelve 30-day
months unless otherwise indicated in this Agreement.
“1122
Subservicer”:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer, and (iii) is responsible
for
the performance (whether directly or through subservicers or subcontractors)
of
Servicing functions required to be performed under this Agreement, any related
Servicing Agreement or any subservicing agreement that are identified in Item
1122(d) of Regulation AB.
7
“1122
Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a 1122 Subservicer of any
Servicer), the Master Servicer, the Trustee or the Securities
Administrator.
“1-X
Required Reserve Fund Deposit”:
With
respect to the Class 1-X Certificates and any Distribution Date, an amount
equal
to the lesser of (i) the Interest Distributable Amount for the Class 1-X
Certificates for such Distribution Date (after any reduction in the Interest
Distributable Amount due to Net Interest Shortfalls on such Distribution Date)
and (ii) the amount required to bring the balance on deposit in the Group 1
Basis Risk Reserve Fund up to an amount equal to the Basis Risk Shortfalls
for
such Distribution Date with respect to the Class 1-A1, Class 1-A2, Class 1-B1
and Class 1-B2 Certificates, after giving effect to distributions of payments
made pursuant to the related Yield Maintenance Agreements.
“2-X
Required Reserve Fund Deposit”:
With
respect to the Class 2-X Certificates and any Distribution Date, an amount
equal
to the lesser of (i) the Interest Distributable Amount for the Class 2-X
Certificates for such Distribution Date (after giving effect to such
Certificate’s share of any Net Deferred Interest applicable to the Group 2
Mortgage Loans and after any reduction in the Interest Distributable Amount
due
to Net Interest Shortfalls on such Distribution Date) and (ii) the amount
required to bring the balance on deposit in the Group 2-A Basis Risk Reserve
Fund up to an amount equal to the Basis Risk Shortfalls for such Distribution
Date with respect to the Class 2-A1A, Class 2-A1B and Class 2-A1C Certificates,
after giving effect to distributions of payments made pursuant to the related
Yield Maintenance Agreement.
“2-X-B
Required Reserve Fund Deposit”:
With
respect to the Class 2-X-B Certificates and any Distribution Date, an amount
equal to the lesser of (i) the Interest Distributable Amount for the Class
2-X-B
Certificates for such Distribution Date (after giving effect to such
Certificate’s share of any Net Deferred Interest applicable to the Group 2
Mortgage Loans and after any reduction in the Interest Distributable Amount
due
to Net Interest Shortfalls on such Distribution Date) and (ii) the amount
required to bring the balance on deposit in the Group 2-B Basis Risk Reserve
Fund up to an amount equal to the Basis Risk Shortfalls for such Distribution
Date with respect to the Group 2 Subordinate Certificates.
“Accepted
Master Servicing Practices”:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that master
service mortgage loans of the same type and quality as such Mortgage Loan in
the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee (as successor Master Servicer) or the Master Servicer
(except in its capacity as successor to a Servicer), or (y) as provided in
the
applicable Servicing Agreement, to the extent applicable to any Servicer, but
in
no event below the standard set forth in clause (x).
“Account”:
The
Distribution Account, the Yield Maintenance Account, each Basis Risk Reserve
Fund or each Servicing Account, as the context requires.
8
“Accrual
Period”:
With
respect to each Distribution Date and the LIBOR Certificates, the period
beginning on the immediately preceding Distribution Date (or the Closing Date,
in the case of the first Distribution Date) and ending on date immediately
preceding such Distribution Date. Interest for such Classes will be calculated
based upon a 360-day year and the actual number of days in each Accrual Period.
With respect to each Distribution Date and any Class of Lower-Tier Regular
Interests and the Class 1-X, Class A-R, Class 1-B3, Class 1-B4, Class 1-B5,
Class 1-B6, Class 2-X and Class 2-X-B Certificates, the calendar month prior
to
the month of such Distribution Date. Interest for such Lower-Tier Regular
Interests and such Classes will be calculated based upon a 360-day year
consisting of twelve 30-day months in each Accrual Period.
“Additional
Disclosure Notification”:
As
defined in Section 3.19(a).
“Additional
Form 10-D Disclosure”:
As
defined in Section 3.19(a).
“Additional
Form 10-K Disclosure”:
As
defined in Section 3.19(b).
“Additional
Servicer”:
Each
affiliate of each Servicer that Services any of the Mortgage Loans and each
Person who is not an affiliate of the any Servicer, who Services 10% or more
of
the Mortgage Loans. For clarification purposes, the Master Servicer and the
Securities Administrator are Additional Servicers.
“Adjusted
Cap Rate”:
Either
of the Group 2 Adjusted Cap Rate or the Group 2 IO Adjusted Cap
Rate.
“Adjustment
Date”:
With
respect to each Mortgage Loan, each adjustment date on which the related Loan
Rate changes pursuant to the related Mortgage Note. The first Adjustment Date
following the Cut-Off Date as to each Mortgage Loan is set forth in the Mortgage
Loan Schedule.
“Advance”:
As to
any Mortgage Loan or REO Property, any advance made by the Master Servicer
(including the Trustee in its capacity as successor Master Servicer) in respect
of any Distribution Date pursuant to Section 5.05.
“Adverse
REMIC Event”:
Either
(i)
the loss of status as a REMIC, within the meaning of Section 860D of the Code,
for any group of assets identified as a REMIC in the Preliminary Statement
to
this Agreement, or (ii) the imposition of any tax, including the tax imposed
under Section 860F(a)(1) on prohibited transactions and the tax imposed under
Section 860G(d) on certain contributions to a REMIC, on any REMIC created
hereunder to the extent such tax would be payable from assets held as part
of
the Trust Fund.
“Affiliate”:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
9
“Agreement”:
This
Pooling and Servicing Agreement, dated as of February 1, 2006, as amended,
supplemented and otherwise modified from time to time.
“Applicable
Credit Support Percentage”:
As
defined in Section 5.01(e).
“Apportioned
Principal Balance”:
As to
any Class of Subordinate Certificates, a Loan Group or Loan Subgroup and any
Distribution Date, the Class Principal Balance of such Class immediately prior
to such Distribution Date multiplied by a fraction, the numerator of which
is
the Subordinate Component for the related Loan Group or Loan Subgroup for such
date and the denominator of which is the sum of the Subordinate Components
(in
the aggregate).
“Assignment”:
As to
any Mortgage, an assignment of mortgage, notice of transfer or equivalent
instrument, in recordable form, which is sufficient, under the laws of the
jurisdiction in which the related Mortgaged Property is located, to reflect
or
record the sale of such Mortgage.
“Available
Funds”:
As to
any Distribution Date and any Loan Group or Loan Subgroup, as applicable, an
amount equal to (i) the sum, without duplication, of (a) the aggregate
of the related Monthly Payments received on or prior to the related
Determination Date (excluding Monthly Payments due in future Due Periods but
received by the related Determination Date) in respect of the Mortgage Loans
in
that Loan Group or Loan Subgroup, (b) Net Liquidation Proceeds, Insurance
Proceeds, Principal Prepayments (but not including Prepayment Penalty Amounts),
Recoveries and other unscheduled recoveries of principal and interest in respect
of the Mortgage Loans in that Loan Group or Loan Subgroup received during the
related Prepayment Period, (c) the aggregate of any amounts received in respect
of related REO Properties for such Distribution Date, (d) the aggregate of
any amounts of Interest Shortfalls (excluding for such purpose all shortfalls
as
a result of Relief Act Reductions) paid by the Servicers pursuant to the related
Servicing Agreements and Compensating Interest Payments deposited in the
Distribution Account for such Distribution Date in respect of the Mortgage
Loans
in that Loan Group or Loan Subgroup, (e) the aggregate of the Purchase
Prices, Substitution Adjustments and amounts collected for purchases pursuant
to
Sections 2.03 or 3.25 deposited in the Distribution Account during the related
Prepayment Period in respect of the Mortgage Loans in that Loan Group or Loan
Subgroup, (f) the aggregate of any Advances made by the Servicers and the
Master Servicer for such Distribution Date in respect of the Mortgage Loans
in
that Loan Group or Loan Subgroup, (g) the aggregate of any Advances made by
the Trustee (as successor Master Servicer) for such Distribution Date pursuant
to Section 7.02 hereof in respect of the Mortgage Loans in that Loan Group
or
Loan Subgroup (h) the Termination Price allocated to such Loan Group on the
Distribution Date on which the Trust Fund is terminated and (i) the applicable
Class P Contribution; minus
(ii) the sum of (w) the Expense Fees for such Distribution Date in
respect of the Mortgage Loans in that Loan Group or Loan Subgroup, (x) amounts
in reimbursement for Advances previously made in respect of the Mortgage Loans
in that Loan Group or Loan Subgroup and other amounts as to which the Servicers,
the Trustee, the Securities Administrator and the Master Servicer are entitled
to be reimbursed pursuant to Section 4.03, (y) the amount payable to the
Trustee, the Master Servicer, the Custodian or the Securities Administrator
pursuant to Section 8.05, Section 3.30 and Section 3.31(c) in respect of
Mortgage Loans in that Loan Group or Loan Subgroup or if not related to a
Mortgage Loan, allocated to each Loan Group or Loan Subgroup on a pro
rata
basis
and (z) amounts deposited in the Distribution Account, as the case may be,
in
error, in respect of Mortgage Loans in that Loan Group or Loan Subgroup, in
each
case without duplication.
10
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Basis
Risk Reserve Fund”:
Any of
the Group 1 Basis Risk Reserve Fund, the Group 2-A Basis Risk Reserve Fund
or
the Group 2-B Basis Risk Reserve Fund.
“Basis
Risk Shortfall”:
With
respect to any Distribution Date and the LIBOR Certificates, the sum
of:
(i) the
excess, if any, of the Interest Distributable Amount that such Class would
have
been entitled to receive if the Pass-Through Rate for such Class were calculated
without regard to clause (ii) in the definition thereof, over the actual
Interest Distributable Amount such Class is entitled to receive for such
Distribution Date;
(ii) any
excess described in clause (i) above remaining unpaid from prior Distribution
Dates; and
(iii) interest
for the applicable Accrual Period on the amount described in clause (ii) above
based on the applicable Pass-Through Rate, determined without regard to clause
(ii) in the definition thereof.
“Book-Entry
Certificates”:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a Person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in Section 6.02
hereof). On the Closing Date, all Classes of the Certificates other than the
Physical Certificates shall be Book-Entry Certificates.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings
institutions in the State of California, the State of Minnesota, the State
of
Maryland, the State of New York or in the city in which the Corporate Trust
Office of the Trustee is located are authorized or obligated by law or executive
order to be closed.
“Call
Option”:
The
right to terminate this Agreement and the Trust pursuant to the second paragraph
of Section 10.01(a) hereof.
“Call
Option Date”:
As
defined in Section 10.01(a) hereof.
“Certificate”:
Any
Regular Certificate, Residual Certificate or Class P Certificate.
“Certificate
Notional Balance”:
With
respect to the Notional Certificates and any date of determination, the product
of (i) the Class Notional Balance of such Class and (ii) the applicable
Percentage Interest of such Certificate.
11
“Certificate
Owner”:
With
respect to each Book-Entry Certificate, any beneficial owner thereof and with
respect to each Physical Certificate, the Certificateholder
thereof.
“Certificate
Principal Balance”:
With
respect to each Certificate of a given Class (other than the Interest-Only
Certificates and the Class P Certificates) and any date of determination, the
product of (i) the Class Principal Balance of such Class and (ii) the applicable
Percentage Interest of such Certificate.
“Certificate
Register”
and
“Certificate
Registrar”:
The
register maintained and registrar appointed pursuant to Section 6.02
hereof.
“Certificateholder”
or
“Holder”:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that a Disqualified Organization or non-U.S. Person shall not be a Holder
of a Residual Certificate for any purpose hereof.
“Certification
Parties”:
As
defined in Section 3.18.
“Certifying
Person”:
As
defined in Section 3.18.
“Class”:
Collectively, Certificates that have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
1-A1 Certificate”:
Any of
the Class 1-A1 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
1-A2 Certificate”:
Any of
the Class 1-A2 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
1-B1 Certificate”:
Any of
the Class 1-B1 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
1-B2 Certificate”:
Any of
the Class 1-B2 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
12
“Class
1-B3 Certificate”:
Any of
the Class 1-B3 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
1-B4 Certificate”:
Any of
the Class 1-B4 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
1-B5 Certificate”:
Any of
the Class 1-B5 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
1-B6 Certificate”:
Any of
the Class 1-B6 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
1-P Certificate”:
The
Class 1-P Certificate as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit B-2, evidencing
the ownership of the Class 1-P Distributable Amount.
“Class
1-P Distributable Amount”:
With
respect to each Distribution Date, all Prepayment Penalty Amounts in respect
of
the Group 1 Mortgage Loans received by the Master Servicer for the related
Prepayment Period.
“Class
1-X Certificate”:
Any of
the Class 1-X Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit C-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-A1A Certificate”:
Any of
the Class 2-A1A Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
2-A1B Certificate”:
Any of
the Class 2-A1B Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
13
“Class
2-A1C Certificate”:
Any of
the Class 2-A1C Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
2-B1 Certificate”:
Any of
the Class 2-B1 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-B2 Certificate”:
Any of
the Class 2-B2 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-B3 Certificate”:
Any of
the Class 2-B3 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-B4 Certificate”:
Any of
the Class 2-B4 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-B5 Certificate”:
Any of
the Class 2-B5 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-B6 Certificate”:
Any of
the Class 2-B6 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-P Certificate”:
The
Class 2-P Certificate as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit B-2, evidencing
the ownership of the Class 2-P Distributable Amount.
14
“Class
2-P Distributable Amount”:
With
respect to each Distribution Date, all Prepayment Penalty Amounts in respect
of
the Group 2 Mortgage Loans received by the Master Servicer for the related
Prepayment Period.
“Class
2-PO Certificate”:
Any of
the Class 2-PO Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit C-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-PO-B Certificate”:
Any of
the Class 2-PO-B Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit C-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-X Certificate”:
Any of
the Class 2-X Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit C-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-X-B Certificate”:
Any of
the Class 2-X-B Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit C-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
A-R Certificate”:
The
Class A-R Certificate as designated on the face thereof executed by the
Securities Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit B-1, evidencing
the ownership of the sole class of “residual interest” in the Upper-Tier REMIC
created hereunder and representing the right to distributions as set forth
herein and therein.
“Class
LT-R Interest”:
As
described in the Preliminary Statement.
“Class
MT-R Interest”:
As
described in the Preliminary Statement.
“Class
Notional Balance”:
With
respect to (i) the Class 1-X Certificates and any Distribution Date, the
aggregate Class Principal Balance of the Group 1 Certificates (other than the
Class 1-X Certificates) on the immediately preceding Distribution Date, (ii)
the
Class 2-X Certificates and any Distribution Date, the aggregate Class Principal
Balance of the Class 2-A1A, Class 2-A1B, Class 2-A1C and Class 2-PO Certificates
on the immediately preceding Distribution Date and (iii) the Class 2-X-B
Certificates and any Distribution Date, the aggregate Class Principal Balance
of
the Group 2 Subordinate Certificates and the Class 2-PO-B Certificates on the
immediately preceding Distribution Date.
15
“Class
P Certificates”:
The
Class 1-P and Class 2-P Certificates.
“Class
P Contribution”:
With
respect to Loan Subgroup 1-A1, a contribution by the Depositor to the
Distribution Account on or before the first Distribution Date in the amount
of
$50, which shall be included in Available Funds with respect to Loan Subgroup
1-A1 for the first Distribution Date, and, with respect to Loan Group 2, a
contribution by the Depositor to the Distribution Account on or before the
first
Distribution Date in the amount of $50, which shall be included in Available
Funds for Loan Group 2 for the first Distribution Date.
“Class
PO Certificates”:
The
Class 2-PO and Class 2-PO-B Certificates.
“Class
Principal Balance”:
As to
any Distribution Date, with respect to any Class of Certificates (other than
the
Interest-Only Certificates), the Original Class Principal Balance as reduced
by
the sum of (x) all amounts actually distributed in respect of principal of
that
Class on all prior Distribution Dates, (y) all Realized Losses, if any, actually
allocated to that Class on all prior Distribution Dates and (z) in the case
of
the Subordinate Certificates, any applicable Writedown Amount; provided,
however,
that
pursuant to Section 5.10, the Class Principal Balance of a Class of Certificates
may be increased up to the amount of Realized Losses previously allocated to
such Class, in the event that there is a Recovery on a Mortgage Loan, and the
Certificate Principal Balance of any individual Certificate of such Class will
be increased by its pro
rata
share of
the increase to such Class.
“Class
Subordination Percentage”:
With
respect to each Class of Group 1 Subordinate Certificates and any Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
Class Principal Balance of such Class immediately before such Distribution
Date
and the denominator of which is the aggregate of the Class Principal Balances
of
all Classes of Group 1 Certificates immediately before such Distribution Date.
With respect to each Class of Group 2 Subordinate Certificates and any
Distribution Date, the percentage equivalent of a fraction the numerator of
which is the Class Principal Balance of such Class immediately before such
Distribution Date and the denominator of which is the aggregate of the Class
Principal Balances of all Classes of Group 2 Certificates immediately before
such Distribution Date.
“Close
of Business”:
As
used herein, with respect to any Business Day and location, 5:00 p.m. at such
location.
“Closing
Date”:
February 22, 2006.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Commission”:
U.S.
Securities and Exchange Commission.
“Compensating
Interest Payment”:
With
respect to any Distribution Date, an
amount
equal to the amount, if any, by which (x) the aggregate
amount
of any Interest Shortfalls (excluding for such purpose all shortfalls as a
result of Relief Act Reductions) required to be paid by the Servicers pursuant
to the related Servicing Agreement with respect to such Distribution Date,
exceeds (y) the aggregate amount actually paid by the Servicers in respect
of
such shortfalls; provided,
that
such
amount, to the extent payable by the Master Servicer, shall not exceed the
aggregate Master Servicing Fee that would be payable to the Master Servicer
in
respect of such Distribution Date without giving effect to any Compensating
Interest Payment.
16
“Controlling
Person”:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
“Converted
Mortgage Loan”:
Any
Mortgage Loan as to which the Mortgagor thereunder has exercised its right
under
the related Mortgage Note to convert the adjustable Loan Rate thereon to a
fixed
Loan Rate.
“Converted
Mortgage Loan Schedule”:
With
respect to each Distribution Date, a schedule listing each Convertible Mortgage
Loan that has become a Converted Mortgage Loan during the immediately preceding
Due Period, and the Purchase Price for each such Converted Mortgage Loan in
the
form attached hereto as Schedule II.
“Convertible
Mortgage Loan”:
Any
Mortgage Loan which, at the option of the Mortgagor and in accordance with
the
terms of the related Mortgage Note, may have the related Mortgage Rate converted
from an adjustable rate to a fixed rate.
“Cooperative
Corporation”:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
“Cooperative
Loan”:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Loan Documents”:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original or a copy of the executed Security Agreement and the
assignment of the Security Agreement in blank; (iii) the original or a copy
of
the executed Proprietary Lease and the original assignment of the Proprietary
Lease endorsed in blank; (iv) the original, if available, or a copy of the
executed Recognition Agreement and, if available, the original assignment of
the
Recognition Agreement (or a blanket assignment of all Recognition Agreements)
endorsed in blank; (v) the executed UCC-1 financing statement with evidence
of
recording thereon, which has been filed in all places required to perfect the
security interest in the Cooperative Shares and the Proprietary Lease; and
(vi)
executed UCC Amendments (or copies thereof) or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
“Cooperative
Property”:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
“Cooperative
Shares”:
Shares
issued by a Cooperative Corporation.
17
“Cooperative
Unit”:
A
single family dwelling located in a Cooperative Property.
“Corporate
Trust Office”:
With
respect to the Trustee, the principal corporate trust office of the Trustee
at
which at any particular time its corporate trust business in connection with
this Agreement shall be administered, which office at the date of the execution
of this instrument is located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: MortgageIT Trust 2006-1, or at such other address
as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor and the Seller. With respect to the Securities
Administrator and the Certificate Registrar and (i) presentment of Certificates
for registration of transfer, exchange or final payment, ▇▇▇▇▇ Fargo Bank,
National Association, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust, MortgageIT Trust 2006-1, and (ii) for all
other purposes, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or for overnight
deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇), Attention:
Corporate Trust, MortgageIT Trust 2006-1.
“Corresponding
Class”:
With
respect to each class of Lower Tier Regular Interests or Middle Tier Regular
Interests, the Class or Classes of Certificates corresponding to such class
as
set forth in the Preliminary Statement.
“Custodian”:
Deutsche Bank National Trust Company, and its successors acting as custodian
of
the Mortgage Files.
“Cut-Off
Date”:
With
respect to any Mortgage Loan other than a Qualified Substitute Mortgage Loan,
the Close of Business in New York City on February 1, 2006. With respect to
any
Qualified Substitute Mortgage Loan, the date designated as such on the Mortgage
Loan Schedule (as amended).
“Cut-Off
Date Aggregate Principal Balance”:
The
aggregate of the Cut-Off Date Principal Balances of the Mortgage Loans in each
Loan Group.
“Cut-Off
Date Principal Balance”:
With
respect to any Mortgage Loan, the principal balance thereof remaining to be
paid, after application of all scheduled principal payments due on or before
the
Cut-Off Date whether or not received as of the Cut-Off Date (or as of the
applicable date of substitution with respect to a Qualified Substitute Mortgage
Loan).
“Deferred
Interest”:
With
respect to each Group 2 Mortgage Loan and each related Due Date, will be the
excess, if any, of the amount of interest accrued on such Group 2 Mortgage
Loan
from the preceding Due Date to such due date over the portion of the Monthly
Payment allocated to interest for such Due Date.
“Definitive
Certificates”:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 6.02(c) or (d)
hereof.
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by one or more Qualified Substitute
Mortgage Loans.
“Delinquent”:
Any
Mortgage Loan with respect to which the Monthly Payment due on a Due Date is
not
made.
18
“Depositor”:
Greenwich Capital Acceptance, Inc., a Delaware corporation, or any successor
in
interest.
“Depository”:
The
initial Depository shall be The Depository Trust Company, whose nominee is
Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“Determination
Date”:
For
any Distribution Date and each Mortgage Loan, the date each month, as set forth
in the related Servicing Agreement, on which the related Servicer determines
the
amount of all funds required to be remitted to the Master Servicer on the
Servicer Remittance Date with respect to the Mortgage Loans it is servicing.
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the Code, or any
other Person so designated by the Securities Administrator based upon an Opinion
of Counsel provided to the Securities Administrator by nationally recognized
counsel acceptable to the Securities Administrator that the holding of an
ownership interest in the Residual Certificate by such Person may cause the
Trust Fund or any Person having an ownership interest in any Class of
Certificates (other than such Person) to incur liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the transfer
of an ownership interest in the Residual Certificate to such
Person.
“Distribution
Account”:
The
trust account or accounts created and maintained by the Securities Administrator
pursuant to Section 4.02 hereof which shall be entitled “Distribution Account,
▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator for Deutsche Bank National
Trust Company, as Trustee, in trust for the registered Holders of MortgageIT
Mortgage Loan Trust, Mortgage Loan Pass-Through Certificates, Series 2006-1” and
which must be an Eligible Account.
“Distribution
Account Income”:
As to
any Distribution Date, any interest or other investment income earned on funds
deposited in the Distribution Account during the month of such Distribution
Date.
“Distribution
Date”:
The
25th day of the month, or, if such day is not a Business Day, the next Business
Day commencing in March 2006.
“Distribution
Date Statement”:
As
defined in Section 5.04(a) hereof.
“Due
Date”:
With
respect to each Mortgage Loan and any Distribution Date, the first day of the
calendar month in which such Distribution Date occurs on which the Monthly
Payment for such Mortgage Loan was due, exclusive of any days of
grace.
19
“Due
Period”:
With
respect to any Distribution Date, the period commencing on the second day of
the
month preceding the month in which such Distribution Date occurs and ending
on
the first day of the month in which such Distribution Date occurs.
“Eligible
Account”:
Any
of:
(i) a
trust
account or accounts maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short term rating
category of each Rating Agency at the time any amounts are held on deposit
therein;
(ii) a
trust
account or accounts the deposits in which are fully insured by the FDIC (to
the
limits established by it), the uninsured deposits in which account are otherwise
secured such that, as evidenced by an Opinion of Counsel delivered to the
Securities Administrator and the Trustee and to each Rating Agency, the Trustee
on behalf of Certificateholders will have a claim with respect to the funds
in
the account or a perfected first priority security interest against the
collateral (which shall be limited to Permitted Investments) securing those
funds that is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained;
(iii) a
trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity; or
(iv) an
account otherwise acceptable to each Rating Agency without reduction or
withdrawal of its then current ratings of the Certificates as evidenced by
a
letter from such Rating Agency to the Securities Administrator and the Trustee.
Eligible Accounts may bear interest.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Restricted
Certificates”:
(i)
the Class 2-A1B and Class 2-A1C Certificates, the Subordinate Certificates
and
the Residual Certificate, (ii) any
Class
2-A1A, Class 2-X, Class 2-X-B, Class 2-PO or Class 2-PO-B Certificates that
are
not rated at least “AA-” (or its equivalent) by at least one nationally rated
statistical rating organization (“Rating Agency”) upon acquisition, (iii) any
Class 1-A1, Class 1-A2 or Class 1-X Certificates that are not rated at least
“BBB-” by at least one Rating Agency upon acquisition or (iv) in
general,
any
Certificate that does not satisfy the applicable rating requirement under the
Underwriter’s Exemption.
“Escrow
Payments”:
The
amounts constituting ground rents, taxes, assessments, water rates, fire and
hazard insurance premiums and other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to any Mortgage Loan.
20
“Event
of Default”:
In
respect of the Master Servicer, one or more of the events (howsoever described)
set forth in Section 7.01 hereof as an event or events upon the occurrence
and
continuation of which the Master Servicer may be terminated.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
“Expense
Fee”:
With
respect to any Mortgage Loan, the related Servicing Fee.
“Expense
Fee Rate”:
With
respect to any Mortgage Loan, the per annum rate at which the Expense Fee
accrues for such Mortgage Loan as set forth in the Mortgage Loan
Schedule.
“▇▇▇▇▇▇
▇▇▇”:
The
Federal National Mortgage Association or any successor thereto.
“FDIC”:
The
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Prospectus Supplement”:
That
certain Prospectus Supplement, dated February 17, 2006, relating to the initial
sale of the Offered Certificates.
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to or
contemplated by Section 2.03, 3.25 and 10.01), a determination made by the
related Servicer that all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries which it expects to be finally recoverable in respect
thereof have been so recovered.
“Form
8-K Disclosure Information”:
As
defined in Section 3.19(c).
“▇▇▇▇▇▇▇
Mac”:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
“GMACM”:
GMAC
Mortgage Corporation, as subservicer of the Mortgage Loans, and its successors
and assigns.
“GMACM
Subservicing Agreement”:
The
Subservicing Agreement, dated as of February 1, 2006, between the Sponsor and
GMACM, as the same may be amended from time.
“Gross
Margin”:
With
respect to each Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note that is added to the applicable Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine the
Loan Rate for such Mortgage Loan.
“Group
1 Adjusted Lower-Tier WAC”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 4
multiplied by (ii) the weighted average
of
the interest rates on the
Lower-Tier REMIC Interests having an “LT1” in their designation, weighted on the
basis of their principal balances as of the first day of the related Accrual
Period and computed for this purpose by (a) first subjecting the interest rate
on each of the ▇▇▇-▇▇-▇▇, ▇▇▇-▇▇-▇▇, LT1-SG-A2, LT1-SC-A2, and LT1-Q Interests
to a cap of 0.00%, and (b) first subjecting the interest rate on each of the
LT1-A1, LT1-A2, LT1-AR, LT1-B1, LT1-B2, LT1-B3, LT1-B4, LT1-B5, and LT1-B6
Interests to a cap equal to the Pass-Through Rate for the Corresponding Class
of
Certificates (in the case of LIBOR Certificates, multiplied by the quotient
of
the actual number of days in the Accrual Period divided by 30) for such
Distribution Date.
21
“Group
1 Basis Risk Reserve Fund”:
A fund
created as part of the Trust Fund on behalf of the Class 1-X Certificates
pursuant to Section 5.07 of this Agreement but which is not an asset of any
of
the REMICs.
“Group
1 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
1 Net WAC”:
With
respect to any Distribution Date and the Group 1 Mortgage Loans, the weighted
average of the Group 1-A1 Net WAC and the Group 1-A2 Net WAC.
“Group
1-A1 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
of
the Subgroup 1-A1 Mortgage Loans as of the first day of the related Due Period
(or, in the case of the first Distribution Date, as of the Cut-Off Date),
weighted on the basis of their related Stated Principal Balances as of the
first
day of the related Due Period.
“Group
1-A1 Net WAC Cap”:
With
respect to any Distribution Date and the Class 1-A1 Certificates, the product
of
(i) the Group 1-A1 Net WAC multiplied by (ii) the quotient of 30 divided by
the
actual number of days in the accrual period.
“Group
1-A2 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
of
the Subgroup 1-A2 Mortgage Loans as of the first day of the related Due Period
(or, in the case of the first Distribution Date, as of the Cut-Off Date),
weighted on the basis of their related Stated Principal Balances as of the
first
day of the related Due Period.
“Group
1-A2 Net WAC Cap”:
With
respect to any Distribution Date and the Class 1-A2 Certificates, the product
of
(i) the Group 1-A2 Net WAC multiplied by (ii) the quotient of 30 divided by
the
actual number of days in the accrual period.
“Group
1 Senior Certificates”:
The
Class 1-A1, Class 1-A2, Class 1-X, Class A-R and Class 1-P
Certificates.
“Group
1 Senior Prepayment Percentage”:
With
respect to each Loan Subgroup in Loan Group 1 and any Distribution Date before
March 2013, 100%. Except as provided herein, the Group 1 Senior Prepayment
Percentage for each Loan Subgroup in Loan Group 1 for any Distribution Date
occurring on or after the seventh anniversary of the first Distribution Date
will be as follows: (i) from March 2013 through February 2014, the related
Senior Percentage plus 70% of the related Subordinate Percentage for such
Distribution Date; (ii) from March 2014 through February 2015, the related
Senior Percentage plus 60% of the related Subordinate Percentage for such
Distribution Date; (iii) from March 2015 through February 2016, the related
Senior Percentage plus 40% of the related Subordinate Percentage for such
Distribution Date; (iv) from March 2016 through
February 2017, the related Senior Percentage plus 20% of the related Subordinate
Percentage for such Distribution Date; and (v) from and after March 2017,
the related Senior Percentage for such Distribution Date; provided,
however, that
there shall be no reduction in the related Group 1 Senior Prepayment Percentage
for any Loan Subgroup in Loan Group 1 on a Distribution Date, unless the Step
Down Conditions are satisfied with respect to such Distribution Date; and
provided,
further,
that if
on any Distribution Date occurring on or after the Distribution Date in March
2013, the Senior Percentage for each Loan Subgroup in Loan Group 1 exceeds
the
initial Senior Percentage for such Loan Subgroup, the related Group 1 Senior
Prepayment Percentage for such Distribution Date will again equal
100%.
22
Notwithstanding
the above, (i) if on any Distribution Date prior to March 2009 the Two Times
Test is satisfied, the Group 1 Senior Prepayment Percentage for each Loan
Subgroup in Loan Group 1 will equal the related Senior Percentage for such
Distribution Date plus 50% of the related Subordinate Percentage for such
Distribution Date and (ii) if
on any
Distribution Date in or after March 2009 the Two Times Test is satisfied, the
Group 1 Senior Prepayment Percentage for each Loan Subgroup in Loan Group 1
will
equal the related Group 1 Senior Percentage for such Distribution
Date.
“Group
1 Subordinate Certificates”:
The
Class 1-B1, Class 1-B2, Class 1-B3, Class 1-B4, Class 1-B5 and Class 1-B6
Certificates.
“Group
1 Subordinate Principal Distribution Amount”:
With
respect to Loan Group 1 and any Distribution Date, an amount equal to the sum
of:
(1)
the
related Subordinate Percentage of all amounts described in clauses (a) through
(d) of the definition of “Principal Distribution Amount” for the Loan Subgroups
in Loan Group 1 and such Distribution Date;
(2) with
respect to each Mortgage Loan in a Loan Subgroup in Loan Group 1 that became
a
Liquidated Mortgage Loan during the related Prepayment Period, the amount of
the
Net Liquidation Proceeds allocated to principal received with respect thereto
remaining after application thereof pursuant to clause (2) of the definition
of
“Senior Principal Distribution Amount” for the Loan Subgroups in Loan Group 1
and such Distribution Date, up to the related Subordinate Percentage of the
Stated Principal Balance of such Mortgage Loan; and
(3) the
related Subordinated Prepayment Percentage of all amounts described in clause
(f) of the definition of “Principal Distribution Amount” for the Loan Subgroups
in Loan Group 1 and such Distribution Date.
“Group
1 Subordinate Net WAC”:
With
respect to any Distribution Date, the weighted average of the Group 1-A1 Net
WAC
and the Group 1-A2 Net WAC, weighted on the basis of the related Subordinate
Components for Loan Subgroup 1-A1 and Loan Subgroup 1-A2.
“Group
1 Subordinate Net WAC Cap”:
With
respect to any Distribution Date and the Class 1-B1 and Class 1-B2 Certificates,
the Group 1 Subordinate Net WAC for such Distribution Date.
“Group
1 Subordinate Percentage”:
As to
any Distribution Date, the percentage equivalent of a fraction, the numerator
of
which is the aggregate of the Class Principal Balances of the Classes of Group
1
Subordinate Certificates and the denominator of which is the Pool Balance of
the
Group 1 Mortgage Loans for such Distribution Date.
23
“Group
2-A Basis Risk Reserve Fund”:
A fund
created as part of the Trust Fund on behalf of the Class 2-X Certificates
pursuant to Section 5.07 of this Agreement but which is not an asset of any
of
the REMICs.
“Group
2-B Basis Risk Reserve Fund”:
A fund
created as part of the Trust Fund on behalf of the Class 2-X-B Certificates
pursuant to Section 5.07 of this Agreement but which is not an asset of any
of
the REMICs.
“Group
2 Adjusted Cap Rate”:
For
any Distribution Date and the Class 2-A1A, Class 2-A1B and Class 2-A1C
Certificates and the Group 2 Subordinate Certificates, an amount equal to the
product of (i) the Group 2 Net Adjusted WAC Cap for that Distribution Date,
multiplied by the quotient of 30 divided by the actual number of days in the
Accrual Period.
“Group
2A Adjusted Lower-Tier WAC”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 2
multiplied by (ii) the weighted average of the interest rates on the LT2-A1A,
LT2-A1B, LT2-A1C, LT2-AZ, LT2-AY, and LT2-AQ Interests, weighted on the basis
of
their principal balances as of the first day of the related Accrual Period
and
computed for this purpose by (a) first subjecting the interest rate on each
of
the LT2-AZ, LT2-AY, and LT2-AQ Interests to a cap of 0.00%, and (b) first
subjecting the interest rate on each of the LT2-A1A, LT2-A1B, and LT2-A1C
Interests to a cap equal to the lesser of (I) the Pass-Through Rate for the
Corresponding Class of Certificates multiplied by the quotient of the actual
number of days in the Accrual Period for the Corresponding Class of Certificates
divided by 30 and (II) the Group 2 Adjusted Net WAC for such Distribution
Date.
“Group
2A Adjusted Lower-Tier Pay Rate”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 2
multiplied by (ii) the weighted average of the interest rates on the LT2-A1A,
LT2-A1B, LT2-A1C, LT2-AZ, LT2-AY, and LT2-AQ Interests, weighted on the basis
of
their principal balances as of the first day of the related Accrual Period
and
computed for this purpose by (a) first subjecting the interest rate on each
of
the LT2-AZ, LT2-AY, and LT2-AQ Interests to a cap of 0.00%, and (b) first
subjecting the interest rate on each of the LT2-A1A, LT2-A1B, and LT2-A1C
Interests (I) to a cap equal to the Pass-Through Rate for the Corresponding
Class of Certificates multiplied by the quotient of the actual number of days
in
the Accrual Period for the Corresponding Class of Certificates divided by 30
and
(II) a floor equal to the Group 2 Adjusted Net WAC for such Distribution
Date.
“Group
2 Adjusted Net WAC”:
For any
Distribution Date (and the related Accrual Period), a per annum rate equal
to
the excess of (i) the Group 2 Net WAC over (ii) the product of (a) the Net
Deferred Interest for Loan Group 2 for such Distribution Date multiplied by
(b)
12, divided by the Pool Balance for Loan Group 2 for such Distribution
Date.
“Group
2 IO Adjusted Cap Rate”:
For
any Distribution Date and the Class 2-X and Class 2-X-B Certificates will equal
the pass-through rate for such Class, computed for this purpose by (i) reducing
the Group 2 Net WAC by a per annum rate equal to the quotient of (a) the product
of (1) the net deferred interest, if any on the Group 2 Mortgage Loans for
that
Distribution Date and (2) 12, divided by (b) the aggregate Principal Balance
of
the Group 2 Mortgage Loans as of the first day of the related Due Period, and
(ii) calculating the interest accrued on the Group 2 Certificates (other than
the Class 2-X and Class 2-X-B Certificates) by substituting the related
“Adjusted Cap Rate” for the related “Net WAC Cap” in the definition of
pass-through rate for each of the Group 2 Certificates.
24
“Group
2 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
2 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
pf
the Group 2 Mortgage Loans as of the first day of the related Due Period (or,
in
the case of the first Distribution Date, as of the Cut-Off Date), weighted
on
the basis of their related Stated Principal Balances as of the first day of
the
related Due Period.
“Group
2 Net WAC Cap”:
With
respect to any Distribution Date and the Class 2-A1A, Class 2-A1B, Class 2-A1C
Certificates and the Group 2 Subordinate Certificates, the product of (i) the
Group 2 Net WAC multiplied by (ii) the quotient of 30 divided by the actual
number of days in the accrual period.
“Group
2 Senior Certificates”:
The
Class 2-A1A, Class 2-A1B, Class 2-A1C, Class 2-X, Class 2-X-B, Class 2-PO,
Class
2-PO-B and Class 2-P Certificates.
“Group
2 Senior Prepayment Percentage”:
With
respect to Loan Group 2 and any Distribution Date before March 2016, 100%.
Except as provided herein, the Group 2 Senior Prepayment Percentage for any
Distribution Date occurring on or after the seventh anniversary of the first
Distribution Date will be as follows: (i) from March 2016 through February
2017, the related Senior Percentage plus 70% of the related Subordinate
Percentage for such Distribution Date; (ii) from March 2017 through
February 2018, the related Senior Percentage plus 60% of the related Subordinate
Percentage for such Distribution Date; (iii) from March 2018 through
February 2019, the related Senior Percentage plus 40% of the related Subordinate
Percentage for such Distribution Date; (iv) from March 2019 through
February 2020, the related Senior Percentage plus 20% of the related Subordinate
Percentage for such Distribution Date; and (v) from and after March 2020,
the related Senior Percentage for such Distribution Date; provided,
however, that
there shall be no reduction in the Group 2 Senior Prepayment Percentage on
a
Distribution Date, unless the Step Down Conditions are satisfied with respect
to
such Distribution Date; and provided,
further,
that if
on any Distribution Date occurring on or after the Distribution Date in March
2016, the Senior Percentage for Loan Group 2 exceeds the initial Senior
Percentage for Loan Group 2, the Group 2 Senior Prepayment Percentage for such
Distribution Date will again equal 100%.
Notwithstanding
the above, (i) if on any Distribution Date prior to March 2009 the Two Times
Test is satisfied, the Group 2 Senior Prepayment Percentage will equal the
related Senior Percentage for such Distribution Date plus 50% of the related
Subordinate Percentage for such Distribution Date and (ii) if
on any
Distribution Date in or after March 2009 the Two Times Test is satisfied, the
Group 2 Senior Prepayment Percentage will equal the related Senior Percentage
for such Distribution Date.
“Group
2 Subordinate Adjusted Lower-Tier WAC”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 2
multiplied by (ii) the weighted average of the interest rates on the LT2-B1,
LT2-B2, LT2-B3, LT2-B4, LT2-B5, LT2-B6, LT2-BZ, LT2-BY, and LT-BQ Interests,
weighted on the basis of their principal balances as of the first day of the
related Accrual Period and computed for this purpose by (a) first subjecting
the
interest rate on each of the LT2-BZ, LT2-BY, and LT-BQ Interests to a cap of
0.00%, and (b) first subjecting the interest rate on each of the LT2-B1, LT2-B2,
LT2-B3, LT2-B4, LT2-B5, and LT2-B6, Interests to a cap equal to the lesser
of
(I) the Pass-Through Rate for the Corresponding Class of Certificates multiplied
by the quotient of the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided by 30 and (II) the Group 2 Adjusted
Net WAC for such Distribution Date.
25
“Group
2 Subordinate Adjusted Lower-Tier Pay Rate”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 2
multiplied by (ii) the weighted average of the interest rates on the LT2-B1,
LT2-B2, LT2-B3, LT2-B4, LT2-B5, LT2-B6, LT2-BZ, LT2-BY, and LT-BQ Interests,
weighted on the basis of their principal balances as of the first day of the
related Accrual Period and computed for this purpose by (a) first subjecting
the
interest rate on each of the LT2-BZ, LT2-BY, and LT-BQ Interests to a cap of
0.00%, and (b) first subjecting the interest rate on each of the LT2-B1, LT2-B2,
LT2-B3, LT2-B4, LT2-B5, and LT2-B6 Interests (I) to a cap equal to the
Pass-Through Rate for the Corresponding Class of Certificates multiplied by
the
quotient of the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided by 30 and (II) a floor equal to
the
Group 2 Adjusted Net WAC for such Distribution Date.
“Group
2 Subordinate Certificates”:
The
Class 2-B1, Class 2-B2, Class 2-B3, Class 2-B4, Class 2-B5 and Class 2-B6
Certificates.
“Group
2 Subordinate Percentage”:
As to
any Distribution Date, the percentage equivalent of a fraction, the numerator
of
which is the aggregate of the Class Principal Balances of the Classes of Group
2
Subordinate Certificates and the denominator of which is the Pool Balance of
the
Group 2 Mortgage Loans for such Distribution Date.
“Group
2 Subordinate Principal Distribution Amount”:
With
respect to Loan Group 2 and any Distribution Date, an amount equal to the sum
of:
(1)
the
related Subordinate Percentage of all amounts described in clauses (a) through
(d) of the definition of “Principal Distribution Amount” for Loan Group 2 and
such Distribution Date;
(2) with
respect to each Mortgage Loan in Loan Group 2 that became a Liquidated Mortgage
Loan during the related Prepayment Period, the amount of the Net Liquidation
Proceeds allocated to principal received with respect thereto remaining after
application thereof pursuant to clause (2) of the definition of “Senior
Principal Distribution Amount” for Loan Group 2 and such Distribution Date, up
to the related Subordinate Percentage of the Stated Principal Balance of such
Mortgage Loan; and
(3)
the
related Subordinated Prepayment Percentage of all amounts described in clause
(f) of the definition of “Principal Distribution Amount” for Loan Group 2 and
such Distribution Date.
26
“Indemnified
Persons”:
The
Trustee (individually in its corporate capacity and in all capacities
hereunder), the Master Servicer, the Depositor and the Securities Administrator
(in all capacities hereunder) and their officers, directors, agents and
employees and, with respect to the Trustee, any separate co-trustee and its
officers, directors, agents and employees.
“Independent”:
When
used with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a Person
who
(A) is in fact independent of another specified Person and any affiliate of
such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person, (C) is
not
connected with such other Person or any affiliate of such other Person as an
officer, employee, promoter, underwriter, Securities Administrator, partner,
director or Person performing similar functions and (D) is not a member of
the
immediate family of a Person defined in clause (B) or (C) above.
“Index”:
With
respect to each Mortgage Loan and each Adjustment Date, the index specified
in
the related Mortgage Note.
“Initial
Certificate Principal Balance”:
With
respect to any Certificate (other than the Interest-Only Certificates), the
amount designated “Initial Certificate Principal Balance” on the face
thereof.
“Initial
Certificate Notional Balance”:
With
respect to the Class 1-X, Class 2-X and Class 2-X-B Certificates, the amount
designated “Initial Certificate Notional Balance” on the face
thereof.
“Initial
LIBOR Rate”:
4.570%.
“Initial
Loan Group 1 Balance”:
$494,105,297.26.
“Initial
Loan Group 2 Balance”:
$260,187,294.08.
“Initial
Loan Subgroup 1-A1 Balance”:
$191,381,522.29.
“Initial
Loan Subgroup 1-A2 Balance”:
$302,723,744.97.
“Insurance
Proceeds”:
With
respect to any Mortgage Loan, proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are
not to be applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the related Servicing
Agreement.
“Interest
Distributable Amount”:
With
respect to any Distribution Date and each Class of Certificates (other than
the
Class 1-P, Class 2-P, Class 2-PO and Class 2-PO-B Certificates), the sum of
(i) the Monthly Interest Distributable Amount for that Class and
(ii) the Unpaid Interest Shortfall Amount for that Class.
“Interest-Only
Certificate”:
Any of
the Class 1-X, Class 2-X or Class 2-X-B Certificates.
27
“Interest
Shortfall”:
With
respect to any Distribution Date and each Mortgage Loan that during the related
Prepayment Period was the subject of a Principal Prepayment or a reduction
of
its Monthly Payment under the Relief Act, constitutes an amount determined
as
follows:
(a) Principal
Prepayments in part received during the relevant Prepayment Period: the
difference between (i) one month’s interest at the applicable Net Loan Rate on
the amount of such prepayment and (ii) the amount of interest for the calendar
month of such prepayment (adjusted to the applicable Net Loan Rate) received
at
the time of such prepayment; and
(b) Principal
Prepayments in full received during the relevant Prepayment Period: the
difference between (i) one month’s interest at the applicable Net Loan Rate on
the Stated Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Loan Rate) received at the time
of
such prepayment; and
(c) any
Relief Act Reductions for such Distribution Date.
“Latest
Possible Maturity Date”:
As
determined as of the Cut-Off Date, the Distribution Date following the fifth
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-Off Date.
“Lender-Paid
Mortgage Insurance Loan”:
Each
Mortgage Loan identified as such in the Mortgage Loan Schedule.
“Lender-Paid
Mortgage Insurance Fee”:
As to
any Distribution Date and each Lender Paid Mortgage Insurance Mortgage Loan,
an
amount equal to the product of the Lender-Paid Mortgage Insurance Fee Rate
and
the outstanding Principal Balance of such Mortgage Loan as of the first day
of
the related Due Period.
“Lender-Paid
Mortgage Insurance Fee Rate”:
For
each Lender-Paid Mortgage Insurance Loan and any Distribution Date, the per
annum rate required to be paid in connection with the related lender-paid
mortgage insurance policy for such Mortgage Loan on such Distribution
Date.
“LIBOR”:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Securities Administrator
on
the basis of the “Interest Settlement Rate” set by the BBA for one-month United
States dollar deposits, as such rates appear on the Telerate Page 3750, as
of
11:00 a.m. (London time) on such LIBOR Determination Date.
(a) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Securities Administrator
will obtain such rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.”
If such rate is not published for such LIBOR Determination Date, LIBOR for
such
date will be the most recently published Interest Settlement Rate. In the event
that the BBA no longer sets an Interest Settlement Rate, the Securities
Administrator will designate an alternative index that has performed, or that
the Securities Administrator expects to perform, in a manner substantially
similar to the BBA’s Interest Settlement Rate. The Securities Administrator will
select a particular index as the alternative index only if it receives an
Opinion of Counsel, which opinion shall be an expense reimbursed from the
Distribution Account, that the selection of such index will not cause any REMIC
created hereunder to lose its classification as a REMIC for federal income
tax
purposes.
28
(b) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the Pass-Through Rate applicable to
the LIBOR Certificates for the relevant Accrual Period, in the absence of
manifest error, will be final and binding.
“LIBOR
Business Day”:
Any
day on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
“LIBOR
Certificates”:
The
Class 1-A1, Class 1-A2, Class 1-B1, Class 1-B2, Class 2-A1A, Class 2-A1B, Class
2-A1C Certificates and the Group 2 Subordinate Certificates.
“LIBOR
Determination Date”:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for the LIBOR Certificates.
“Liquidated
Mortgage Loan”:
As to
any Distribution Date, any Mortgage Loan in respect of which the related
Servicer or the Master Servicer has determined, in accordance with the servicing
procedures specified herein, as of the end of the related Prepayment Period,
that all Liquidation Proceeds that it expects to recover with respect to the
liquidation of such Mortgage Loan or disposition of the related REO Property
have been recovered.
“Liquidation
Event”:
With
respect to any Mortgage Loan, any of the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final Recovery Determination is made as to such
Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund by
reason of its being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the following events:
(i)
a Final Recovery Determination is made as to such REO Property; or (ii) such
REO
Property is removed from the Trust Fund by reason of its being sold or purchased
pursuant to Section 10.01 hereof or the applicable provisions of the related
Servicing Agreement.
“Liquidation
Expenses”:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Master Servicer or the related Servicers,
such expenses including (a) property protection expenses, (b) property sales
expenses, (c) foreclosure and sale costs, including court costs and reasonable
attorneys’ fees, and (d) similar expenses reasonably paid or incurred in
connection with liquidation.
“Liquidation
Proceeds”:
With
respect to any Mortgage Loan, the amount (other than amounts received in respect
of the rental of any REO Property prior to REO Disposition) received by the
related Servicer as proceeds from the liquidation of such Mortgage Loan, as
determined in accordance with the applicable provisions of the related Servicing
Agreement, other than Recoveries; provided
that
with respect to any Mortgage Loan or REO Property repurchased, substituted
or
sold pursuant to or as contemplated hereunder, or pursuant to the applicable
provisions of the related Servicing Agreement, “Liquidation Proceeds” shall also
include amounts realized in connection with such repurchase, substitution or
sale.
29
“Loan
Group”:
Either
of Loan Group 1 or Loan Group 2, as the context requires.
“Loan
Group Balance”:
As to
each Loan Group and any Distribution Date, the aggregate of the Stated Principal
Balances, as of the Close of Business on the first day of the month preceding
the month in which such Distribution Date occurs, of the Mortgage Loans in
such
Loan Group that were Outstanding Mortgage Loans on that day.
“Loan
Group 1”:
At any
time, the Group 1 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Group 2”:
At any
time, the Group 2 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Rate”:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note.
“Loan
Subgroup”:
Either
of Loan Subgroup 1-A1 or Loan Subgroup 1-A2, as the context
requires.
“Loan
Subgroup Balance”:
As to
each Loan Subgroup and any Distribution Date, the aggregate of the Stated
Principal Balances, as of the Close of Business on the first day of the related
Due Period, of the Mortgage Loans in such Loan Subgroup that were Outstanding
Mortgage Loans on that day.
“Loan
Subgroup 1-A1”:
At any
time, the Subgroup 1-A1 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Subgroup 1-A2”:
At any
time, the Subgroup 1-A2 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan-to-Collateral
Value Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination and the denominator of which
is
the Value of the related Mortgaged Property.
“Loan-to-Value
Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination and the denominator of which
is
the Value of the related Mortgaged Property.
“Lost
Note Affidavit”:
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
lost or destroyed and has not been replaced, an affidavit from the Seller
certifying that the original Mortgage Note has been lost, misplaced or destroyed
(together with a copy of the related Mortgage Note and indemnifying the Trust
Fund against any loss, cost or liability resulting from the failure to deliver
the original Mortgage Note) in the form of Exhibit H hereto.
30
“Lower-Tier
Regular Interest”:
As
described in the Preliminary Statement.
“Lower-Tier
REMIC”:
As
described in the Preliminary Statement.
“LT2-AY
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the LT2-AZ Interest immediately
preceding such Distribution Date multiplied by (II) the Group 2 Net WAC for
such
Distribution Date multiplied by (III) two, divided by (b) the Group 2 Adjusted
Net WAC for such Distribution Date, over (ii) the principal balance of the
LT2-AZ Interest immediately preceding such Distribution Date.
“LT2-AZ
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the LT2-AY Interest immediately preceding such
Distribution Date divided by (b) the difference between (I) 100% minus (II)
the
quotient of (A) the Group 2 Adjusted Net WAC for such Distribution Date divided
by (B) the product of (1) two multiplied by (2) the Group 2 Net WAC for such
Distribution Date, over (ii) the principal balance of the LT2-AY Interest
immediately preceding such Distribution Date.
LT2-BY
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the LT2-BZ Interest immediately
preceding such Distribution Date multiplied by (II) the Group 2 Net WAC for
such
Distribution Date multiplied by (III) two, divided by (b) the Group 2 Adjusted
Net WAC for such Distribution Date, over (ii) the principal balance of the
LT2-BZ Interest immediately preceding such Distribution Date.
“LT2-BZ
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the LT2-BY Interest immediately preceding such
Distribution Date divided by (b) the difference between (I) 100% minus (II)
the
quotient of (A) the Group 2 Adjusted Net WAC for such Distribution Date divided
by (B) the product of (1) two multiplied by (2) the Group 2 Net WAC for such
Distribution Date, over (ii) the principal balance of the LT2-BY Interest
immediately preceding such Distribution Date.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“Margin”:
On
each Distribution Date, (i) with respect to the Class 1-A1 Certificates, 0.230%
per annum, and on each Distribution Date after the Call Option Date, 0.0.460%
per annum, (ii) with respect to the Class 1-A2 Certificates, 0.200% per annum,
and on each Distribution Date after the Call Option Date, 0.400% per annum,
(iii) with respect to the Class 1-B1 Certificates, 0.420% per annum, and on
each
Distribution Date after the Call Option Date, 0.630% per annum, (iv) with
respect to the Class 1-B2 Certificates, 0.620% per annum, and on each
Distribution Date after the Call Option Date, 0.930% per annum, (v) with respect
to the Class 2-A1A Certificates, 0.210% per annum, and on each Distribution
Date
after the Call Option Date, 0.420% per annum, (vi) with respect to the Class
2-A1B Certificates, 0.280% per annum, and on each Distribution Date after the
Call Option Date, 0.560% per annum, (vii) with respect to the Class 2-A1C
Certificates, 0.310% per annum, and on each Distribution Date after the Call
Option Date, 0.620% per annum, (viii) with respect to the Class 2-B1
Certificates, 0.480% per annum, and on each Distribution Date after the Call
Option Date, 0.720% per annum, (ix) with respect to the Class 2-B2 Certificates,
0.880% per annum, and on each Distribution Date after the Call Option Date,
1.320% per annum, (x) with respect to the Class 2-B3 Certificates, 1.750% per
annum, and on each Distribution Date after the Call Option Date, 2.625% per
annum, (xi) with respect to the Class 2-B4 Certificates, 1.750% per annum,
and
on each Distribution Date after the Call Option Date, 2.625% per annum, (xii)
with respect to the Class 2-B5 Certificates, 1.750% per annum, and on each
Distribution Date after the Call Option Date, 2.625% per annum, and (xiii)
with
respect to the Class 2-B6 Certificates, 1.750% per annum, and on each
Distribution Date after the Call Option Date, 2.625% per annum.
31
“Master
Servicer”:
▇▇▇▇▇
Fargo Bank, N.A., or any successor Master Servicer appointed as herein
provided.
“Master
Servicing Fee”:
As to
any Distribution Date, the income and gain realized from any investment of
funds
in the Distribution Account pursuant to Section 4.02(c) hereof.
“Master
Servicing Guide”:
▇▇▇▇▇
Fargo Conduit and Norwest Conduit Servicing Guide, dated February 1997, as
amended July 2001.
“Maximum
Loan Rate”:
With
respect to each Mortgage Loan, the percentage set forth in the related Mortgage
Note as the maximum Loan Rate thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS
Mortgage Loan”:
Any
Mortgage Loan registered with MERS on the MERS System.
“MERS® System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“MIN”:
The
Mortgage Identification Number for any MERS Mortgage Loan.
“Modifiable
Mortgage Loan”:
Any
Mortgage Loan which, at the option of the Mortgagor and in accordance with
the
terms of the related Mortgage Note, may have the related Mortgage Rate modified
to any adjustable rate or hybrid product offered at the time by the related
originator.
“Modified
Mortgage Loan”:
Any
Modifiable Mortgage Loan as to which the related Mortgagor has exercised the
right to modify the Mortgage Rate.
“Modified
Mortgage Loan Schedule”:
With
respect to each Distribution Date, a schedule listing each Modifiable Mortgage
Loan in the form set forth in Schedule III hereto that has become a
Modified Mortgage Loan during the immediately preceding Due Period, and the
Purchase Price for each such Modified Mortgage Loan.
32
“MOM
Loan”:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
“Monthly
Interest Distributable Amount”:
With
respect to each Class of Certificates (other than the Class P Certificates
and
Class PO Certificates) and any Distribution Date, the amount of interest accrued
during the related Accrual Period at the related Pass-Through Rate on the Class
Principal Balance or Class Notional Balance, as applicable, of that Class
immediately prior to such Distribution Date.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal and/or
interest on such Mortgage Loan that is payable by the related Mortgagor from
time to time under the related Mortgage Note, determined, for the purposes
of
this Agreement: (a) after giving effect to any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act;
(b)
without giving effect to any extension granted or agreed to by the related
Servicer pursuant to the applicable provisions of the related Servicing
Agreement; and (c) on the assumption that all other amounts, if any, due under
such Mortgage Loan are paid when due.
“Moody’s”:
▇▇▇▇▇’▇ Investors Service, Inc. or any successor thereto.
“Mortgage”:
The
mortgage, deed of trust or other instrument creating a first lien on, or first
priority security interest in, a Mortgaged Property securing a Mortgage
Note.
“Mortgage
File”:
The
mortgage documents listed in Section 2.01 hereof pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”:
Each
mortgage loan (including Cooperative Loans) transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) hereof as from time to
time
held as a part of the Trust Fund, the Mortgage Loans so held being identified
in
the Mortgage Loan Schedule.
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of February 1, 2006, regarding the transfer of the Mortgage Loans by the Seller
to or at the direction of the Depositor.
“Mortgage
Loan Schedule”:
As of
any date, the list of Mortgage Loans included in the Trust Fund on such date,
attached hereto as Schedule I. The Mortgage Loan Schedule shall be prepared
by
the Seller and shall set forth the following information with respect to each
Mortgage Loan:
| (i) |
the
Mortgage Loan identifying number;
|
|
(ii)
|
the
state and five-digit ZIP code of the Mortgaged Property including
the;
|
|
(iii)
|
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
|
33
|
(iv)
|
a
code indicating whether the Residential Dwelling constituting the
Mortgaged Property is (a) a detached single family dwelling, (b)
a
dwelling in a planned unit development, (c) a condominium unit, (d)
a two-
to four-unit residential property, (e) a townhouse or (f) other type
of
Residential Dwelling;
|
|
(v)
|
if
the related Mortgage Note permits the borrower to make Monthly Payments
of
interest only for a specified period of time, (a) the original number
of
such specified Monthly Payments and (b) the remaining number of such
Monthly Payments as of the Cut-Off
Date;
|
|
(vi)
|
the
original months to maturity;
|
|
(vii)
|
the
stated remaining months to maturity from the Cut-Off Date based on
the
original amortization schedule;
|
|
(viii)
|
the
Loan-to-Value Ratio at origination;
|
|
(ix)
|
the
Loan-to-Collateral Value Ratio at
origination;
|
|
(x)
|
the
Loan Rate in effect immediately following the Cut-Off
Date;
|
|
(xi)
|
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
|
|
(xii)
|
the
stated maturity date;
|
|
(xiii)
|
the
Servicing Fee Rate;
|
|
(xiv)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
|
(xv)
|
the
original principal balance of the Mortgage
Loan;
|
|
(xvi)
|
the
Stated Principal Balance of the Mortgage Loan on the Cut-Off Date
and a
code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, rate/term refinancing, cash-out
refinancing);
|
|
(xvii)
|
the
Index and Gross Margin specified in related Mortgage
Note;
|
|
(xviii)
|
the
next Adjustment Date, if
applicable;
|
|
(xix)
|
the
Maximum Loan Rate, if applicable;
|
|
(xx)
|
the
Value of the Mortgaged Property;
|
|
(xxi)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(xxii)
|
the
product code;
|
34
|
(xxiii)
|
Expense
Fee Rate therefor; and
|
|
(xxiv)
|
the
respective Loan Group or Loan
Subgroup.
|
Information
set forth in clauses (ii) and (iii) above regarding each Mortgagor and the
related Mortgaged Property shall be confidential and the Trustee (or Master
Servicer) shall not disclose such information except to the extent disclosure
may be required by any law or regulatory or administrative authority;
provided,
however,
that
the Trustee may disclose on a confidential basis any such information to its
agents, attorneys and any auditors in connection with the performance of its
responsibilities hereunder.
The
Mortgage Loan Schedule, as in effect from time to time, shall also set forth
the
following information with respect to the Mortgage Loans in the aggregate and
by
Loan Group as of the Cut-Off Date: (1) the number of Mortgage Loans;
(2) the current Principal Balance of the Mortgage Loans; (3) the
weighted average Loan Rate of the Mortgage Loans; and (4) the weighted
average remaining months to maturity of the Mortgage Loans. The Mortgage Loan
Schedule shall be amended from time to time by the Seller in accordance with
the
provisions of this Agreement.
“Mortgage
Note”:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgaged
Property”:
Either
of (x) the fee simple or leasehold interest in real property, together with
improvements thereto including any exterior improvements to be completed within
120 days of disbursement of the related Mortgage Loan proceeds, or (y) in the
case of a Cooperative Loan, the related Cooperative Shares and Proprietary
Lease, securing the indebtedness of the Mortgagor under the related Mortgage
Loan.
“MortgageIT”:
MortgageIT, Inc., a New York corporation, and its successors and
assigns.
“MortgageIT
Servicing Agreement”:
The
Servicing Agreement, dated as of February 1, 2006, among MortgageIT, as seller
and servicer, the Master Servicer and the Trustee, as the same may be amended
from time.
“Mortgagor”:
The
obligor on a Mortgage Note.
“MTA”:
With
respect to each Accrual Period, a per annum rate determined on each MTA
Determination Date in the following manner by the Securities Administrator
on
the basis of the twelve-month moving average monthly yield on United States
Treasury Securities adjusted to a constant maturity of one year as published
by
the Federal Reserve Board in the Federal Reserve Statistical Release “Selected
Interest Rates (H.15)”, determined by averaging the monthly yields for the most
recently available twelve months.
“Net
Deferred Interest”:
With
respect to Loan Group 2 and any Distribution Date, the greater of (i) the
excess, if any, of the Deferred Interest for the related Due Date over the
aggregate amount of any principal prepayments in part or in full received during
the related Prepayment Period and (ii) zero.
35
“Net
Interest Shortfall”:
With
respect to any Distribution Date, the excess of the Interest Shortfall, if
any,
for such Distribution Date over the sum of (i) Interest Shortfalls paid by
the
Servicers under the related Servicing Agreements with respect to such
Distribution Date and (ii) Compensating Interest Payments made with respect
to
such Distribution Date.
“Net
Liquidation Proceeds”:
With
respect to any Liquidated Mortgage Loan or any other disposition of related
Mortgaged Property (including REO Property) the related Liquidation Proceeds
net
of Advances, related Servicing Advances, related Servicing Fees and any other
accrued and unpaid servicing fees received and retained in connection with
the
liquidation of such Mortgage Loan or Mortgaged Property.
“Net
Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable Loan
Rate for such Mortgage Loan minus the related Servicing Fee Rate.
“Net
Maximum Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable Maximum
Loan Rate for such Mortgage Loan minus the related Servicing Fee.
“Net
Maximum Rate Cap”:
With
respect to any Distribution Date and the Group 2 Subordinate Certificates,
the
Group 2 Net WAC Cap computed by assuming that each Group 2 Mortgage Loan accrued
interest at its Net Maximum Rate.
“Net
WAC”:
With
respect to any Distribution Date, the Group 1-A1 Net WAC, the Group 1-A2 Net
WAC
or the Group 2 Net WAC, as applicable.
“Net
WAC Cap”:
With
respect to any Distribution Date, the Group 1-A1 Net WAC Cap, the Group 1-A2
Net
WAC Cap or the Group 2 Net WAC Cap, as applicable.
“Nonrecoverable”:
The
determination by the Master Servicer or the related Servicer in respect of
a
delinquent Mortgage Loan that if it were to make an Advance in respect of
thereof, such amount would not be recoverable from any collections or other
recoveries (including Liquidation Proceeds) on such Mortgage Loan.
“Notional
Certificate”:
Any
Class 1-X, Class 2-X or Class 2-X-B Certificate.
“Offered
Certificates”:
The
Class 1-A1, Class 1-A2, Class 1-X, Class A-R, Class 1-B1, Class 1-B2, Class
1-B3, Class 2-A1A, Class 2-A1B, Class 2-A1C, Class 2-X, Class 2-X-B, Class
2-PO,
Class 2-PO-B, Class 2-B1, Class 2-B2 and Class 2-B3 Certificates.
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a vice president (however denominated), or by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Seller, the Master Servicer or the Depositor, as applicable.
“One-Month
LIBOR”:
The
average of interbank offered rates for one month U.S. dollar deposits in the
London market based on quotations of major banks.
36
“One-Month
LIBOR Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the One-Month LIBOR index.
“One-Month
MTA”:
The
twelve-month average yields on United States Treasury securities adjusted to
a
constant maturity of one year as published by the Federal Reserve Board in
Statistical Release H.15(519).
“One-Month
MTA Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the MTA index.
“One-Year
CMT”:
The
weekly average yield on United States Treasury securities adjusted to a constant
maturity of one year as published by the Federal Reserve Board in Statistical
Release H.15(519).
“One-Year
CMT Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the One-Year CMT Index.
“One-Year
LIBOR”:
The
average of interbank offered rates for one-year U.S. dollar deposits in the
London market based on quotations of major banks.
“One-Year
LIBOR Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the One-Year LIBOR index.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be a salaried counsel
for the Depositor or the Seller, acceptable to the Trustee or the Securities
Administrator, as applicable, except that any opinion of counsel relating to
(a)
the qualification of any REMIC created hereunder as a REMIC or (b) compliance
with the REMIC Provisions must be an opinion of Independent
counsel.
“Optional
Call Date”:
The
first Distribution Date on which the aggregate of the Stated Principal Balances
of the Mortgage Loans as of the end of the immediately preceding Due Period
is
equal to or less than 10% of the Cut-Off Date Aggregate Principal
Balance.
“Original
Applicable Credit Support Percentage”:
With
respect to each Class of Subordinate Certificates, the corresponding percentage
set forth below opposite its Class designation:
|
Class
1-B1
|
6.50%
|
Class
2-B1
|
8.50%
|
|
Class
1-B2
|
3.70%
|
Class
2-B2
|
5.00%
|
|
Class
1-B3
|
2.50%
|
Class
2-B3
|
3.40%
|
|
Class
1-B4
|
1.70%
|
Class
2-B4
|
2.40%
|
|
Class
1-B5
|
0.95%
|
Class
2-B5
|
1.40%
|
|
Class
1-B6
|
0.40%
|
Class
2-B6
|
0.60%
|
“Original
Certificate Notional Balance”:
With
respect to the Class 1-X Certificates, $494,105,297. With respect to the Class
2-X Certificates, $238,070,050. With respect to the Class 2-X-B Certificates,
$22,117,244.
37
“Original
Class Notional Balance”:
With
respect to the Interest-Only Certificates, the corresponding aggregate notional
amount set forth opposite the Class designation of such Class in the Preliminary
Statement.
“Original
Class Principal Balance”:
With
respect to each Class of Certificates other than the Notional Certificates,
the
corresponding aggregate amount set forth opposite the Class designation of
such
Class in the Preliminary Statement.
“OTS”:
The
Office of Thrift Supervision.
“Outstanding
Mortgage Loan”:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero,
that was not the subject of a prepayment in full prior to such Due Date and
that
did not become a Liquidated Mortgage Loan prior to such Due Date.
“Ownership
Interest”:
As to
any Certificate, any ownership or security interest in such Certificate,
including any interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner
or
as pledgee.
“Pass-Through
Rate”:
With
respect to each Class of Certificates and any Distribution Date, the rate set
forth below:
The
Pass-Through Rate for the Class 1-A1 Certificates with respect to any
Distribution Date on or before the Optional Call Date shall be equal to the
least of (i) One-Month LIBOR plus 0.230% per annum, (ii) the Group 1-A1 Net
WAC Cap for that Distribution Date and (iii) 10.500%. On all Distribution Dates
after the Optional Call Date, the Pass-Through Rate of the Class 1-A1
Certificates shall be equal to One-Month LIBOR plus 0.460% per
annum.
|
(i)
|
The
Pass-Through Rate for the Class 1-A2 Certificates with respect to
any
Distribution Date on or before the Optional Call Date shall be equal
to
the least of (i) One-Month LIBOR plus 0.200% per annum, (ii) the
Group 1-A2 Net WAC Cap for that Distribution Date and (iii) 10.500%.
On
all Distribution Dates after the Optional Call Date, the Pass-Through
Rate
of the Class 1-A2 Certificates shall be equal to One-Month LIBOR
plus
0.400% per annum.
|
|
(ii)
|
The
Pass-Through Rate for the Class 1-X Certificates with respect to
any
Distribution Date shall be calculated at an annual rate equal to
the
excess, if any, of (i) the weighted average of the Net Loan Rates
of the
Group 1 Mortgage Loans over (ii) a rate equal to the product of (a)
the
interest accrued on the Group 1 Certificates (other than the Class
1-X
Certificates) for the related Accrual Period, multiplied by (b) 12,
divided by the Class Notional Balance of the Class 1-X
Certificates.
|
|
(iii)
|
The
Pass-Through Rate for the Class A-R Certificates with respect to
any
Distribution Date shall be equal to the Subgroup 1-A1 Net WAC for
that
Distribution Date.
|
38
|
(iv)
|
The
Pass-Through Rate for the Class 1-B1 Certificates with respect to
any
Distribution Date shall be equal to the least of (i) One-Month LIBOR
plus
0.420% per annum, (ii) the Group 1 Subordinate Net WAC Cap for that
distribution date and (iii) 10.500%. On all Distribution Dates after
the
Optional Call Date, the Pass-Through Rate of the Class 1-B1 Certificates
shall be equal to One-Month LIBOR plus 0.630% per
annum.
|
|
(v)
|
The
Pass-Through Rate for the Class 1-B2 Certificates with respect to
any
Distribution Date shall be equal to the least of (i) One-Month LIBOR
plus
0.620% per annum, (ii) the Group 1 Subordinate Net WAC Cap for that
distribution date and (iii) 10.500%. On all Distribution Dates after
the
Optional Call Date, the Pass-Through Rate of the Class 1-B2 Certificates
shall be equal to One-Month LIBOR plus 0.930% per
annum.
|
|
(vi)
|
The
Pass-Through Rate for the Class 1-B3 Certificates with respect to
any
Distribution Date shall be equal to the Group 1 Subordinate Net
WAC.
|
|
(vii)
|
The
Pass-Through Rate for the Class 1-B4 Certificates with respect to
any
Distribution Date shall be equal to the Group 1 Subordinate Net
WAC.
|
|
(viii)
|
The
Pass-Through Rate for the Class 1-B5 Certificates with respect to
any
Distribution Date shall be equal to the Group 1 Subordinate Net
WAC.
|
|
(ix)
|
The
Pass-Through Rate for the Class 1-B6 Certificates with respect to
any
Distribution Date shall be equal to the Group 1 Subordinate Net
WAC.
|
|
(x)
|
The
Pass-Through Rate for the Class 2-A1A Certificates with respect to
any
Distribution Date on or before the Optional Call Date shall be equal
to
the least of (i) One-Month LIBOR plus 0.210% per annum, (ii) the
Group 2 Net WAC Cap for that Distribution Date and (iii) 10.500%.
On all
Distribution Dates after the Optional Call Date, the Pass-Through
Rate of
the Class 2-A1A Certificates shall be equal to One-Month LIBOR plus
0.420%
per annum.
|
|
(xi)
|
The
Pass-Through Rate for the Class 2-A1B Certificates with respect to
any
Distribution Date on or before the Optional Call Date shall be equal
to
the least of (i) One-Month LIBOR plus 0.280% per annum, (ii) the
Group 2 Net WAC Cap for that Distribution Date and (iii) 10.500%.
On all
Distribution Dates after the Optional Call Date, the Pass-Through
Rate of
the Class 2-A1B Certificates shall be equal to One-Month LIBOR plus
0.560%
per annum.
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|
(xii)
|
The
Pass-Through Rate for the Class 2-A1C Certificates with respect to
any
Distribution Date on or before the Optional Call Date shall be equal
to
the least of (i) One-Month LIBOR plus 0.310% per annum, (ii) the
Group 2 Net WAC Cap for that Distribution Date and (iii) 10.500%.
On all
Distribution Dates after the Optional Call Date, the Pass-Through
Rate of
the Class 2-A1C Certificates shall be equal to One-Month LIBOR plus
0.620%
per annum.
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39
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(xiii)
|
The
Pass-Through Rate for the Class 2-X Certificates with respect to
any
Distribution Date shall be calculated at an annual rate equal to
the
excess, if any, of (i) Group 2 Net WAC over (ii) a rate equal to
the
product of (a) the interest accrued on the Class 2-A1A, Class 2-A1B,
and
Class 2-A1C Certificates during the related Accrual Period, multiplied
by
(b) 12, divided by the Class Notional Balance of the Class 2-X
Certificates.
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(xiv)
|
The
Pass-Through Rate for the Class 2-X-B Certificates with respect to
any
Distribution Date shall equal the excess, if any, of (i) the Group
2 Net
WAC minus
(ii) a rate equal to the product of (a) interest accrued on the Group
2
Subordinate Certificates during the related Accrual Period and multiplied
by (b) 12, divided by the Class Notional Balance of the Class 2-X-B
Certificates.
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(xv)
|
The
Pass-Through Rate for the Class 2-B1 Certificates with respect to
any
Distribution Date shall be equal to the least of (i) One-Month LIBOR
plus
0.480% per annum, (ii) the Group 2 Net WAC Cap for that distribution
date
and (iii) the related Net Maximum Rate Cap for that Distribution
Date. On
all Distribution Dates after the Optional Call Date, the Pass-Through
Rate
of the Class 2-B1 Certificates shall be equal to One-Month LIBOR
plus
0.720% per annum.
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(xvi)
|
The
Pass-Through Rate for the Class 2-B2 Certificates with respect to
any
Distribution Date shall be equal to the least of (i) One-Month LIBOR
plus
0.880% per annum, (ii) the Group 2 Net WAC Cap for that distribution
date
and (iii) the related Net Maximum Rate Cap for that Distribution
Date. On
all Distribution Dates after the Optional Call Date, the Pass-Through
Rate
of the Class 2-B2 Certificates shall be equal to One-Month LIBOR
plus
1.320% per annum.
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(xvii)
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The
Pass-Through Rate for the Class 2-B3 Certificates with respect to
any
Distribution Date shall be equal to the least of (i) One-Month LIBOR
plus
1.750% per annum, (ii) the Group 2 Net WAC Cap for that distribution
date
and (iii) the related Net Maximum Rate Cap for that Distribution
Date. On
all Distribution Dates after the Optional Call Date, the Pass-Through
Rate
of the Class 2-B3 Certificates shall be equal to One-Month LIBOR
plus
2.625% per annum.
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|
(xviii)
|
The
Pass-Through Rate for the Class 2-B4 Certificates with respect to
any
Distribution Date shall be equal to the least of (i) One-Month LIBOR
plus
1.750% per annum, (ii) the Group 2 Net WAC Cap for that distribution
date
and (iii) the related Net Maximum Rate Cap for that Distribution
Date. On
all Distribution Dates after the Optional Call Date, the Pass-Through
Rate
of the Class 2-B4 Certificates shall be equal to One-Month LIBOR
plus
2.625% per annum.
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40
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(xix)
|
The
Pass-Through Rate for the Class 2-B5 Certificates with respect to
any
Distribution Date shall be equal to the least of (i) One-Month LIBOR
plus
1.750% per annum, (ii) the Group 2 Net WAC Cap for that distribution
date
and (iii) the related Net Maximum Rate Cap for that Distribution
Date. On
all Distribution Dates after the Optional Call Date, the Pass-Through
Rate
of the Class 2-B5 Certificates shall be equal to One-Month LIBOR
plus
2.625% per annum.
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|
(xx)
|
The
Pass-Through Rate for the Class 2-B6 Certificates with respect to
any
Distribution Date shall be equal to the least of (i) One-Month LIBOR
plus
1.750% per annum, (ii) the Group 2 Net WAC Cap for that distribution
date
and (iii) the related Net Maximum Rate Cap for that Distribution
Date. On
all Distribution Dates after the Optional Call Date, the Pass-Through
Rate
of the Class 2-B6 Certificates shall be equal to One-Month LIBOR
plus
2.625% per annum.
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“Paying
Agent”:
Any
paying agent appointed pursuant to Section 6.05 hereof.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Certificate other than a Residual Certificate, a fraction,
expressed as a percentage, the numerator of which is the Initial Certificate
Principal Balance or Initial Certificate Notional Balance, as applicable,
represented by such Certificate and the denominator of which is the Original
Class Principal Balance or Original Class Notional Balance, as applicable,
of
the related Class. With respect to the Residual Certificate, 100%.
“Permitted
Investments”:
Any
one or more of the following obligations or securities acquired at a purchase
price of not greater than par, regardless of whether issued or managed by the
Depositor, the Master Servicer, the Trustee or any of their respective
Affiliates or for which an Affiliate of the Trustee serves as an
advisor:
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(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;
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(ii)
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(A)
demand and time deposits in, certificates of deposit of, bankers’
acceptances issued by or federal funds sold by any depository institution
or trust company (including the Trustee or the Master Servicer or
their
agents acting in their respective commercial capacities) incorporated
under the laws of the United States of America or any state thereof
and
subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution
or
trust company or its ultimate parent has a short-term uninsured debt
rating in one of the two highest available rating categories of each
Rating Agency and (B) any other demand or time deposit or deposit
which is
fully insured by the FDIC;
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41
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(iii)
|
repurchase
obligations with respect to any security described in clause
(i) above and entered into with a depository institution or trust
company (acting as principal) rated A or higher by the Rating
Agencies;
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(iv)
|
securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the
District
of Columbia or any State thereof and that are rated by each Rating
Agency
in its highest long-term unsecured rating categories at the time
of such
investment or contractual commitment providing for such
investment;
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(v)
|
commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations) that is rated by each Rating Agency
in its
highest short-term unsecured debt rating available at the time of
such
investment;
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(vi)
|
any
mutual fund, money market fund, common trust fund or other pooled
investment vehicle, the assets of which are limited to instruments
that
otherwise would constitute Eligible Investments hereunder, including
any
such fund that is managed by the Securities Administrator or any
affiliate
of the Securities Administrator or for which the Securities Administrator
or any of its affiliates acts as an adviser as long as such fund
is rated
in at least the second highest rating category by ▇▇▇▇▇’▇ or S&P; and
the Securities Administrator may trade with itself or an affiliate
when
purchasing or selling Permitted Investments;
and
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|
(vii)
|
if
previously confirmed in writing to the Securities Administrator,
any other
demand, money market or time deposit, or any other obligation, security
or
investment, as may be acceptable to each Rating Agency in writing
as a
permitted investment of funds backing securities having ratings equivalent
to its highest initial rating of the Senior
Certificates;
|
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive (a)
only interest with respect to the obligations underlying such instrument or
(b)
both principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
“Permitted
Transferee”:
Any
Transferee of a Residual Certificate other than a Disqualified Organization
or a
non-U.S. Person.
“Person”:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
42
“Physical
Certificates”:
The
Residual Certificate and the Class P Certificates.
“Pool
Balance”:
As to
any Distribution Date, the aggregate of the Stated Principal Balances, as of
the
first day of the related Due Period, of the Mortgage Loans in all Loan Groups
that were Outstanding Mortgage Loans on that day.
“Prepayment
Penalty Amount”:
With
respect to any Mortgage Loan and each Distribution Date, all premiums or
charges, if any, paid by Mortgagors under the related Mortgage Notes as a result
of full or partial Principal Prepayments collected by the applicable Servicer
during the immediately preceding Prepayment Period, but only to the extent
required to be remitted to the Master Servicer on the applicable Servicer
Remittance Date under the terms of the related Servicing Agreement.
“Prepayment
Period”:
With
respect to any Distribution Date, the calendar month preceding the month in
which such Distribution Date occurs.
“Primary
Insurance Policy”:
Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
“Principal
Balance”:
As to
any Mortgage Loan, other than a Liquidated Mortgage Loan, and any day, the
related Cut-Off Date Principal Balance, minus
all
collections credited against the Principal Balance of such Mortgage Loan after
the Cut-Off Date. For purposes of this definition, a Liquidated Mortgage Loan
shall be deemed to have a Principal Balance equal to the Principal Balance
of
the related Mortgage Loan as of the final recovery of related Liquidation
Proceeds and a Principal Balance of zero thereafter. As to any REO Property
and
any day, the Principal Balance of the related Mortgage Loan immediately prior
to
such Mortgage Loan becoming REO Property.
“Principal
Distribution Amount”:
With
respect to Loan Subgroup 1-A1, Loan Subgroup 1-A2 or Loan Group 2 and any
Distribution Date, the sum of (a) each scheduled payment of principal
collected or advanced on the related Mortgage Loans by the related Servicer
or
the Master Servicer in respect of the related Due Period, (b) that portion
of the Purchase Price, representing principal of any repurchased or purchased
Mortgage Loan in that Loan Group or Loan Subgroup, deposited to the Distribution
Account during the related Prepayment Period, (c) the principal portion of
any related Substitution Adjustments with respect to that Loan Group or Loan
Subgroup deposited in the Distribution Account during the related Prepayment
Period, (d) the principal portion of all Insurance Proceeds received during
the related Prepayment Period with respect to Mortgage Loans in that Loan Group
or Loan Subgroup that are not yet Liquidated Mortgage Loans, (e) the
principal portion of all Net Liquidation Proceeds received during the related
Prepayment Period with respect to Liquidated Mortgage Loans in that Loan Group
or Loan Subgroup (other than Recoveries), (f) all Principal Prepayments in
part or in full on Mortgage Loans in that Loan Group or Loan Subgroup applied
by
the Servicers or the Master Servicer during the related Prepayment Period,
(g)
all Recoveries received during the related Prepayment Period and (h) on the
Distribution Date on which the Trust Fund is to be terminated pursuant to
Section 10.01 hereof, that portion of the Termination Price in respect of
principal for that Loan Group or Loan Subgroup.
43
“Principal
Prepayment”:
Any
payment of principal made by the Mortgagor on a Mortgage Loan that is received
in advance of its scheduled Due Date and that is not accompanied by an amount
of
interest representing the full amount of scheduled interest due on any Due
Date
in any month or months subsequent to the month of prepayment.
“Pro
Rata Share”:
As to
any Distribution Date and any Class of Group 1 Subordinate Certificates, the
portion of the Group 1 Subordinate Principal Distribution Amount allocable
to
such Class, equal to the product of the (a) Group 1 Subordinate Principal
Distribution Amount on such date and (b) a fraction, the numerator of which
is
the related Class Principal Balance of that Class and the denominator of which
is the aggregate of the Class Principal Balances of all the Classes of Group
1
Subordinate Certificates. As to any Distribution Date and any Class of Group
2
Subordinate Certificates, the portion of the Group 2 Subordinate Principal
Distribution Amount allocable to such Class, equal to the product of the (a)
Group 2 Subordinate Principal Distribution Amount on such date and (b) a
fraction, the numerator of which is the related Class Principal Balance of
that
Class and the denominator of which is the aggregate of the Class Principal
Balances of all the Classes of Group 2 Subordinate Certificates.
“Proprietary
Lease”:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
“Prospectus”:
The
Final Prospectus Supplement, together with the accompanying prospectus, dated
September 26, 2005, relating to the Offered Certificates.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to or
as
contemplated by Section 2.03, Section 3.25 or Section 10.01 hereof, and as
confirmed by an Officers’ Certificate from the Seller to the Trustee and the
Securities Administrator, an amount equal to the sum of (i) 100% of the
Principal Balance thereof as of the date of purchase (or such other price as
is
provided in Section 10.01), plus (ii) in the case of (x) a Mortgage
Loan, accrued interest on such Principal Balance at the applicable Loan Rate
from the Due Date as to which interest was last covered by a payment by the
Mortgagor through the end of the calendar month in which the purchase is to
be
effected, and (y) an REO Property, the sum of (1) accrued interest on
such Principal Balance at the applicable Loan Rate from the Due Date as to
which
interest was last covered by a payment by the Mortgagor plus (2) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the total of
all
net rental income, Insurance Proceeds and Liquidation Proceeds that as of the
date of purchase had been distributed as or to cover REO Imputed Interest,
plus
(iii) any unreimbursed Servicing Advances and any unpaid Expense Fees
allocable to such Mortgage Loan or REO Property, plus (iv) in the case of a
Mortgage Loan required to be purchased pursuant to Section 2.03 hereof, any
costs and damages incurred by the Trust Fund in connection with any violation
by
such Mortgage Loan of any predatory- or abusive-lending laws.
“Qualified
Insurer”:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, and approved as an insurer by the Master Servicer
so long as the claims paying ability of which is acceptable to each Rating
Agency for pass-through certificates having the same ratings on the Certificates
rated by each Rating Agency as of the Closing Date. Any replacement insurer
with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
44
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of, and not more than 5% less than, the Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a maximum loan rate not less than the
Maximum Loan Rate of the Deleted Mortgage Loan, (iii) have a gross margin
equal to or greater than the Gross Margin of the Deleted Mortgage Loan, (iv)
have the same Index as the Deleted Mortgage Loan, (v) have its next adjustment
date not more than two months after the next Adjustment Date of the Deleted
Mortgage Loan, (vi) have a remaining term to maturity not greater than (and
not
more than one year less than) that of the Deleted Mortgage Loan, (vii) be
current as of the date of substitution, (viii) have a Loan-to-Value Ratio
and a Loan-to-Collateral Value Ratio as of the date of substitution equal to
or
lower than the Loan-to-Value Ratio and the Loan-to-Collateral Value Ratio,
respectively, of the Deleted Mortgage Loan as of such date, (ix) have been
underwritten or re-underwritten in accordance with the same or substantially
similar underwriting criteria and guidelines as the Deleted Mortgage Loan,
(x)
is of the same or better credit quality as the Deleted Mortgage Loan and
(xi) conform to each representation and warranty set forth in Section 2.04
hereof applicable to the Deleted Mortgage Loan. In the event that one or more
mortgage loans are substituted for one or more Deleted Mortgage Loans, the
amounts described in clause (i) hereof shall be determined on the basis of
aggregate principal balances, the terms described in clause (vi) hereof
shall be determined on the basis of weighted average remaining term to maturity,
the Loan-to-Value Ratio and Loan-to-Collateral Value Ratio described in clause
(viii) hereof shall be satisfied as to each such mortgage loan and, except
to the extent otherwise provided in this sentence, the representations and
warranties described in clause (x) hereof must be satisfied as to each
Qualified Substitute Mortgage Loan or in the aggregate, as the case may
be.
“Rating
Agency”:
Each
of S&P and ▇▇▇▇▇’▇ and any respective successors thereto. If ▇▇▇▇▇’▇,
S&P or their respective successors shall no longer be in existence, “Rating
Agency” shall include such nationally recognized statistical rating agency or
agencies, or other comparable Person or Persons, as shall have been designated
by the Depositor, notice of which designation shall be given to the Trustee
and
the Master Servicer.
“Realized
Loss”:
With
respect to any Liquidated Mortgage Loan, the amount of loss realized equal
to
the portion of the Principal Balance remaining unpaid after application of
all
Net Liquidation Proceeds in respect of such Liquidated Mortgage
Loan.
“Recognition
Agreement”:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
45
“Record
Date”:
With
respect to each Distribution Date and the LIBOR Certificates, the Business
Day
preceding the applicable Distribution Date so long as such Certificates remain
Book-Entry Certificates and otherwise the Record Date shall be same as the
other
Classes of Certificates. For each other Class of Certificates, the last Business
Day of the calendar month preceding the month in which such Distribution Date
occurs.
“Recovery”:
With
respect to any Distribution Date and a Mortgage Loan that became a Liquidated
Mortgage Loan in a month preceding the related Prepayment Period to such
Distribution Date and with respect to which the related Realized Loss was
allocated to one or more Classes of Certificates, an amount received in respect
of such Liquidated Mortgage Loan during the related Prepayment Period, net
of
any reimbursable expenses.
“Refinancing
Mortgage Loan”:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
“Regular
Certificate”:
Any
Certificate other than the Class 1-P, Class 2-P and Class A-R
Certificates.
“Regulation
AB”:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarifications and interpretations as have been provided by the Commission
in the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Relevant
Servicing Criteria”:
The
Servicing Criteria applicable to each party, as set forth on Exhibit R attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Trustee, in its capacity as
Custodian or each Servicer, the term “Relevant Servicing Criteria” may refer to
a portion of the Relevant Servicing Criteria applicable to such
parties.
“Relief
Act”:
The
Servicemembers Civil Relief Act or similar state or local law.
“Relief
Act Reductions”:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended Due Period as a result of the application of the Relief Act,
the
amount, if any, by which (i) interest collectible on that Mortgage Loan during
such Due Period is less than (ii) one month’s interest on the Stated Principal
Balance of such Mortgage Loan at the Loan Rate for such Mortgage Loan before
giving effect to the application of the Relief Act.
“REMIC”:
A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
“REMIC
Opinion”:
An
Independent Opinion of Counsel, to the effect that the proposed action described
therein would not cause an Adverse REMIC Event.
46
“REMIC
Provisions”:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at Section 860A through 860G of Subchapter
M of
Chapter 1 of the Code, and related provisions, and regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to
time.
“Remittance
Report”:
The
Master Servicer’s Remittance Report to the Securities Administrator providing
information with respect to each Mortgage Loan which is provided no later than
the second Business Day following each Determination Date and which shall
contain such information as may be agreed upon by the Master Servicer and the
Securities Administrator and which shall be sufficient to enable the Securities
Administrator to prepare the related Distribution Date Statement.
“Rents
from Real Property”:
With
respect to any REO Property, gross income of the character described in Section
856(d) of the Code.
“REO
Account”:
The
account or accounts maintained by a Servicer in respect of an REO Property
pursuant to the related Servicing Agreement.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of the Trust
Fund.
“REO
Imputed Interest”:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of the Trust Fund, one month’s interest at the applicable Net Loan
Rate on the Principal Balance of such REO Property (or, in the case of the
first
such calendar month, of the related Mortgage Loan if appropriate) as of the
Close of Business on the Due Date in such calendar month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any, of
(a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 hereof that is allocable to such REO Property) or
otherwise, net of any portion of such amounts (i) payable pursuant to the
applicable provisions of the related Servicing Agreement in respect of the
proper operation, management and maintenance of such REO Property or (ii)
payable or reimbursable to the applicable Servicer pursuant to the applicable
provisions of the related Servicing Agreement for unpaid Master Servicing Fees
and Servicing Fees in respect of the related Mortgage Loan and unreimbursed
Servicing Advances and Advances in respect of such REO Property or the related
Mortgage Loan, over (b) the REO Imputed Interest in respect of such REO
Property for such calendar month.
“REO
Property”:
A
Mortgaged Property acquired by the applicable Servicer on behalf of the Trust
Fund through foreclosure or deed-in-lieu of foreclosure in accordance with
the
applicable provisions of the related Servicing Agreement.
“Reportable
Event”:
As
defined in Section 3.19(c).
47
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit F attached
hereto.
“Residential
Dwelling”:
Any
one of the following: (i) 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 manufactured home, (v) a cooperative unit or
(vi)
a detached one-family dwelling in a planned unit development, none of which
is a
mobile home.
“Residual
Certificate”:
The
Class A-R Certificate.
“Responsible
Officer”:
When
used with respect to the Trustee, any director, any vice president, any
assistant vice president, any associate assigned to the Corporate Trust Office
(or similar group) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and, with respect to a particular matter, to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
“Restricted
Classes”:
As
defined in Section 5.01(e).
“Restricted
Global Security”:
As
defined in Section 6.01.
“S&P”:
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. or any successor thereto.
“Sarbanes
Oxley Act”:
The
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Master Servicer that complies
with
(i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended from time to time, and (ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
is
amended, (b) the Rules referred to in clause (ii) are modified or superseded
by
any subsequent statement, rule or regulation of the Commission or any statement
of a division thereof, or (c) any future releases, rules and regulations are
published by the Securities and Exchange Commission from time to time pursuant
to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, which in any such case affects the form
or
substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous than the form of the required certification as of the
Closing Date, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification shall be as agreed to by the
Master Servicer, the Depositor and the Seller following a negotiation in good
faith to determine how to comply with any such new requirements.
“Securities
Act”:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Securities
Administrator”:
▇▇▇▇▇
Fargo Bank, N.A., or its successor in interest, or any successor securities
administrator appointed as herein provided.
48
“Security
Agreement”:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
“Seller”:
MortgageIT, in its capacity as seller under this Agreement.
“Senior
Certificate”:
Any
one of the Class 1-A1, Class 1-A2, Class 1-X, Class A-R, Class 2-A1A, Class
2-A1B, Class 2-A1C, Class 2-X, Class 2-X-B, Class 2-PO, Class 2-PO-B, Class
1-P
and Class 2-P Certificates.
“Senior
Certificate Group”:
Any of
(a) the Class 1-A1, Class 1-A2, Class 1-X and Class A-R Certificates with
respect to Loan Group 1, (b) the Class 1-A1 Certificates with respect to Loan
Subgroup 1-A1, (c) the Class 1-A2 Certificates with respect to Loan Subgroup
1-A2 and (d) the Class 2-A1A, Class 2-A1B, Class 2-A1C, Class 2-X, Class 2-X-B,
Class 2-PO and Class 2-PO-B Certificates with respect to Loan Group
2.
“Senior
Certificateholder”:
Any
Holder of a Senior Certificate.
“Senior
Credit Support Depletion Date”:
The
date on which the Class Principal Balance of each Class of Group 1 or Group
2
Subordinate Certificates has been reduced to zero.
“Senior
Percentage”:
With
respect to each Loan Group or Loan Subgroup and any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate
of
the Class Principal Balances of the Class or Classes of Senior Certificates
relating to that Loan Group or Loan Subgroup immediately prior to such
Distribution Date and the denominator of which is the Loan Group or Loan
Subgroup Balance in the related Loan Group or Loan Subgroup for such
Distribution Date provided,
however,
that on
any Distribution Date after a Senior Termination Date has occurred with respect
to a Loan Group or Loan Subgroup, the Senior Percentage for that Loan Group
or
Loan Subgroup will be equal to 0%.
“Senior
Prepayment Percentage”:
The
Group 1 Senior Prepayment Percentage or the Group 2 Senior Prepayment
Percentage, as applicable.
“Senior
Principal Distribution Amount”:
With
respect to Loan Group 1 and each Loan Subgroup thereof and any Distribution
Date, the sum of:
(1) the
related Senior Percentage of all amounts described in clauses (a) through (d)
of
the definition of “Principal Distribution Amount” for such Distribution
Date;
(2) with
respect to each Mortgage Loan in that Loan Subgroup which became a Liquidated
Mortgage Loan during the related Prepayment Period, the lesser of
|
(x)
|
the
related Senior Percentage of the Stated Principal Balance of that
Mortgage
Loan; and
|
49
|
(y)
|
the
Group 1 Senior Prepayment Percentage of the amount of the Net Liquidation
Proceeds allocable to principal received with respect to that Mortgage
Loan; and
|
(3) the
Group
1 Senior Prepayment Percentage of the amounts described in clause (f) of the
definition of “Principal Distribution Amount.”
With
respect to Loan Group 2 and any Distribution Date, the sum of:
(1)
the
related Senior Percentage of all amounts described in clauses (a) through (d)
of
the definition of “Principal Distribution Amount” for such Distribution
Date;
(2)
with
respect to each Mortgage Loan in Loan Group 2 which became a Liquidated Mortgage
Loan during the related Prepayment Period, the lesser of
|
(x)
|
the
related Senior Percentage of the Stated Principal Balance of that
Mortgage
Loan; and
|
|
(y)
|
the
Group 2 Senior Prepayment Percentage of the amount of the Net Liquidation
Proceeds allocable to principal received with respect to that Mortgage
Loan; and
|
(3)
the
Group
2 Senior Prepayment Percentage of the amounts described in clause (f) of the
definition of “Principal Distribution Amount.”.
“Senior
Termination Date”:
For
each Loan Group or Loan Subgroup, the Distribution Date on which the aggregate
of the Class Principal Balances of the related Senior Certificates is reduced
to
zero.
“Servicer”:
Any of
(i) MortgageIT, in its capacity as servicer of the Mortgage Loans, (ii) GMACM,
as subservicer of the Mortgage Loans or (iii) any successor servicer or
subservicer.
“Servicer
Remittance Date”:
With
respect to each Mortgage Loan, the 18th
day of
each month, or the next Business Day if such 18th
day is
not a Business Day or if provided in the related servicing agreement, the
preceding Business Day if such 18th
day is
not a Business Day.
“Servicing”:
In
accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust by an entity that meets the
definition of “servicer” set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in Item 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
“Servicing
Account”:
Any
account established and maintained for the benefit of the Master Servicer or
the
Trust Fund by a Servicer or with respect to the related Mortgage Loans and
any
REO Property, pursuant to the terms of the respective Servicing
Agreement.
50
“Servicing
Advances”:
With
respect to any Servicer or the Master Servicer (including the Trustee in its
capacity as successor Master Servicer), all customary, reasonable and necessary
“out of pocket” costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by any Servicer or the Master Servicer in the performance
of
its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of the Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures, (iii)
the
management and liquidation of the REO Property and (iv) compliance with the
obligations under Article III hereof or the related Servicing Agreements, as
applicable.
“Servicing
Agreement”:
Each of
(i) the MortgageIT Servicing Agreement and (ii) the GMACM Subservicing
Agreement, and any other servicing agreement or subservicing agreement entered
into between a successor servicer or subservicer, as applicable, and the Seller
or the Trustee on behalf of the Trust Fund pursuant to the terms
hereof.
“Servicing
Criteria”:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
“Servicing
Fee”:
With
respect to each Mortgage Loan and for any calendar month, the fee payable to
such Servicer determined pursuant to the related Servicing
Agreement.
“Servicing
Fee Rate”:
With
respect to each Mortgage Loan, the per annum servicing fee rate set forth on
the
Mortgage Loan Schedule.
“Servicing
Function Participant”:
Any
1122 Subservicer, 1122 Subcontractor or any other Person, other than each
Servicer, the Master Servicer, the Trustee, the Custodian and the Securities
Administrator, respectively.
“Servicing
Officer”: Any
officer of a Master Servicer or Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Master
Servicer, Servicer or Subservicer, as applicable, to the Trustee, the Custodian
and the Depositor on the Closing Date, as such list may from time to time be
amended.
“Significant
Modification”:
As
defined in Section 3.25.
“Significant
Modification Loan”:
As
defined in Section 3.25.
“Six-Month
LIBOR”:
The
average of interbank offered rates for six-month U.S. dollar deposits in the
London market based on quotations of major banks.
“Six-Month
LIBOR Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the Six-Month LIBOR index.
“Sponsor”:
MortgageIT, in its capacity as sponsor under this Agreement.
“Startup
Day”:
As
defined in Section 9.01(b) hereof.
51
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of the Distribution Date in March 2006,
the
Cut-Off Date Principal Balance of such Mortgage Loan, (b) thereafter as of
any date of determination up to and including the Distribution Date on which
the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the outstanding principal balance of such Mortgage Loan
as
of the Cut-Off Date, as shown in the Mortgage Loan Schedule, minus,
in the
case of each Mortgage Loan, the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-Off Date, whether or
not
received, (ii) all Principal Prepayments received after the Cut-Off Date,
to the extent distributed pursuant to Section 5.01 before such date of
determination and (iii) all Liquidation Proceeds and Insurance Proceeds
applied by the applicable Servicer as recoveries of principal in accordance
with
the applicable provisions of the related Servicing Agreement, to the extent
distributed pursuant to Section 5.01 before such date of determination; and
(c) as of any date of determination subsequent to the Distribution Date on
which the proceeds, if any, of a Liquidation Event with respect to such Mortgage
Loan would be distributed, zero. With respect to any REO Property: (x) as
of any date of determination up to and including the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such REO Property
would be distributed, an amount (not less than zero) equal to the Stated
Principal Balance of the related Mortgage Loan as of the date on which such
REO
Property was acquired on behalf of the Trust Fund, minus the aggregate amount
of
REO Principal Amortization in respect of such REO Property for all previously
ended calendar months, to the extent distributed pursuant to Section
5.01 before such date of determination; and (y) as of any date of
determination subsequent to the Distribution Date on which the proceeds, if
any,
of a Liquidation Event with respect to such REO Property would be distributed,
zero.
“Step
Down Conditions”:
As of
any Distribution Date on which any decrease in any Senior Prepayment Percentage
may apply, (i) the outstanding Principal Balance of all Mortgage Loans 60 days
or more Delinquent (including Mortgage Loans in REO and foreclosure), averaged
over the preceding six month period, as a percentage of the aggregate of the
Class Principal Balances of the Group 1 or Group 2 Subordinate Certificates,
as
applicable, on such Distribution Date, does not equal or exceed 50% and
(ii) cumulative Realized Losses with respect to all of the Mortgage Loans
do not exceed:
|
(a)
|
for
any Distribution Date on or after the tenth anniversary until the
eleventh
anniversary of the first Distribution Date, 30% of the aggregate
Certificate Principal Balance of the Group 1 or Group 2 Subordinate
Certificates, respectively, as of the Closing
Date,
|
|
(b)
|
for
any Distribution Date on or after the eleventh anniversary until
the
twelfth anniversary of the first Distribution Date, 35% of the aggregate
Certificate Principal Balance of the Group 1 or Group 2 Subordinate
Certificates, respectively, as of the Closing
Date,
|
|
(c)
|
for
any Distribution Date on or after the twelfth anniversary until the
thirteenth anniversary of the first Distribution Date, 40% of the
aggregate Certificate Principal Balance of the Group 1 or Group 2
Subordinate Certificates, respectively, as of the Closing
Date,
|
52
|
(d)
|
for
any Distribution Date on or after the thirteenth anniversary until
the
fourteenth anniversary of the first Distribution Date, 45% of the
aggregate Certificate Principal Balance of the Group 1 or Group 2
Subordinate Certificates, respectively, as of the Closing Date,
and
|
|
(e)
|
for
any Distribution Date on or after the fourteenth anniversary of the
first
Distribution Date, 50% of the aggregate Certificate Principal Balance
of
the Subordinate Certificates as of the Closing
Date.
|
“Strike
Rate”:
With
respect to any Distribution Date and the Yield Maintenance Agreement, the strike
rate listed on Schedule III hereto.
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Subservicer of any Servicer),
the Master Servicer, the Trustee or the Securities Administrator.
“Subgroup
1-A1 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Subgroup
1-A2 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Subordinate
Certificate”:
Any
one of the Class 1-B1, Class 1-B2, Class 1-B3, Class 1-B4, Class 1-B5, Class
1-B6, Class 2-B1, Class 2-B2, Class 2-B3, Class 2-B4, Class 2-B5 or Class 2-B6
Certificates.
“Subordinate
Component”:
With
respect to each of Loan Subgroup 1-A1 and Loan Subgroup 1-A2 and any
Distribution Date, the excess of the related Loan Subgroup Balance for such
Distribution Date over the aggregate Class Principal Balance of the related
Senior Certificates immediately preceding such Distribution Date.
“Subordinate
Percentage”:
With
respect to Loan Group 2, or in the case of Loan Group 1, each Loan Subgroup,
and
any Distribution Date, the difference between 100% and the related Senior
Percentage for such Loan Group or Loan Subgroup, as applicable, and such
Distribution Date; provided,
however,
that
with respect to Loan Group 1, on any Distribution Date occurring after a Senior
Termination Date has occurred with respect to one Loan Subgroup, the Subordinate
Percentage will represent the entire interest of the Group 1 Subordinate
Certificates in the Mortgage Loans and will equal the difference between 100%
and the related Senior Percentage for such Distribution Date.
“Subordinate
Prepayment Percentage”:
With
respect to Loan Group 2, or in the case of Loan Group 1, each Loan Subgroup,
and
any Distribution Date, the difference between 100% and the related Senior
Prepayment Percentage for such Distribution Date.
“Subservicer”:
GMACM,
as subservicer of the Mortgage Loans or any successor thereto.
53
“Substitution
Adjustment”:
As
defined in Section 2.03(d) hereof.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of the REMIC Taxable
Income or Net Loss Allocation, or any successor forms, to be filed on behalf
of
each of the REMICs created hereunder under the REMIC Provisions, together with
any and all other information reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions
of
federal, state or local tax laws.
“Telerate
Page 3750”:
The
display currently so designated as “Page 3750” on the Bridge Telerate Service
(or such other page selected by the Master Servicer as may replace Page 3750
on
that service for the purpose of displaying daily comparable rates on
prices).
“Termination
Price”:
As
defined in Section 10.01(a) hereof.
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
“Transfer
Affidavit”:
As
defined in Section 6.02(e)(ii) hereof.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Trust
Fund”:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, such Trust Fund consisting of: (i) such Mortgage Loans as from
time to time are subject to this Agreement, together with the Mortgage Files
relating thereto, and together with all collections thereon and proceeds
thereof, (ii) any REO Property, together with all collections thereon and
proceeds thereof, (iii) the Trustee’s rights with respect to the Mortgage Loans
under all insurance policies required to be maintained pursuant to this
Agreement and any proceeds thereof, (iv) the Depositor’s rights under the
Mortgage Loan Purchase Agreement (including any security interest created
thereby); (v) the Distribution Account (subject to the last sentence of this
definition), any REO Account and such assets that are deposited therein from
time to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto, (vi) all right, title and
interest of the Seller in and to each of the Servicing Agreements, (vii) the
Basis Risk Reserve Funds and (x) the Yield Maintenance Account. Notwithstanding
the foregoing, however, the Trust Fund specifically excludes (1) all payments
and other collections of interest and principal due on the Mortgage Loans on
or
before the Cut-Off Date and principal received before the Cut-Off Date (except
any principal collected as part of a payment due after the Cut-Off Date) and
(2)
all income and gain realized from Permitted Investments of funds on deposit
in
the Distribution Account.
“Trustee”:
Deutsche Bank National Trust Company, not in its individual capacity but solely
as trustee, a national banking association, its successors or assigns, or any
successor trustee appointed as herein provided.
54
“Trustee
Fee”:
The
annual on-going fee payable by the Master Servicer on behalf of the Trust Fund
to the Trustee from the Master Servicer Fee and pursuant to the terms of the
separate fee letter agreement between the Trustee and the Master Servicer
relating to the MortgageIT Trust 2006-1.
“Two
Times Test”:
As to
any Distribution Date and Loan Group 1, (i) the Aggregate Subordinate Percentage
for Loan Group 1 is at least two times the Aggregate Subordinate Percentage
for
Loan Group 1 as of the Closing Date; (ii) the aggregate of the Principal
Balances of all Mortgage Loans Delinquent 60 days or more (including Mortgage
Loans in REO and foreclosure), averaged over the preceding six-month period,
as
a percentage of the aggregate of the Class Principal Balances of the Group
1
Subordinate Certificates, does not equal or exceed 50%; and (iii) on or after
the Distribution Date in March 2009, cumulative Realized Losses do not exceed
30% of the Class Principal Balances of the Group 1 Subordinate Certificates
as
of the Closing Date, or prior to the Distribution Date in March 2009, cumulative
Realized Losses do not exceed 20% of the Class Principal Balances of the Group
1
Subordinate Certificates as of the Closing Date.
As
to any
Distribution Date and Loan Group 2, (i) the Aggregate Subordinate Percentage
for
Loan Group 1 is at least two times the Aggregate Subordinate Percentage for
Loan
Group 2 as of the Closing Date; (ii) the aggregate of the Principal Balances
of
all Mortgage Loans Delinquent 60 days or more (including Mortgage Loans in
REO
and foreclosure), averaged over the preceding six-month period, as a percentage
of the aggregate of the Class Principal Balances of the Group 2 Subordinate
Certificates, does not equal or exceed 50%; and (iii) on or after the
Distribution Date in March 2009, cumulative Realized Losses do not exceed 30%
of
the Class Principal Balances of the Group 2 Subordinate Certificates as of
the
Closing Date, or prior to the Distribution Date in March 2009, cumulative
Realized Losses do not exceed 20% of the Class Principal Balances of the Group
2
Subordinate Certificates as of the Closing Date.
“Undercollateralized
Subgroup”:
With
respect to any Distribution Date, any Class of Senior Certificates related
to
any Loan Subgroup of Loan Group 1 as to which the aggregate Class Principal
Balance thereof, after giving effect to distributions pursuant to Section
5.01(a) on such date, is greater than the Loan Subgroup Balance of the related
Loan Subgroup for such Distribution Date.
“Underwriter’s
Exemption”:
Prohibited Transaction Exemption 90-59 (Exemption Application No. D-8374),
as
amended by PTE 97-34 (Exemption Application No. D-10245 and D-10246) and by
PTE
2000-58 (Exemption Application No. D-10829) and PTE 2002-41 (Exemption
Application No. D-11077), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of
Labor.
“Uninsured
Cause”:
Any
cause of damage to a Mortgaged Property such that the complete restoration
of
such property is not fully reimbursable by the hazard insurance policies
required to be maintained on such Mortgaged Property.
“United
States Person”
or
“U.S.
Person”:
A
citizen or resident of the United States, a corporation, partnership or other
entity treated as a corporation or partnership for federal income tax purposes
(other than a partnership that is not treated as a U.S. Person pursuant to
any
applicable Treasury regulations) created or organized in, or under the laws
of,
the United States, any state thereof or the District of Columbia, or an estate
the income of which from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States,
or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have authority to control all substantial decisions of the trust. The
term “United States” shall have the meaning set forth in Section 7701 of
the Code or successor provisions.
55
“Unpaid
Interest Shortfall Amount”:
With
respect to each Class of Certificates and (i) the first Distribution Date,
zero, and (ii) any Distribution Date after the first Distribution Date, the
amount, if any, by which (1)(a) the Monthly Interest Distributable Amount for
that Class for the immediately preceding Distribution Date exceeds (b) the
aggregate amount distributed on that Class in respect of such Monthly Interest
Distributable Amount on the preceding Distribution Date plus (2) any such
shortfalls remaining unpaid from prior Distribution Dates.
“Upper
Tier REMIC”:
As
described in the Preliminary Statement.
“Value”:
With
respect to any Mortgage Loan and the related Mortgaged Property, the lesser
of:
(i) the
value
of such Mortgaged Property as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac; and
(ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with
the
proceeds of the Mortgage Loan;
provided,
however,
that in
the case of a Refinancing Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinancing Mortgage Loan at the time of origination by an appraiser
who
met the minimum requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. 94% of the voting rights shall be allocated among the Classes
of Certificates (other than the Class 1-X, Class 2-X, Class 2-X-B, Class 1-P,
Class 2-P and Class A-R Certificates), pro
rata,
based
on a fraction, expressed as a percentage, the numerator of which is the Class
Principal Balance of such Class and the denominator of which is the aggregate
of
the Class Principal Balances then outstanding, 1% of the voting rights shall
be
allocated to the Holders of the Class 1-X Certificates; 1% of the voting rights
shall be allocated to the Holders of the Class 2-X Certificates; 1% of the
voting rights shall be allocated to the Holders of the Class 2-X-B Certificates;
1% of the voting rights shall be allocated to the Holder of the Class 1-P
Certificate; 1% of the voting rights shall be allocated to the Holder of the
Class 2-P Certificate; and 1% of the voting rights shall be allocated to the
Holder of the Class A-R Certificate; provided,
however,
that
when none of the Regular Certificates is outstanding, 100% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate. The voting rights
allocated to a Class of Certificates shall be allocated among all Holders of
such Class, pro
rata,
based
on a fraction the numerator of which is the Certificate Principal Balance or
Certificate Notional Balance of each Certificate of such Class and the
denominator of which is the Class Principal Balance or Class Notional Balance
of
such Class; provided,
however,
that
any Certificate registered in the name of the Master Servicer, the Securities
Administrator, the Trustee or any of their respective affiliates shall not
be
included in the calculation of Voting Rights.
56
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
“Yield
Maintenance Account”:
The
account maintained by the Securities Administrator pursuant to Section 5.09
which shall be entitled “Yield Maintenance Account, ▇▇▇▇▇ Fargo Bank, N.A., in
trust for the registered Holders of MortgageIT Mortgage Loan Trust 2006-1,
Mortgage Loan Pass-Through Certificates, Series 2006-1” and which must be an
Eligible Account.
“Yield
Maintenance Agreement”:
Each
interest rate cap agreement, by and between the Yield Maintenance Provider
and
the Securities Administrator, on behalf of the Trust Fund, including the ISDA
Master Agreement between the Yield Maintenance Provider and the Securities
Administrator, the schedule thereto and the related confirmations (Ref. No.
IRG6936294.2A.2B, Ref. No. IRG6936298.2A.2B, Ref. No. IRG6936303.2A.2B, Ref.
No.
IRG6936308.2A.2B and Ref. No. IRG6936311.2A.2B), each dated as of February
22,
2006.
“Yield
Maintenance Amounts”:
For
each Yield Maintenance Agreement and any Distribution Date, the amount, if
any,
to be paid by the Yield Maintenance Provider to the Securities Administrator
pursuant to such Yield Maintenance Agreement, as calculated by the Yield
Maintenance Provider based on information in the Distribution Date Statement
delivered to it pursuant to Section 5.04.
“Yield
Maintenance Certificates”:
Each
of the Class 1-A1, Class 1-A2, Class 1-B1, Class 1-B2, Class 2-A1A, Class 2-A1B
and Class 2-A1C Certificates.
“Yield
Maintenance Distributable Amount”:
With
respect to each Distribution Date and the Yield Maintenance Certificates,
an
amount
equal to the product of (i) the excess, if any, of (x) LIBOR, subject to a
maximum of 11.00%, over (y) the applicable Strike Rate, (ii) the related Yield
Maintenance Notional Balance and (iii) a
fraction, the numerator of which is the actual number days in the related
interest Accrual Period and the denominator of which is 360.
“Yield
Maintenance Notional Balance”:
For
each Yield Maintenance Agreement and any Distribution Date, the lesser of (i)
the amount set forth on Schedule III hereto for the applicable Class or Classes
of Certificates and (ii) the aggregate Class Principal Balance of the related
Yield Maintenance Certificates.
“Yield
Maintenance Payment”:
The
payment remitted to the Securities Administrator by the Yield Maintenance
Provider under any Yield Maintenance Agreement.
“Yield
Maintenance Provider”:
The
Royal Bank of Scotland plc.
57
SECTION
1.02. Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance of Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders all the right, title and interest
of
the Depositor, including any security interest therein for the benefit of the
Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan
Schedule, including the related Cut-Off Date Principal Balance, all interest
due
thereon after the Cut-Off Date and all collections in respect of interest and
principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and
interest in and to the Distribution Account and all amounts from time to time
credited to and to the proceeds of the Distribution Account; (iii) any real
property that secured each such Mortgage Loan and that has been acquired by
foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any
insurance policies in respect of the Mortgage Loans; (v) all proceeds of any
of
the foregoing; and (vi) all other assets included or to be included in the
Trust
Fund. Such assignment includes all interest and principal due to the Depositor
or the Master Servicer after the Cut-Off Date with respect to the Mortgage
Loans.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, including all rights of the Seller under the Servicing
Agreements to the extent assigned in the Mortgage Loan Purchase Agreement.
The
Trustee hereby accepts such assignment, and shall be entitled to exercise all
rights of the Depositor under the Mortgage Loan Purchase Agreement as if, for
such purpose, it were the Depositor. The foregoing sale, transfer, assignment,
set-over, deposit and conveyance does not and is not intended to result in
creation or assumption by the Trustee of any obligation of the Depositor, the
Seller or any other Person in connection with the Mortgage Loans or any other
agreement or instrument relating thereto except as specifically set forth
herein.
In
connection with such transfer and assignment, the Seller, on behalf of the
Depositor, does hereby deliver on the Closing Date, unless otherwise specified
in this Section 2.01, to, and deposit with the Trustee, or the Custodian as
its
designated agent, the following documents or instruments with respect to each
Mortgage Loan (a “Mortgage
File”)
so
transferred and assigned:
58
| (i) |
the
original Mortgage Note, endorsed either on its face or by allonge
attached
thereto in blank or in the following form: “Pay to the order of Deutsche
Bank National Trust Company, as Trustee for MortgageIT Trust 2006-1,
without recourse”, or with respect to any lost Mortgage Note, an original
Lost Note Affidavit stating that the original mortgage note was lost,
misplaced or destroyed, together with a copy of the related mortgage
note;
provided,
however,
that such substitutions of Lost Note Affidavits for original Mortgage
Notes may occur only with respect to Mortgage Loans the aggregate
Cut-Off
Date Principal Balance of which is less than or equal to 2% of the
Cut-Off
Date Aggregate Principal Balance;
|
| (ii) |
except
as provided below, for each Mortgage Loan that is not a MERS Mortgage
Loan, the original Mortgage, and in the case of each MERS Mortgage
Loan,
the original Mortgage, noting the presence of the MIN for that Mortgage
Loan and either language indicating that the Mortgage Loan is a MOM
Loan
if the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was
not a MOM
Loan at origination, the original Mortgage and the assignment to
MERS, in
each case with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power
of
attorney, with evidence of recording thereon or, if such Mortgage
or power
of attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is
not
otherwise available, a certified copy of such Mortgage or power of
attorney, as the case may be, and that the original of such Mortgage
has
been forwarded to the public recording office, or, in the case of
a
Mortgage that has been lost, a copy thereof (certified as provided
for
under the laws of the appropriate jurisdiction) and a written Opinion
of
Counsel (delivered at the Seller’s expense) acceptable to the Trustee and
the Depositor that an original recorded Mortgage is not required
to
enforce the Trustee’s interest in the Mortgage
Loan;
|
| (iii) |
the
original or copy of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused
by the
public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy
of
such assumption, modification or substitution agreement, pending
delivery
of the original thereof, together with an Officer’s Certificate of the
Seller certifying that the copy of such assumption, modification
or
substitution agreement delivered to the Trustee (or its custodian)
on
behalf of the Trust Fund is a true copy and that the original of
such
agreement has been forwarded to the public recording
office;
|
| (iv) |
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original Assignment of Mortgage, in form and substance acceptable
for
recording. The Mortgage shall be assigned to “Deutsche Bank National Trust
Company, as Trustee for MortgageIT Trust 2006-1, without
recourse;”
|
| (v) |
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original copy of any intervening assignment of mortgage showing a
complete
chain of assignments, or, in the case of an intervening Assignment
of
Mortgage that has been lost, a written Opinion of Counsel (delivered
at
the Seller’s expense) acceptable to the Trustee that such original
intervening Assignment of Mortgage is not required to enforce the
Trustee’s interest in the Mortgage
Loans;
|
59
| (vi) |
the
original Primary Insurance Policy, if any, or certificate, if
any;
|
| (vii) |
the
original or a certified copy of lender’s title insurance policy;
and
|
| (viii) |
with
respect to any Cooperative Loan, the Cooperative Loan
Documents.
|
To
the
extent that, as of the Closing Date, MortgageIT shall be in possession of any
Mortgage Files with respect to any Mortgage Loan, until delivery of such
Mortgage File to the Custodian as provided in this Section 2.01, MortgageIT
shall hold such files as bailee and in trust for the Custodian; provided, that
any such Mortgage Files must be delivered to the Custodian within 30 days after
the Closing Date.
In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will take (or shall cause the applicable Servicer to take), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), such actions as are necessary to cause the MERS®
System
to indicate that such Mortgage Loans have been assigned by the Seller to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
that
are repurchased in accordance with this Agreement) in such computer files the
information required by the MERS®
System
to identify the series of the Certificates issued in connection with the
transfer of such Mortgage Loans to the MortgageIT Trust 2006-1. Notwithstanding
anything herein to the contrary, the Master Servicer and Securities
Administrator are not responsible for monitoring any MERS Mortgage
Loans.
With
respect to each Cooperative Loan, the Seller, on behalf of the Depositor, does
hereby deliver to the Trustee (or Custodian) the related Cooperative Loan
Documents and the Seller shall take (or cause the applicable Servicer to take),
at the expense of the Seller (with the cooperation of the Depositor, the Trustee
and the Master Servicer) such actions as are necessary under applicable law
(including but not limited to the relevant UCC) in order to perfect the interest
of the Trustee in the related Mortgaged Property.
Assignments
of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage
Loan (other than a Cooperative Loan) shall be recorded; provided,
however,
that
such assignments need not be recorded if, in the Opinion of Counsel (which
must
be from Independent Counsel and not at the expense of the Trust Fund or the
Trustee) acceptable to the Trustee, each Rating Agency and the Master Servicer,
recording in such states is not required to protect the Trust Fund’s interest in
the related Mortgage Loans; provided,
further,
notwithstanding the delivery of any Opinion of Counsel, each assignment of
Mortgage shall be submitted for recording by the Seller (or the Seller will
cause the applicable Servicer to submit each such assignment for recording),
at
the cost and expense of the Seller, in the manner described above, at no expense
to the Trust Fund or Trustee, upon the earliest to occur of (1) reasonable
direction by the Majority Certificateholders, (2) the occurrence of a bankruptcy
or insolvency relating to the Seller or the Depositor, or (3) with respect
to
any one Assignment of Mortgage, the occurrence of a bankruptcy, insolvency
or
foreclosure relating to the Mortgagor under the related Mortgage. Subject to
the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than three months thereafter except to the extent delays are caused
by the applicable recording office), the Seller shall properly record (or the
Seller will cause the applicable Servicer to properly record), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), in each public recording office where the related Mortgages are
recorded, each assignment referred to in Section 2.01(v) above with respect
to a
Mortgage Loan that is not a MERS Mortgage Loan.
60
The
Trustee agrees to execute and deliver to the Depositor on or prior to the
Closing Date an acknowledgment of receipt of the original Mortgage Note (with
any exceptions noted), substantially in the form attached as Exhibit G-1
hereto.
If
the
original lender’s title insurance policy, or a certified copy thereof, was not
delivered pursuant to Section 2.01(vii) above, the Seller shall deliver or
cause
to be delivered to the Trustee the original or a copy of a written commitment
or
interim binder or preliminary report of title issued by the title insurance
or
escrow company, with the original or a certified copy thereof to be delivered
to
the Trustee, promptly upon receipt thereof, but in any case within 175 days
of
the Closing Date. The Seller shall deliver or cause to be delivered to the
Trustee, promptly upon receipt thereof, any other documents constituting a
part
of a Mortgage File received with respect to any Mortgage Loan sold to the
Depositor by the Seller, including, but not limited to, any original documents
evidencing an assumption or modification of any Mortgage Loan.
For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Seller, in lieu of delivering the above
documents, herewith delivers to the Trustee, or to the Custodian on behalf
of
the Trustee, an Officer’s Certificate which shall include a statement to the
effect that all amounts received in connection with such prepayment that are
required to be deposited in the Distribution Account have been so deposited.
All
original documents that are not delivered to the Trustee on behalf of the Trust
Fund shall be held by the Master Servicer or the applicable Servicer in trust
for the Trustee, for the benefit of the Trust Fund and the
Certificateholders.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Seller shall have 90 days
to
cure such defect or deliver such missing document to the Trustee. If the Seller
does not cure such defect or deliver such missing document within such time
period, the Seller shall either repurchase or substitute for such Mortgage
Loan
in accordance with Section 2.03 hereof.
The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
SECTION
2.02. Acceptance by Trustee.
The
Trustee hereby accepts its appointment as Custodian hereunder and acknowledges
the receipt, subject to the provisions of Section 2.01 and subject to the review
described below and any exceptions noted on the exception report described
in
the next paragraph below, of the documents referred to in Section 2.01 above
and
all other assets included in the definition of “Trust Fund” and declares that,
in its capacity as Custodian, it holds and will hold such documents and the
other documents delivered to it constituting a Mortgage File, and that it holds
or will hold all such assets and such other assets included in the definition
of
“Trust Fund” in trust for the exclusive use and benefit of all present and
future Certificateholders.
61
The
Trustee further agrees, for the benefit of the Certificateholders, to review
each Mortgage File delivered to it and to certify and deliver to the Depositor,
the Seller and each Rating Agency an interim certification in substantially
the
form attached hereto as Exhibit G-2, within 90 days after the Closing Date
(or,
with respect to any document delivered after the Startup Day, within 45 days
of
receipt and with respect to any Qualified Substitute Mortgage, within five
Business Days after the assignment thereof) that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full
or any Mortgage Loan specifically identified in the exception report annexed
thereto as not being covered by such certification), (i) all documents
required to be reviewed by it pursuant Section 2.01 of this Agreement are
in its possession, (ii) such documents have been reviewed by it and have
not been mutilated, damaged or torn and relate to such Mortgage Loan and
(iii) based on its examination and only as to the foregoing, the
information set forth in the Mortgage Loan Schedule that corresponds to items
(i), (ii) and (xv) of the Mortgage Loan Schedule accurately reflects information
set forth in the Mortgage File. It is herein acknowledged that, in conducting
such review, the Trustee is under no duty or obligation to inspect, review
or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
No
later
than 180 days after the Closing Date, the Trustee shall deliver to the Depositor
and the Seller a final certification in the form annexed hereto as Exhibit
G-3
evidencing the completeness of the Mortgage Files, with any applicable
exceptions noted thereon.
If,
in
the process of reviewing the Mortgage Files and making or preparing, as the
case
may be, the certifications referred to above, the Trustee finds any document
or
documents constituting a part of a Mortgage File to be missing or not conforming
to the requirements set forth herein, at the conclusion of its review the
Trustee (or the Custodian as its designated agent) shall promptly notify the
Seller, the Depositor and the Master Servicer. In addition, upon the discovery
by the Seller or the Depositor (or upon receipt by the Trustee of written
notification of such breach) of a breach of any of the representations and
warranties made by the Seller in the Mortgage Loan Purchase Agreement in respect
of any Mortgage Loan that materially adversely affects such Mortgage Loan or
the
interests of the related Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
to
this Agreement.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee and that such property
not be part of the Depositor’s estate or property of the Depositor in the event
of any insolvency by the Depositor. In the event that such conveyance is deemed
to be, or to be made as security for, a loan, the parties intend that the
Depositor shall be deemed to have granted and does hereby grant to the Trustee
a
first priority perfected security interest in all of the Depositor’s right,
title and interest in and to the Mortgage Loans, the related Mortgage Notes
and
the related documents, and that this Agreement shall constitute a security
agreement under applicable law.
62
SECTION
2.03. Repurchase or Substitution of Mortgage Loans by the Seller.
(a) Upon
discovery or receipt of written notice that a document does not comply with
the
requirements of Section 2.01 hereof, or that a document is missing from, a
Mortgage File or of the breach by the Seller of any representation, warranty
or
covenant under the Mortgage Loan Purchase Agreement or in Section 2.04 or
Section 2.08 hereof in respect of any Mortgage Loan which materially adversely
affects the value of that Mortgage Loan or the interest therein of the
Certificateholders, the Trustee (or the Custodian as its designated agent)
shall
promptly notify the Seller of such noncompliance, missing document or breach
and
request that the Seller deliver such missing document or cure such noncompliance
or breach within 90 days from the date that the Seller was notified of such
missing document, noncompliance or breach, and if the Seller does not deliver
such missing document or cure such noncompliance or breach in all material
respects during such period, the Trustee shall enforce the Seller’s obligation
under the Mortgage Loan Purchase Agreement and cause the Seller to repurchase
that Mortgage Loan from the Trust Fund at the Purchase Price on or prior to
the
Determination Date following the expiration of such 90 day period (subject
to
Section 2.03(e) below); provided,
however,
that, in
connection with any such breach that could not reasonably have been cured within
such 90 day period, if the Seller shall have commenced to cure such breach
within such 90 day period, the Seller shall be permitted to proceed thereafter
diligently and expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement; and, provided
further,
that,
in the case of the breach of any representation, warranty or covenant made
by
the Seller in Schedule II to the Mortgage Loan Purchase Agreement, the Seller
shall be obligated to cure such breach or purchase the affected Mortgage Loans
for the Purchase Price or, if the Mortgage Loan or the related Mortgaged
Property acquired with respect thereto has been sold, then the Seller shall
pay,
in lieu of the Purchase Price, any excess of the Purchase Price over the Net
Liquidation Proceeds received upon such sale. The Purchase Price for the
repurchased Mortgage Loan or such other amount due shall be deposited in the
Distribution Account on or prior to the next Determination Date after the
Seller’s obligation to repurchase such Mortgage Loan arises. The Trustee, upon
receipt of written certification from the Securities Administrator of the
related deposit in the Distribution Account, shall release to the Seller the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as the Seller shall furnish to
it
and as shall be necessary to vest in the Seller any Mortgage Loan released
pursuant hereto and the Trustee shall have no further responsibility with regard
to such Mortgage File (it being understood that the Trustee shall have no
responsibility for determining the sufficiency of such assignment for its
intended purpose). In lieu of repurchasing any such Mortgage Loan as provided
above, the Seller may cause such Mortgage Loan to be removed from the Trust
Fund
(in which case it shall become a Deleted Mortgage Loan) and substitute one
or
more Qualified Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(d) below. It is understood and agreed
that
the obligation of the Seller to cure or to repurchase (or to substitute for)
any
Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Seller respecting such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
63
The
Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement including, without limitation, any obligation of the Seller
to purchase a Mortgage Loan on account of missing or defective documentation
or
on account of a breach of a representation, warranty or covenant as described
in
this Section 2.03(a).
Any
costs
and expenses incurred by the Trustee enforcing the obligations of the Seller
under this Section 2.03(a) shall be reimbursable to the Trustee from amounts
on
deposit in the Distribution Account.
(b) If
pursuant to the provisions of Section 2.03(a), the Seller repurchases or
otherwise removes from the Trust Fund a Mortgage Loan that is a MERS Mortgage
Loan, the Seller will take (or shall cause the applicable Servicer to take),
at
the expense of the Seller (with the cooperation of the Depositor, the Trustee
and the Master Servicer), such actions as are necessary either (i) cause MERS
to
execute and deliver an Assignment of Mortgage in recordable form to transfer
the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller or
its designee as the beneficial holder of such Mortgage Loan.
(c) [Reserved].
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which the Seller substitutes a Qualified Substitute Mortgage
Loan or Loans, such substitution shall be effected by the Seller delivering
to
the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage
Note, the Mortgage, the Assignment to the Trustee, and such other documents
and
agreements, with all necessary endorsements thereon, as are required by Section
2.01 hereof (subject to the exceptions provided therein), together with an
Officers’ Certificate stating that each such Qualified Substitute Mortgage Loan
satisfies the definition thereof and specifying the Substitution Adjustment
(as
described below), if any, in connection with such substitution; provided,
however,
that, in
the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage
Loan,
the Seller shall provide such documents and take such other action with respect
to such Qualified Substitute Mortgage Loans as are required pursuant to Section
2.01 hereof. The Trustee shall acknowledge receipt for such Qualified Substitute
Mortgage Loan or Loans and, within five Business Days thereafter, shall review
such documents as specified in Section 2.02 hereof and deliver to the related
Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans,
a
certification substantially in the form attached hereto as Exhibit G-2, with
any
exceptions noted thereon. Within 180 days of the date of substitution, the
Trustee shall deliver to the Seller and the Master Servicer a certification
substantially in the form of Exhibit G-3 hereto with respect to such Qualified
Substitute Mortgage Loan or Loans, with any exceptions noted thereon. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month
of
substitution are not part of the Trust Fund and will be retained by the Seller.
For the month of substitution, distributions to Certificateholders will reflect
the collections and recoveries in respect of such Deleted Mortgage Loan in
the
Due Period preceding the month of substitution and the Depositor or the Seller,
as the case may be, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Seller
shall
give or cause to be given written notice to the Certificateholders that such
substitution has taken place, shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon
such
substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute
part of the Trust Fund and shall be subject in all respects to the terms of
this
Agreement and, in the case of a substitution effected by the Seller, the
Mortgage Loan Purchase Agreement, including, in the case of a substitution
effected by the Seller all representations and warranties thereof included
in
the Mortgage Loan Purchase Agreement and all representations and warranties
thereof set forth in Section 2.04 hereof, in each case as of the date of
substitution.
64
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine, and
provide written certification to the Trustee and the Seller as to, the amount
(each, a “Substitution
Adjustment”),
if
any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate, as to each such Qualified Substitute Mortgage Loan,
of
the principal balance thereof as of the date of substitution, together with
one
month’s interest on such principal balance at the applicable Net Loan Rate. On
or prior to the next Determination Date after the Seller’s obligation to
repurchase the related Deleted Mortgage Loan arises, the Seller will deliver
or
cause to be delivered to the Securities Administrator for deposit in the
Distribution Account an amount equal to the related Substitution Adjustment,
if
any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage
Loan or Loans and a written certification from the Securities Administrator
of
its receipt of the deposit to the Distribution Account, shall release to the
Seller the related Mortgage File or Files and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Seller shall deliver to it and as shall be necessary to vest therein any Deleted
Mortgage Loan released pursuant hereto.
In
addition, the Seller shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution (either specifically
or as a class of transactions) will not cause an Adverse REMIC
Event.
If such
Opinion of Counsel cannot be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
(e) Upon
discovery by the Seller, the Master Servicer, the Depositor or the Trustee
that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code, the party discovering such fact shall within
two Business Days give written notice thereof to the other parties. In
connection therewith, the Seller shall repurchase or, subject to the limitations
set forth in Section 2.03(d), substitute one or more Qualified Substitute
Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier
of
discovery or receipt of such notice with respect to such affected Mortgage
Loan.
Any such repurchase or substitution shall be made in the same manner as set
forth in Section 2.03(a) above, if made by the Seller. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in
the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty.
65
SECTION
2.04. Representations and Warranties of the Seller with Respect to the Mortgage
Loans.
The
Seller hereby represents and warrants to the Trustee for the benefit of the
Certificateholders that the representations and warranties made by the Seller
pursuant to Schedule II to the Mortgage Loan Purchase Agreement are hereby
being
made to the Trustee and are true and correct as of the Closing
Date.
With
respect to the representations and warranties incorporated in this Section
2.04
that are made to the best of the Seller’s knowledge or as to which the Seller
has no knowledge, if it is discovered by the Depositor, the Seller, the Master
Servicer or the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of
the related Mortgage Loan or the interest therein of the Certificateholders
then, notwithstanding the Seller’s lack of knowledge with respect to the
substance of such representation and warranty being inaccurate at the time
the
representation or warranty was made, such inaccuracy shall be deemed a breach
of
the applicable representation or warranty.
Within
90
days of its discovery or its receipt of notice of any such missing or materially
defective documentation or any such breach of a representation or warranty,
the
Seller shall promptly deliver such missing document or cure such defect or
breach in all material respects or, in the event such defect or breach cannot
be
cured, the Seller shall repurchase the affected Mortgage Loan or cause the
removal of such Mortgage Loan from the Trust Fund and substitute for it one
or
more Qualified Substitute Mortgage Loans, in either case, in accordance with
Section 2.03 hereof.
It
is
understood and agreed that the representations and warranties incorporated
in
this Section 2.04 shall survive delivery of the Mortgage Files to the Trustee
and shall inure to the benefit of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon discovery by any of
the
Depositor, the Seller, the Master Servicer or the Trustee of a breach of any
of
the foregoing representations and warranties which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties, and in no event later than two Business Days from
the date of such discovery. It is understood and agreed that the obligations
of
the Seller set forth in Section 2.03(a) hereof to cure, substitute for or
repurchase a related Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement constitute the sole remedies available to the Certificateholders
or to
the Trustee on their behalf respecting a breach of the representations and
warranties incorporated in this Section 2.04.
66
SECTION
2.05. [Reserved].
SECTION
2.06. Representations and Warranties of the Depositor.
The
Depositor represents and warrants to the Trust Fund and the Trustee on behalf
of
the Certificateholders as follows:
(i) this
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general an except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust Fund of each Mortgage Loan, the Depositor had good and marketable
title to each Mortgage Loan (insofar as such title was conveyed to it by the
Seller) subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of
any
nature;
(iii) as
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust Fund;
(iv) the
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust Fund with any intent to hinder, delay or defraud any of its creditors;
(v) the
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) the
Depositor is not in violation of its certificate of incorporation or by-laws
or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is a
party or by which it or its properties may be bound, which default might result
in any material adverse changes in the financial condition, earnings, affairs
or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) the
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated hereby, do not and will not result
in a material breach or violation of any of the terms or provisions of, or,
to
the knowledge of the Depositor, constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, nor will such actions
result in any violation of the provisions of the certificate of incorporation
or
by-laws of the Depositor or, to the best of the Depositor’s knowledge without
independent investigation, any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Depositor
or
any of its properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the ability of
the
Depositor to perform its obligations under this Agreement);
67
(viii) to
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or “blue sky” laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) there
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
SECTION
2.07. Issuance of Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02 hereof, together with the assignment to it of all other assets included
in
the Trust Fund, receipt of which is hereby acknowledged. Concurrently with
such
assignment and delivery and in exchange therefor, the Securities Administrator,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, has caused to be executed, authenticated and delivered to or upon
the
order of the Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
SECTION
2.08. Representations and Warranties of the Seller.
The
Seller hereby represents and warrants to the Trust Fund and the Trustee on
behalf of the Certificateholders that, as of the Closing Date or as of such
date
specifically provided herein:
(i) the
Seller is duly organized, validly existing and in good standing as a corporation
under the laws of the State of New York and is and will remain in compliance
with the laws of each state in which any Mortgaged Property is located to the
extent necessary to fulfill its obligations hereunder;
(ii) the
Seller has the power and authority to hold each Mortgage Loan and to sell each
Mortgage Loan. The Seller has the power and authority to execute, deliver and
perform, and to enter into and consummate, all transactions contemplated by
this
Agreement. The Seller has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this Agreement
and this Agreement, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a legal, valid and binding obligation of
the
Seller, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or
reorganization or other similar laws in relation to the rights of creditors
generally;
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(iii) the
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
articles of incorporation or by-laws, respectively, or constitute a default
under or result in a material breach or acceleration of, any material contract,
agreement or other instrument to which the Seller is a party or which may be
applicable to the Seller or its assets;
(iv) the
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its respective performance and compliance with the terms
of
this Agreement will not constitute a violation with respect to, any order or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) the
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement;
(vi) the
Seller has good, equitable and indefeasible title to the Mortgage Loans, free
and clear of any and all liens, pledges, charges or security interests of any
nature encumbering the Mortgage Loans and upon the payment of the Purchase
Price
(as defined in the Mortgage Loan Purchase Agreement) by the Depositor, the
Depositor will have good and marketable title to the Mortgage Notes and Mortgage
Loans, free and clear of all liens or encumbrances;
(vii) the
Mortgage Loans are not being transferred by the Seller with any intent to
hinder, delay or defraud any creditors of the Seller;
(viii) there
are
no actions or proceedings against, or investigations known to, the Seller before
any court, administrative or other tribunal (A) that might prohibit the seller
from entering into this Agreement, (B) seeking to prevent the sale of the
Mortgage Loans or the consummation of the transactions contemplated by this
Agreement or (C) that might prohibit or materially and adversely affect the
performance by the Seller of its obligations under, or validity or
enforceability of, this Agreement or the Mortgage Loan Purchase
Agreement;
(ix) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained;
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(x) no
certificate of an officer, written statement or written report delivered
pursuant to the terms hereof of the Seller contains any untrue statement of
a
material fact or omits to state any material fact necessary to make the
certificate, statement or repot not misleading;
(xi) 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; and
(xii) the
Seller is not insolvent, nor will the Seller be made insolvent by the transfer
of the Mortgage Loans to the Depositor, nor is the Seller aware of any pending
insolvency of the Seller.
SECTION
2.09. Covenants of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest
therein; the Seller will notify the Trustee, as assignee of the Depositor,
and
the Master Servicer of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right, title
and interest of the Trust Fund, as assignee of the Depositor, in, to and under
the Mortgage Loans, against all claims of third parties claiming through or
under the Seller; provided,
however,
that
nothing in this Section 2.09 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans any liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
The
Seller shall, within 30 days after the Closing Date, provide the Master
Servicer, the Securities Administrator, the Trustee, the Yield Maintenance
Provider, each Servicer and the Depositor a complete list of each party to
the
MortgageIT Mortgage Loan Trust 2006-1 transaction, including all
Servicers.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
SECTION
3.01. Master Servicer to Service and Administer the Mortgage Loans.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers to service and administer their respective Mortgage Loans in
accordance with the terms of the applicable Servicing Agreement and the Master
Servicing Guide, and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with
each
Servicer as necessary from time-to-time to carry out the Master Servicer’s
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer
and
shall cause each Servicer to perform and observe the covenants, obligations
and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer’s servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers’ and Master Servicer’s records, and based on such
reconciled and corrected information, prepare the statements specified in
Section 5.04 and any other information and statements required hereunder. The
Master Servicer shall reconcile the results of its Mortgage Loan monitoring
with
the actual remittances of the Servicers to the related Servicing Accounts
pursuant to the applicable Servicing Agreements.
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The
Trustee shall furnish the Servicers and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee,
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property, which
limited powers of attorney shall provide that the Trustee will not be liable
for
the actions or omissions of the Servicers or Master Servicer in exercising
such
powers.
The
Master Servicer shall not without the Trustee’s written consent (i) initiate any
action, suit or proceeding solely under the Trustee’s name without indicating
the Master Servicer’s representative capacity or (ii) take any action with the
intent to cause, and which actually does cause, the Trustee to be registered
to
do business in any state. The Master Servicer shall indemnify the Trustee for
any and all costs, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such powers of attorney
by
the Master Servicer.
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee (including in its capacity as Custodian hereunder) regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request
and
during normal business hours at the office of the Trustee; provided,
however,
that,
unless otherwise required by law, the Trustee shall not be required to provide
access to such records and documentation if the provision thereof would violate
the legal right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Trustee’s actual costs.
The
Trustee, upon the written request of the Master Servicer, shall execute and
deliver to the related Servicer and the Master Servicer any court pleadings,
requests for trustee’s sale or other documents necessary or desirable to (i) the
foreclosure or trustee’s sale with respect to a Mortgaged Property; (ii) any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage; (iii) obtain a deficiency judgment against the Mortgagor;
or
(iv) enforce any other rights or remedies provided by the Mortgage Note or
Mortgage or otherwise available at law or equity.
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SECTION
3.02. REMIC-Related Covenants.
For
as
long as each REMIC created hereunder shall exist, the Trustee and the Securities
Administrator shall act in accordance herewith to treat each such REMIC as
a
REMIC, and the Trustee and the Securities Administrator shall comply with any
directions of the Depositor, the related Servicer or the Master Servicer to
assure such continuing treatment. In particular, the Trustee, the Securities
Administrator and the Master Servicer shall not (a) sell or knowingly permit
the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Mortgage Loans or is otherwise permitted pursuant to this Agreement or the
Trustee has received a REMIC Opinion prepared at the expense of the Trust Fund;
and (b) other than with respect to a substitution pursuant to the Mortgage
Loan
Purchase Agreement or Section 2.03 or 2.04 of this Agreement or as otherwise
provided in this Agreement, as applicable, accept any contribution to any REMIC
after the Startup Day without receipt of a REMIC Opinion.
SECTION
3.03. Monitoring of Servicers.
(a) The
Master Servicer shall be responsible for reporting to the Trustee (on behalf
of
the Trust Fund) and the Depositor the compliance by each Servicer with its
duties under the related Servicing Agreement. In the review of each Servicer’s
activities, the Master Servicer may rely upon an officer’s certificate of the
Servicer with regard to such Servicer’s compliance with the terms of its
Servicing Agreement. In the event that the Master Servicer, in its judgment,
determines that a Servicer should be terminated in accordance with its Servicing
Agreement, or that a notice should be sent pursuant to such Servicing Agreement
with respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Depositor
and
the Trustee thereof and the Master Servicer shall issue such notice or take
such
other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trust Fund and the Certificateholders,
shall (acting as agent of the Trust Fund when enforcing the Trust Fund’s rights
under each Servicing Agreement) (i) enforce the obligations of each Servicer
under the related Servicing Agreement, and (ii) in the event that a Servicer
fails to perform its obligations in accordance with the related Servicing
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or enter into a new Servicing Agreement with a successor Servicer
selected by the Master Servicer which the Master Servicer shall cause the
Trustee to acknowledge; provided,
however,
it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions can
be
fully transferred to such successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense, provided that the Master Servicer shall not be required to
prosecute or defend any legal action except to the extent that the Master
Servicer shall have received reasonable indemnity for its costs and expenses
in
pursuing such action.
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(c) To
the
extent that the costs and expenses of the Master Servicer related to any
termination of a Servicer, appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer with respect to any Servicing
Agreement (including, without limitation, (i) all legal costs and expenses
and
all due diligence costs and expenses associated with an evaluation of the
potential termination of the Servicer as a result of an event of default by
such
Servicer and (ii) all costs and expenses associated with the complete transfer
of servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not
fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall
be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
(d) The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
(e) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the Servicer, if any, that it
replaces.
SECTION
3.04. Fidelity Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
SECTION
3.05. Power to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders, the Trust Fund and
the
Trustee, customary consents or waivers and other instruments and documents,
(ii)
to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds,
Liquidation Proceeds and Recoveries and (iv) to effectuate, in its own name,
on
behalf the Trust Fund, or in the name of the Trust Fund, foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage
Loan, in each case, in accordance with the provisions of this Agreement and
the
related Servicing Agreement, as applicable; provided,
however,
that
the Master Servicer shall not (and, consistent with its responsibilities under
Section 3.03, shall not permit any Servicer to) knowingly or intentionally
take
any action, or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
would result in an Adverse REMIC Event unless the Master Servicer has received
an Opinion of Counsel (but not at the expense of the Master Servicer) to the
effect that the contemplated action will not result in an Adverse REMIC Event.
The Trustee shall furnish the Master Servicer, upon written request from a
Servicing Officer, with any limited powers of attorney empowering the Master
Servicer or any Servicer to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the applicable Servicing Agreement and this Agreement, and
the
Trustee shall execute and deliver such other documents, as the Master Servicer
may request, to enable the Master Servicer to master service and administer
the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with Accepted Master Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer
or
any Servicer). In instituting foreclosures or similar proceedings, the Master
Servicer shall institute such proceedings either in its own name on behalf
of
the Trust Fund or in the name of the Trust Fund (or cause the related Servicer,
pursuant to the related Servicing Agreement, to institute such proceedings
either in the name of such Servicer on behalf of the Trust Fund or in the name
of the Trust Fund), unless otherwise required by law or otherwise appropriate.
If the Master Servicer or the Trustee has been advised that it is likely that
the laws of the state in which action is to be taken prohibit such action if
taken in the name of the Trust Fund or the Trustee on its behalf or that the
Trust Fund or the Trustee, as applicable, would be adversely affected under
the
“doing business” or tax laws of such state if such action is taken in its name,
the Master Servicer shall join with the Trustee, on behalf of the Trust Fund,
in
the appointment of a co-trustee pursuant to Section 8.10 hereof. In the
performance of its duties hereunder, the Master Servicer shall be an independent
contractor and shall not, except in those instances where it is taking action
in
the name of the Trustee, be deemed to be the agent of the Trustee on behalf
of
the Trust Fund.
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SECTION
3.06. Due-on-Sale Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement and to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
SECTION
3.07. Release of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
any Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the applicable Servicing
Agreement, promptly furnish to the Custodian, on behalf of the Trustee, two
copies of a certification substantially in the form of Exhibit F hereto signed
by a Servicing Officer or in a mutually agreeable electronic format which will,
in lieu of a signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the related
Servicing Account maintained by the applicable Servicer pursuant to Section
4.01
or by the applicable Servicer pursuant to its Servicing Agreement have been
or
will be so deposited) and shall request that the Trustee (or the Custodian,
on
behalf of the Trustee) deliver to the applicable Servicer the related Mortgage
File. Upon receipt of such certification and request, the Trustee (or the
Custodian, on behalf of the Trustee), shall promptly release the related
Mortgage File to the applicable Servicer and the Trustee (and the Custodian,
if
applicable) shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, each Servicer is authorized, to give,
as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or assignment, as the case may be, shall
be
chargeable to the related Servicing Account.
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(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the applicable Servicing Agreement, the Trustee shall
execute such documents as shall be prepared and furnished to the Trustee by
a
Servicer or the Master Servicer (in form reasonably acceptable to the Trustee)
and as are necessary to the prosecution of any such proceedings. The Trustee
(or
the Custodian, on behalf of the Trustee), shall, upon the request of a Servicer
or the Master Servicer, and delivery to the Trustee (the Custodian, on behalf
of
the Trustee), of two copies of a request for release signed by a Servicing
Officer substantially in the form of Exhibit F (or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate
from
a Servicing Officer), release the related Mortgage File held in its possession
or control to the Servicer or the Master Servicer, as applicable. Such trust
receipt shall obligate the Servicer or the Master Servicer to return the
Mortgage File to the Trustee (or the Custodian on behalf of the Trustee) when
the need therefor by the Servicer or the Master Servicer no longer exists unless
the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified, the
Mortgage File shall be released by the Trustee (or the Custodian on behalf
of
the Trustee), to the Servicer or the Master Servicer.
SECTION
3.08. Documents, Records and Funds in Possession of Master Servicer To Be Held
for Trust Fund.
(a) The
Master Servicer shall transmit and each Servicer (to the extent required by
the
related Servicing Agreement) shall transmit to the Trustee (or Custodian) such
documents and instruments coming into the possession of the Master Servicer
or
such Servicer from time to time as are required by the terms hereof, or in
the
case of the Servicers, the applicable Servicing Agreement, to be delivered
to
the Trustee (or Custodian). Any funds received by the Master Servicer or by
a
Servicer in respect of any Mortgage Loan or which otherwise are collected by
the
Master Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds
or
Recoveries in respect of any Mortgage Loan shall be held for the benefit of
the
Trust Fund and the Certificateholders subject to the Master Servicer’s right to
retain or withdraw from the Distribution Account the Master Servicing Fee,
any
additional compensation pursuant to Section 3.14 and any other amounts provided
in this Agreement, and to the right of each Servicer to retain its Servicing
Fee
and any other amounts as provided in the applicable Servicing Agreement. The
Master Servicer shall, and (to the extent provided in the applicable Servicing
Agreement) shall cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices
of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
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(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, Insurance
Proceeds or Recoveries, shall be held by the Master Servicer for and on behalf
of the Trust Fund and the Certificateholders and shall be and remain the sole
and exclusive property of the Trust Fund; provided,
however,
that
the Master Servicer and each Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable to
the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
SECTION
3.09. Standard Hazard Insurance and Flood Insurance Policies.
(a) For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall enforce
any obligation of the Servicers under the related Servicing Agreements to
maintain or cause to be maintained standard fire and casualty insurance and,
where applicable, flood insurance, all in accordance with the provisions of
the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require
such
additional insurance.
(b) Pursuant
to Section 4.01 and 4.02, any amounts collected by the Servicers or the Master
Servicer, or by any Servicer, under any insurance policies (other than amounts
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the Distribution Account, subject
to withdrawal pursuant to Section 4.02 and 4.03. Any cost incurred by the Master
Servicer or any Servicer in maintaining any such insurance if the Mortgagor
defaults in its obligation to do so shall be added to the amount owing under
the
Mortgage Loan where the terms of the Mortgage Loan so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Section 4.02
and
4.03.
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SECTION
3.10. Presentment of Claims and Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to, prepare and present on behalf of
the
Trustee, the Trust Fund and the Certificateholders all claims under the
Insurance Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in
the
Distribution Account upon receipt, except that any amounts realized that are
to
be applied to the repair or restoration of the related Mortgaged Property as
a
condition precedent to the presentation of claims on the related Mortgage Loan
to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
SECTION
3.11. Maintenance of the Primary Insurance Policies.
(a) The
Master Servicer shall not take, or permit any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. The Master Servicer shall use
its
best reasonable efforts to cause each Servicer (to the extent required under
the
related Servicing Agreement) to keep in force and effect (to the extent that
the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan (including any lender-paid
Primary Insurance Policy) in accordance with the provisions of this Agreement
and the related Servicing Agreement, as applicable. The Master Servicer shall
not, and shall not permit any Servicer (to the extent required under the related
Servicing Agreement) to, cancel or refuse to renew any such Primary Insurance
Policy that is in effect at the date of the initial issuance of the Mortgage
Note and is required to be kept in force hereunder except in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as
applicable.
(b) The
Master Servicer agrees to cause each Servicer (to the extent required under
the
related Servicing Agreement) to present, on behalf of the Trustee, the Trust
Fund and the Certificateholders, claims to the insurer under any Primary
Insurance Policies and, in this regard, to take such reasonable action as shall
be necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Pursuant to Section 4.01 and 4.02, any amounts
collected by the Servicer under any Primary Insurance Policies shall be
deposited in the Distribution Account, subject to withdrawal pursuant to Section
4.03.
SECTION
3.12. Trustee to Retain Possession of Certain Insurance Policies and
Documents.
The
Trustee (or the Custodian, as directed by the Trustee), shall retain possession
and custody of the originals (to the extent available) of any Primary Insurance
Policies, or certificate of insurance if applicable and available, and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement and which come into its possession. Until
all
amounts distributable in respect of the Certificates have been distributed
in
full and the Master Servicer otherwise has fulfilled its obligations under
this
Agreement, the Trustee (or its Custodian, if any, as directed by the Trustee)
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement. The Master
Servicer shall promptly deliver or cause to be delivered to the Trustee (or
the
Custodian, as directed by the Trustee), upon the execution or receipt thereof
the originals of any Primary Insurance Policies, any certificates of renewal,
and such other documents or instruments that constitute portions of the Mortgage
File that come into the possession of the Master Servicer from time to
time.
77
SECTION
3.13. Realization Upon Defaulted Mortgage Loans.
Subject
to Sections 3.24 and 3.25 herein, the Master Servicer shall cause each Servicer
(to the extent required under the related Servicing Agreement) either (i) to
foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments or (ii) as an alternative to foreclosure,
to
sell such defaulted Mortgage Loans at fair market value to third-parties, if
the
Servicer, or the Subservicer on its behalf, reasonably believes that such sale
would maximize proceeds to the Trust Fund (on a present value basis) with
respect to those Mortgage Loans, all in accordance with the applicable Servicing
Agreement.
SECTION
3.14. Additional Compensation to the Master Servicer.
Pursuant
to Section 4.02(c), certain income and gain realized from any investment of
funds in the Distribution Account shall be for the benefit of the Master
Servicer as additional compensation. Servicing compensation in the form of
assumption fees, if any, late payment charges, as collected, if any, or
otherwise (but, unless otherwise specifically permitted in a Servicing
Agreement, not including any Prepayment Penalty Amounts) shall be retained
by
the applicable Servicer, or the Master Servicer, and shall not be deposited
in
the related Servicing Account or Distribution Account. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement. The amount of
the
aggregate compensation payable as set forth in this Section 3.14 plus the Master
Servicing Fee due to the Master Servicer in respect of any Distribution Date
shall be reduced in accordance with Section 5.06.
SECTION
3.15. REO Property.
(a) In
the
event the Trust Fund (or the Trustee on its behalf) acquires ownership of any
REO Property in respect of any related Mortgage Loan, the deed or certificate
of
sale shall be issued to the Trust Fund, or if required under applicable law,
to
the Trustee, or to its nominee, on behalf of the Trust Fund. The Master Servicer
shall, to the extent provided in the applicable Servicing Agreement, cause
the
applicable Servicer to sell, any REO Property as expeditiously as possible
(and
in no event later than three years after acquisition) and in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as applicable.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
cause the applicable Servicer to protect and conserve, such REO Property in
the
manner and to the extent required by the applicable Servicing Agreement, in
accordance with the REMIC Provisions and in a manner that does not result in
a
tax on “net income from foreclosure property” or cause such REO Property to fail
to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of
the Code.
78
(b) The
Master Servicer shall, to the extent required by the related Servicing
Agreement, cause the applicable Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the related
Servicing Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition
of
such REO Property; provided, that any such unreimbursed Advances as well as
any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior
to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(d) To
the
extent provided in the related Servicing Agreement, the Liquidation Proceeds
from the final disposition of the REO Property, net of any payment to the Master
Servicer and the applicable Servicer as provided above shall be deposited in
the
related Servicing Account on or prior to the applicable Determination Date
in
the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the related
Distribution Account on the next succeeding Servicer Remittance
Date.
SECTION
3.16. Assessments of Compliance and Attestation Reports.
(a) Assessments
of Compliance.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March 2007,
the Master Servicer and the Securities Administrator, each at its own expense,
shall furnish, and each such party shall cause any Servicing Function
Participant engaged by it to furnish or otherwise make available, each at its
own expense, to the Securities Administrator and the Depositor (provided that
the Master Servicer shall furnish copies of each such report received by it
from
the Servicers to the Depositor), a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (A) a statement by such party
of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (C) such party’s assessment of
compliance with the Relevant Servicing Criteria as of and for the fiscal year
covered by the Form 10-K required to be filed pursuant to Section 3.19(b) and
for each fiscal year thereafter, whether or not a Form 10-K is required to
be
filed, including, if there has been any material instance of noncompliance
with
the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such party’s assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
79
(ii) No
later
than the end of each fiscal year for the Trust Fund for which a 10-K is required
to be filed, the Master Servicer and the Trustee, in its capacity as Custodian,
shall each forward to the Securities Administrator and the Depositor the name
of
each Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared
by
such Servicing Function Participant (provided, however, that the Master Servicer
need not provide such information to the Securities Administrator so long as
the
Master Servicer and Securities Administrator are the same Person). When the
Master Servicer, the Trustee, in its capacity as Custodian, and the Securities
Administrator (or any Servicing Function Participant engaged by them) submit
their assessments to the Securities Administrator, such parties will also at
such time include the assessment (and attestation pursuant to subsection (b)
of
this Section 3.16) of each Servicing Function Participant engaged by
it.
(iii) Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator, the Trustee, in its capacity as
Custodian, and any Servicing Function Participant engaged by such parties as
to
the nature of any material instance of noncompliance with the Relevant Servicing
Criteria by each such party, and (ii) the Securities Administrator shall confirm
that the assessments, taken as a whole, address all of the Servicing Criteria
and taken individually address the Relevant Servicing Criteria for each party
as
set forth on Exhibit R and on any similar exhibit set forth in each Servicing
Agreement in respect of each Servicer and notify the Depositor of any
exceptions.
(iv) The
Master Servicer shall include all annual reports on assessment of compliance
received by it from the Servicer (or the Subservicer on its behalf) with its
own
assessment of compliance to be submitted to the Securities Administrator
pursuant to this Section.
(v) In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by the parties is terminated, assigns its rights
and obligations under or resigns pursuant to the terms of this Agreement, or
any
other applicable agreement, as the case may be, such party shall provide a
report on assessment of compliance pursuant to this Section 3.16(a) or to such
other applicable agreement, notwithstanding any such termination, assignment
or
resignation.
(b) Attestation
Reports.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March 2007,
the Master Servicer, the Securities Administrator, the Trustee, in its capacity
as Custodian, each at its own expense, shall cause, and each such party shall
cause any Servicing Function Participant engaged by it to cause, each at its
own
expense, a registered public accounting firm (which may also render other
services to the Master Servicer, the Trustee, in its capacity as Custodian,
the
Securities Administrator, or such other Servicing Function Participants, as
the
case may be) and that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Securities Administrator and the
Depositor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii)
on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
80
(ii) Promptly
after receipt of each such assessment of compliance and attestation report
the
Securities Administrator shall confirm that each assessment submitted pursuant
to subsection (a) of this Section 3.16 is coupled with an attestation meeting
the requirements of this Section and notify the Depositor of any
exceptions.
(iii) The
Master Servicer shall include each such attestation furnished to it by the
servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
(iv) In
the
event the Master Servicer, the Securities Administrator, any servicer or any
Servicing Function Participant engaged by the parties is terminated, assigns
its
rights and duties under or resigns pursuant to the terms of this Agreement,
or
any applicable custodial agreement, servicing agreement or subservicing
agreement, as the case may be, such party shall cause a registered public
accounting firm to provide an attestation pursuant to this Section 3.16
notwithstanding any such termination, assignment or resignation.
SECTION
3.17. Annual Compliance Statement.
The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any Additional Servicer or
Servicing Function Participant engaged by it to deliver) to the Depositor and
the Securities Administrator on or before March 10 (with a 5 calendar day cure
period) of each year, commencing in March 2007, an Officer’s Certificate
stating, as to the signer thereof, that (A) a review of such party’s activities
during the preceding calendar year or portion thereof and of such party’s
performance under this Agreement, or such other applicable agreement in the
case
of an Additional Servicer or a Servicing Function Participant, has been made
under such officer’s supervision and (B) to the best of such officer’s
knowledge, based on such review, such party has fulfilled all its obligations
under this Agreement, or such other applicable agreement in the case of an
Additional Servicer or a Servicing Function Participant, in all material
respects throughout such year or portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status
thereof.
81
The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicer with its own annual statement of compliance to be submitted
to
the Securities Administrator pursuant to this Section.
In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by parties is terminated or resigns pursuant to
the
terms of this Agreement, or any applicable agreement in the case of a Servicing
Function Participant, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.17 with respect to the period of time
it
was subject to this Agreement or any other applicable agreement, as the case
may
be.
SECTION
3.18. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
Each
Form
10-K shall include a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, required to be included
therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Securities Administrator
and
the Master Servicer shall provide, and each such party shall cause any Servicing
Function Participant engaged by it to provide, to the Person who signs the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the “Certifying
Person”),
by
March 10 (with a 5 calendar day cure period) of each year in which the Trust
Fund is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, a
“Back-Up
Certification”),
in
the form attached hereto as Exhibit M, upon which the Certifying Person, the
entity for which the Certifying Person acts as an officer, and such entity’s
officers, directors and Affiliates (collectively with the Certifying Person,
“Certification
Parties”)
can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of
the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at ▇▇▇-▇▇▇-▇▇▇▇. In the
event any such party or any Servicing Function Participant engaged by such
party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable subservicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section 3.18
with respect to the period of time it was subject to this Agreement or any
applicable subservicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not
be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in
the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing Agreement or Custodial
Agreement.
SECTION
3.19. Reports Filed with Securities and Exchange Commission.
(a) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust Fund any Form
10-D
required by the Exchange Act, in form and substance as required by the Exchange
Act. The Securities Administrator shall file each Form 10-D with a copy of
the
related Distribution Date Statement attached thereto. Any disclosure in addition
to the Distribution Date Statement that is required to be included on Form
10-D
(“Additional
Form 10-D Disclosure”)
shall
be reported by the parties set forth on Exhibit O to the Securities
Administrator and Depositor and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except as set forth in the next paragraph.
82
(ii) As
set
forth on Exhibit S hereto, within 5 calendar days after the related Distribution
Date, (i) the parties to the MortgageIT Mortgage Loan Trust 2006-1 transaction
shall be required to provide to the Securities Administrator and Depositor,
by a
responsible officer thereof, in ▇▇▇▇▇-compatible form (which may be Word or
Excel documents easily convertible to ▇▇▇▇▇ format), or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 10-D Disclosure, if applicable, together
with an Additional Disclosure Notification in the form of Exhibit U hereto
(an
“Additional Disclosure Notification”) and (ii) the Depositor will approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Seller will be responsible
for
any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
in Form 10-D pursuant to this paragraph.
(iii)After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a copy of the Form 10-D to the Depositor (provided that such
Form
10-D includes any Additional Form 10-D Disclosure). Within
two Business Days after receipt of such copy, but no
later
than the 13th
calendar
day after the Distribution Date, the Depositor shall notify the Securities
Administrator in writing of any changes to or approval of such Form 10-D.
In the
absence of receipt of any written changes or approval, the Securities
Administrator shall be entitled to assume that such Form 10-D is in final
form
and the Securities Administrator may proceed with the execution and filing
of
Form 10-D. A duly authorized officer of the Master Servicer shall sign each
Form
10-D. If a Form 10-D cannot be filed on time or if a previously filed Form
10-D
needs to be amended, the Securities Administrator will follow the procedures
set
forth in subsection (d)(ii) of this Section 3.19. Promptly (but no later
than 1
Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each
Form
10-D filed by the Securities Administrator. Each party to this Agreement
acknowledges that the performance by the Master Servicer and the Securities
Administrator of their respective duties under this Section 3.19(a) related
to
the timely preparation, execution and filing of Form 10-D is contingent upon
such parties strictly observing all applicable deadlines in the performance
of
their duties under this Section 3.19(a). Neither the Master Servicer nor
the
Securities Administrator shall have any liability for any loss, expense,
damage,
claim arising out of or with respect to any failure to properly prepare,
execute
and/or timely file such Form 10-D, where such failure results from the
Securities Administrator’s inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence,
bad
faith or willful misconduct.
83
(b) Reports
Filed on Form 10-K.
(i) On
or
prior to the 90th day after the end of each fiscal year of the Trust Fund in
which a Form 10-K is required to be filed or such earlier date as may be
required by the Exchange Act (the “10-K
Filing Deadline”)
(it
being understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2007, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund 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, the related
Servicing Agreement and custodial agreement, (i) an annual compliance statement
for each Servicer, each Additional Servicer, the Master Servicer and the
Securities Administrator and any Servicing Function Participant engaged by
such
parties (each, a “Reporting
Servicer”)
as
described under Section 3.17 and in such other agreement, (ii)(A) the annual
reports on assessment of compliance with servicing criteria for each Reporting
Servicer, as described under Section 3.16(a), and (B) if each Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 3.16(a) identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if each Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 3.16(a) is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why such report
is not included, (iii)(A) the registered public accounting firm attestation
report for each Reporting Servicer, as described under Section 3.16(b), and
(B)
if any registered public accounting firm attestation report described under
Section 3.16(b) identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, and (iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described
in
Section 3.18. Any disclosure or information in addition to (i) through (iv)
above that is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported by the parties set
forth on
Exhibit O to the Depositor and Securities Administrator and directed and
approved by the Depositor pursuant to the following paragraph and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth
in
the next paragraph.
(ii) As
set
forth on Exhibit S hereto, no later than March 10 (with a 5 calendar day cure
period) of each year that the Trust Fund is subject to the Exchange Act
reporting requirements, commencing in 2007, (i) the parties to the MortgageIT
Mortgage Loan Trust 2006-1 transaction shall be required to provide to the
Securities Administrator and the Depositor, by a responsible officer thereof,
in
▇▇▇▇▇-compatible form (which may be Word or Excel documents easily convertible
to ▇▇▇▇▇ format), or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
in Form 10-K pursuant to this paragraph.
84
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Depositor. Within
three Business Days after receipt of such copy, but no
later
than March 25th,
the
Depositor shall notify the Securities Administrator in writing of any changes
to
or approval of such Form 10-K. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 10-K is in final form and the Securities Administrator may proceed with
the
execution and filing of the Form 10-K. A senior officer of the Master Servicer
in charge of the master servicing function shall sign each Form 10-K. If
a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to
be
amended, the Securities Administrator will follow the procedures set forth
in
subsection (d) of this Section 3.19. Promptly (but no later than 1 Business
Day)
after filing with the Commission, the Securities Administrator will make
available on its internet website a final executed copy of each Form 10-K
filed
by the Securities Administrator. The parties to this Agreement acknowledge
that
the performance by the Master Servicer and the Securities Administrator of
its
duties under this Section 3.19(b) related to the timely preparation, execution
and filing of Form 10-K is contingent upon such parties (and any Additional
Servicer or Servicing Function Participant) strictly observing all applicable
deadlines in the performance of their duties under this Section 3.19(b),
Section
3.18, Section 3.17, Section 3.16(a) and Section 3.16(b). Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 10-K, where such failure
results from the Securities Administrator’s inability or failure to receive, on
a timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
(c) Reports
Filed on Form 8-K.
(i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”),
and
if requested by the Depositor, the Securities Administrator shall prepare and
file on behalf of the Trust Fund a Form 8-K, as required by the Exchange Act,
provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included in Form 8-K (“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit O to the Depositor and
Securities Administrator and directed and approved by the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
85
(ii) As
set
forth on Exhibit T hereto, for so long as the Trust Fund is subject to the
Exchange Act reporting requirements, no later than noon (New York City time)
on
the 2nd Business Day after the occurrence of a Reportable Event (i) the parties
to the MortgageIT Mortgage Loan Trust 2006-1 transaction shall be required
to
provide to the Securities Administrator and the Depositor, by a responsible
officer thereof, in ▇▇▇▇▇-compatible form (which may be Word or Excel documents
easily convertible to ▇▇▇▇▇ format), or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance
of
any Form 8-K Disclosure Information, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Form 8-K
Disclosure Information. The Seller will be responsible for any reasonable fees
and expenses assessed or incurred by the Securities Administrator in connection
with including any Form 8-K Disclosure Information in Form 8-K pursuant to
this
paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Depositor. Promptly, but no later
than the close of business on the third Business Day after the Reportable Event,
the Depositor shall notify the Securities Administrator in writing of any change
to or approval of such Form 8-K. In the absence of receipt of any written
changes or approval, the Securities Administrator shall be entitled to assume
that such Form 8-K
is in
final form and the Securities Administrator
may
proceed with the execution and filing of the Form 8-K. A duly authorized officer
of the Master Servicer shall sign each Form 8-K. If a Form 8-K cannot be filed
on time or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (d) of this
Section 3.19. Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Securities Administrator will, make available on its internet
website a final executed copy of each Form 8-K filed by the Securities
Administrator. The parties to this Agreement acknowledge that the performance
by
the Master Servicer and the Securities Administrator of their respective duties
under this Section 3.19(c) related to the timely preparation, execution and
filing of Form 8-K is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Section
3.19(c). Neither the Securities Administrator nor the Master Servicer shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
8-K, where such failure results from the Securities Administrator’s inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
(d) Suspension
of Reporting; Amendments; Late Filings.
(i) On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification relating to the automatic suspension
of reporting in respect of the Trust Fund under the Exchange Act.
86
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify the Depositor either via mail, e-mail or telephone. In the
case
of Form 10-D and 10-K, the parties to this Agreement and each Servicer will
cooperate to prepare and file a Form 12b-25 and a 10-D/A and 10-K/A, as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Securities Administrator will, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event that
any
previously filed Form 8-K, 10-D or 10-K needs to be amended in connection with
any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure or
any
Form 8-K Disclosure Information or any amendment to such disclosure, the
Securities Administrator will electronically notify the Depositor and such
other
parties to the transaction as are affected by such amendment and such parties
will cooperate to prepare any necessary 8-KA, 10-D/A or 10-K/A. Any Form 15,
Form 12b-25 or any amendment to Form 8-K or 10-D shall be signed by a duly
authorized representative of the Master Servicer in charge of the master
servicing function. Any Form 10-K shall be signed by a senior officer. The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of their respective duties under
this
Section 3.19(d) related to the timely preparation, execution and filing of
Form
15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon
each such party performing its duties under this Section. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
SECTION
3.20. Additional Information.
Each
of
the parties agrees to provide to the Securities Administrator such additional
information related to such party as the Securities Administrator may reasonably
request, including evidence of the authorization of the person signing any
certification or statement, financial information and reports, and such other
information related to such party or its performance hereunder.
SECTION
3.21. Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Section 3.16 through
Section 3.22 of this Agreement is to facilitate compliance by the Securities
Administrator and the Depositor with the provisions of Regulation AB promulgated
by the Commission under the Exchange Act (17 C.F.R. §§ 229.1100 -
229.1123), as such may be amended from time to time and subject to such
clarification and interpretive advice as may be issued by the staff of the
Commission from time to time. Therefore, each of the parties agrees that (a)
the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with the reasonable requests made by the Securities Administrator
or the Depositor for delivery of such additional or different information as
the
Securities Administrator or the Depositor may determine in good faith is
necessary to comply with the provisions of Regulation AB, and (d) no amendment
of this Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB
87
SECTION
3.22. Indemnification.
Each
party required to deliver an assessment of compliance and attestation report
pursuant to Section 3.16 and including the Depositor, the Master Servicer,
the
Securities Administrator, the Trustee and any Servicing Function Participant
engaged by such party, respectively (each, an “Item
1122 Responsible Party”)
shall
indemnify and hold harmless the Securities Administrator, the Master Servicer
and the Depositor, respectively, and each of their directors, officers,
employees, agents, and affiliates from and against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such Item 1122 Responsible Party of any of its obligations hereunder
relating to its obligations as an Item 1122 Responsible Party, including
particularly its obligations to provide any assessment of compliance,
attestation report or compliance statement required under Section 3.16(a),
3.16(b) or 3.17, respectively, or any information, data or materials required
to
be included in any Exchange Act report, (b) any
material misstatement or omission in (x) any compliance certificate delivered
by
it, or by any Servicing Function Participant engaged by it, pursuant to this
Agreement, (y) any assessment or (except in the case of the Trustee, in its
capacity as Custodian) attestation delivered by or on behalf of it, or by any
Servicing Function Participant engaged by it, pursuant to this Agreement, or
(z)
any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form
8-K
Disclosure Information concerning such party and provided by it,
or (c)
the negligence, bad faith or willful misconduct of such Item 1122 Responsible
Party in connection with its performance hereunder relating to its obligations
as an Item 1122 Responsible Party. If the indemnification provided for herein
is
unavailable or insufficient to hold harmless the Master Servicer, the Securities
Administrator, the Depositor or the Seller, as the case may be, then each Item
1122 Responsible Party agrees that it shall contribute to the amount paid or
payable by the Securities Administrator, the Master Servicer and the Depositor,
as applicable, as a result of any claims, losses, damages or liabilities
incurred by the Securities Administrator, the Master Servicer or the Depositor
in such proportion as is appropriate to reflect the relative fault of the
Securities Administrator, the Master Servicer or the Depositor on the one hand
and such Item 1122 Responsible Party on the other. This indemnification shall
survive the termination of this Agreement or the termination of any party to
this Agreement.
SECTION
3.23. Amendments to Master Servicing Guide.
The
Master Servicer hereby agrees not to amend the Master Servicing Guide with
respect to the Mortgage Loans (which are Securitized Loans (as defined therein))
which amendment would (i) change the Servicer Remittance Date or date for
remittance of any servicer reports or monthly remittance advices, (ii) change
the manner in which any Servicer makes Advances, servicing advances or amounts
to compensate for Interest Shortfalls or (iii) otherwise have a material adverse
effect on the Trust Fund or the Certificateholders unless such changes are
made
pursuant to the provisions of Section 12.01 hereof.
88
SECTION
3.24. Special Foreclosure Rights.
Notwithstanding
anything in this Agreement to the contrary, for so long as the Master Servicer
has not notified MortgageIT that the majority holder of the most junior of
the
Subordinate Certificates is no longer entitled to the rights described in this
Section 3.24:
(a) MortgageIT
(or the Subservicer on its behalf) shall not commence foreclosure proceedings
with respect to a Mortgage Loan unless (i) no later than five Business Days
prior to its commencement of such foreclosure proceedings, it notifies the
majority holder of the most junior of the Subordinate Certificates of its
intention to do so, and (ii) the majority holder of the most junior of the
Subordinate Certificates, does not, within such five-Business Day period,
affirmatively object to such action.
(b) In
the
event that MortgageIT (or the Subservicer on its behalf) determines not to
proceed with foreclosure proceedings with respect to a Mortgage Loan that
becomes 60 days’ or more delinquent and MortgageIT (or the Subservicer on its
behalf) has determined that it is unable to collect payments due under such
Mortgage Loan in accordance with accepted servicing practices, MortgageIT (or
the Subservicer on its behalf) shall, prior to taking any action with respect
to
such Mortgage Loan, promptly provide the majority holder of the most junior
of
the Subordinate Certificates with notice of such determination and a description
of such other action as it intends to take with respect to such Mortgage Loan;
provided, that MortgageIT (or the Subservicer on its behalf) shall not be
permitted to proceed with any such action unless the majority holder of the
most
junior of the Subordinate Certificates, does not, within five Business Days
following such notice, affirmatively object to the Master Servicer taking such
action.
(c) If
the
majority holder of the most junior of the Subordinate Certificates timely and
affirmatively objects to an action or contemplated action of MortgageIT or
the
Subservicer, as applicable, pursuant to either (a) or (b) above, then the
majority holder of the most junior of the Subordinate Certificates shall
instruct MortgageIT, or the Subservicer on its behalf, to hire, at the majority
holder of the most junior of the Subordinate Certificates’ sole cost and
expense, three appraisal firms, selected by MortgageIT, or the Subservicer
on
its behalf, in its sole and absolute discretion from a list of appraisal firms
provided by MortgageIT, to compute the fair value of the Mortgaged Property
relating to the related Mortgage Loan utilizing the ▇▇▇▇▇▇ ▇▇▇ Form 2055
Exterior-Only Inspection Residential Appraisal Report (each such appraisal-firm
computation, a “Fair Value Price”), in each case (other than as set forth in (d)
below) no later than 30 days from the date of such majority holder of the most
junior of the Subordinate Certificates’ objection. If MortgageIT, or the
Subservicer on its behalf, shall have received three Fair Value Prices by the
end of such 30-day period, then the majority holder of the most junior of the
Subordinate Certificates shall, no later than 5 days after the expiration of
such 30-day period, purchase such Mortgage Loan and the related Mortgaged
Property at an amount equal to the sum of (i) accrued and unpaid interest on
such Mortgage Loan as of such purchase date (“Accrued Interest”) and (ii) the
highest of such three Fair Value Prices respectively determined by such
appraisal firms, and shall promptly deliver such amount to the Master Servicer
for deposit into the Certificate Account. All costs relating to the computation
of the related Fair Value Prices shall be for the account of the majority holder
of the most junior of the Subordinate Certificates and shall be paid by the
majority holder of the most junior of the Subordinate Certificates at the time
such Mortgage Loan and the related Mortgaged Property are purchased by the
majority holder of the most junior of the Subordinate Certificates.
89
(d) If
MortgageIT (or the Subservicer on its behalf) shall not have received three
Fair
Value Prices at the end of the 30-day period set forth in (c) above,
then:
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(i)
|
MortgageIT
(or the Subservicer on its behalf) shall obtain such three Fair Value
Prices no later than 15 days after the end of such 30-day
period.
|
|
(ii)
|
If
MortgageIT (or the Subservicer on its behalf) shall have only received
two
Fair Value Prices at the end of such 15-day extension period, then
MortgageIT (or the Subservicer on its behalf) will determine, in
its sole
and absolute discretion, the fair value of the Mortgaged Property
relating
to such Mortgage Loan, related Insurance Proceeds and the current
delinquency status of such Mortgage Loan (such fair value, the “Master
Servicer Fair Value Price”), and the majority holder of the most junior of
the Subordinate Certificates shall, no later than 5 days after the
expiration of such 15-day extension period, purchase (and deliver
to
MortgageIT (or the Subservicer on its behalf) the purchase price
for) such
Mortgage Loan and the related Mortgaged Property at an amount equal
to the
sum of (A) Accrued Interest thereon and (B) the higher of (1) the
highest
of such two Fair Value Prices determined by such appraisal firms
and (2)
the Servicer Fair Value Price.
|
|
(iii)
|
If
MortgageIT (or the Subservicer on its behalf) shall have received
only one
Fair Value Price at the end of such 15-day extension period, then
MortgageIT (or the Subservicer on its behalf) will determine, in
its sole
and absolute discretion, the Servicer Fair Value Price of the Mortgaged
Property related to such Mortgage Loan,
and:
|
|
(A)
|
if
such Servicer Fair Value Price is equal to or greater than the unpaid
principal balance of the related Mortgage Loan as of such date (the
“Unpaid Principal Balance”), then the majority holder of the most junior
of the Subordinate Certificates shall, no later than 5 days after
the
expiration of such 15-day extension period, purchase (and deliver
to the
Master Servicer the purchase price for) such Mortgage Loan and the
related
Mortgaged Property at an amount equal to the sum of (1) Accrued Interest
thereon and (2) such Servicer Fair Value Price;
and
|
|
(B)
|
if
such Servicer Fair Value Price is less than the related Unpaid Principal
Balance, then the majority holder of the most junior of the Subordinate
Certificates shall, no later than 5 days after the expiration of
such
15-day extension period, purchase (and deliver to MortgageIT (or
the
Subservicer on its behalf) the purchase price for) such Mortgage
Loan and
the related Mortgaged Property at an amount equal to the sum of (1)
Accrued Interest thereon and (2) the related Unpaid Principal Balance
(such sum, the “Preliminary Purchase Price”); provided, that the
provisions of clause (d)(iv) shall thereafter apply.
|
90
|
(iv)
|
Following
the payment by the majority holder of the most junior of the Subordinate
Certificates of the Preliminary Purchase Price, MortgageIT (or the
Subservicer on its behalf) shall continue to hire appraisal firms
at the
majority holder of the most junior of the Subordinate Certificates’ sole
cost and expense to compute the Fair Value Price of the Mortgaged
Property
related to such Mortgage Loan, and at such time as two such Fair
Value
Prices shall have been obtained:
|
|
(A)
|
if
such Servicer Fair Value Price is equal to or greater than the unpaid
principal balance of the related Mortgage Loan as of such date (the
“Unpaid Principal Balance”), then the majority holder of the most junior
of the Subordinate Certificates shall, no later than 5 days after
the
expiration of such 15-day extension period, purchase (and deliver
to
MortgageIT (or the Subservicer on its behalf) the purchase price
for) such
Mortgage Loan and the related Mortgaged Property at an amount equal
to the
sum of (1) Accrued Interest thereon and (2) such Servicer Fair Value
Price; and
|
|
(B)
|
if
the sum of (1) Accrued Interest on the related Mortgage Loan and
(2) the
higher of (x) the highest of such two Fair Value Prices determined
by such
appraisal firms and (y) the Servicer’s Fair Value Price of the Mortgaged
Property related to such Mortgage Loan (such sum, the “Revised Fair Value
Price”) is greater than such Preliminary Purchase Price, then MortgageIT
(or the Subservicer on its behalf) shall promptly notify the majority
holder of the most junior of the Subordinate Certificates of such
calculation, and the majority holder of the most junior of the Subordinate
Certificates shall, no later than 5 days after such notice, remit
to
MortgageIT (or the Subservicer on its behalf) for deposit into the
Certificate Account, the difference between such Revised Fair Value
Price
and such Preliminary Purchase Price;
and
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|
(C)
|
if
such Preliminary Purchase Price is greater than such Revised Fair
Value
Price, then MortgageIT (or the Subservicer on its behalf) shall promptly
notify the majority holder of the most junior of the Subordinate
Certificates of such calculation, and MortgageIT (or the Subservicer
on
its behalf) shall, no later than 5 days after such notice, remit
to the
majority holder of the most junior of the Subordinate Certificates,
from
funds then on deposit in the Certificate Account, the difference
between
such Preliminary Purchase Price and such Revised Fair Value
Price.
|
(e) Notwithstanding
anything herein to the contrary, the majority holder of the most junior of
the
Subordinate Certificates shall not be entitled to any of its rights set forth
herein with respect to a Mortgage Loan following its failure to purchase such
Mortgage Loan and the related Mortgaged Property, at the related purchase price
set forth in this Section 3.24 within the timeframe set forth in this Section
3.24 following the majority holder of the most junior of the Subordinate
Certificates’ objection to an action of MortgageIT or the Subservicer, as
applicable. Moreover, the majority holder of the most junior of the Subordinate
Certificates shall not be entitled to the foregoing rights if any of the
Subordinate Certificates are held by entities that are unaffiliated with such
majority holder of the most junior of the Subordinate Certificates.
91
(f) Any
notice, confirmation, instruction or objection pursuant to paragraphs (a),
(b),
(c) and (d) above may be delivered via facsimile or other written or electronic
communication as the parties hereto and the majority holder of the most junior
of the Subordinate Certificates may agree to from time to time.
(g) For
the
avoidance of doubt, the majority holder of the most junior of the Subordinate
Certificates’ rights set forth in this Section 3.24 are intended to provide the
majority holder of the most junior of the Subordinate Certificates, for so
long
as it has not forfeited its right under this Section 3.24 as set forth in clause
(e) above, with the unilateral right to control foreclosure decisions in respect
of delinquent and defaulted Mortgage Loans, and certain exclusive purchase
rights so as to maximize the recovery value on delinquent and defaulted Mortgage
Loans.
(h) To
the
extent that the majority holder of the most junior of the Subordinate
Certificates purchases any Mortgage Loan pursuant to this Section 3.24,
MortgageIT (or the Subservicer on its behalf) will continue to service such
Mortgage Loan in accordance with the related Servicing Agreement.
SECTION
3.25. Optional Purchases of Defaulted Mortgage Loans.
MortgageIT
will have the option at any time to purchase any of the Mortgage Loans from
the
Trustee at the Purchase Price, up to a maximum of five Mortgage Loans. In the
event that this option is exercised
as to
any five Mortgage Loans, this option will thereupon terminate. This option
is
not revocable by MortgageIT. If at any time MortgageIT makes a payment to the
Distribution Account covering the Purchase Price for such Mortgage Loan pursuant
to this Section, then the Trustee shall execute the assignment of such Mortgage
Loan at the request of MortgageIT without recourse to MortgageIT which shall
succeed to all the Trustee’s right, title and interest in and to such Mortgage
Loan, and shall transfer the Mortgage File relating thereto.
SECTION
3.26. Realization upon Troubled Mortgage Loans.
The
Master Servicer shall have the right to cause a Servicer to sell or work out
any
Mortgage Loan as to which the Master Servicer reasonably believes that default
in payment is likely, provided,
however,
that,
with respect to any such sale of a Mortgage Loan by a Servicer, the related
sale
price shall be no less than the Stated Principal Balance of such Mortgage Loan
as of the last day of the Due Period immediately preceding the date of such
sale
plus accrued interest thereon through such sale date. Any and all proceeds
from
such a sale shall be deemed to be Liquidation Proceeds hereunder and any such
Mortgage Loan which has been sold shall be deemed a Liquidated Mortgage Loan
hereunder.
92
SECTION
3.27. Closing Certificate and Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Seller, the Trustee, and Greenwich Capital Markets, Inc. an
Opinion of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Depositor, Greenwich Capital Markets, Inc., and the Seller
as to the due authorization, execution and delivery of this Agreement by the
Master Servicer and the enforceability thereof.
SECTION
3.28. Liabilities of the Master Servicer.
The
Master Servicer shall be liable in accordance herewith only to the extent of
the
obligations specifically imposed upon and undertaken by it herein.
SECTION
3.29. Merger or Consolidation of the Master Servicer.
(a) The
Master Servicer will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation,
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its duties under this
Agreement.
(b) Any
Person into which the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
3.30. Indemnification of the Trustee, the Master Servicer and the Securities
Administrator.
(a) In
addition to any indemnity required pursuant to Section 3.22 hereof, the Master
Servicer agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any loss, liability or expense (except as otherwise provided
herein with respect to expenses) (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or relating to this Agreement or the
Certificates (i) related to the Master Servicer’s failure to perform its duties
in compliance with this Agreement (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) or (ii) incurred
by
reason of the Master Servicer’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, provided, in each case, that
with
respect to any such claim or legal action (or pending or threatened claim or
legal action), an Indemnified Person shall have given the Master Servicer and
the Depositor written notice thereof promptly after such Indemnified Person
shall have with respect to such claim or legal action knowledge thereof. The
Indemnified Person’s failure to give such notice shall not affect the
Indemnified Person’s right to indemnification hereunder. This indemnity shall
survive the resignation or removal of the Trustee, the Master Servicer or the
Securities Administrator and the termination of this Agreement.
93
(b) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise indemnified by the Master Servicer as
referred to in Subsection (a) above.
(c) In
addition to any indemnity required pursuant to Section 3.22 hereof, the
Securities Administrator agrees to indemnify the Indemnified Persons (other
than
the Securities Administrator) for, and to hold them harmless against, any loss,
liability or expense (except as otherwise provided herein with respect to
expenses) (including reasonable legal fees and disbursements of counsel)
incurred on their part (i) in connection with, arising out of, or relating
to
the Securities Administrator’s failure to file any Exchange Act report which the
Securities Administrator is responsible for filing in accordance with Section
3.19, (ii) by reason of the Securities Administrator’s negligence or willful
misconduct in the performance of such obligations pursuant to Section 3.19
or
(iii) by reason of the Securities Administrator’s reckless disregard of such
obligations pursuant to Section 3.19, provided, in each case, that with respect
to any such claim or legal action (or pending or threatened claim or legal
action), an Indemnified Person shall have given the Securities Administrator
written notice thereof promptly after such Indemnified Person shall have with
respect to such claim or legal action knowledge thereof. The Indemnified
Person’s failure to give such notice shall not affect the Indemnified Person’s
right to indemnification hereunder. This indemnity shall survive the resignation
or removal of the Trustee, the Master Servicer or the Securities Administrator
and the termination of this Agreement.
SECTION
3.31. Limitations on Liability of the Master Servicer and Others;
Indemnification of Trustee and Others.
Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 3.30:
(a) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Indemnified Persons,
the
Depositor, the Trust Fund or the Certificateholders for taking any action or
for
refraining from taking any action in good faith pursuant to this Agreement,
or
for errors in judgment; provided,
however,
that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person’s willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
(c) The
Master Servicer, the Trustee (in its individual corporate capacity and as
Trustee), the Custodian (including for such purpose, the Trustee acting in
its
capacity as Custodian) and any director, officer, employee or agent of the
Master Servicer, the Trustee or the Custodian shall be indemnified by the Trust
Fund and held harmless thereby against any loss, liability or expense (except
as
otherwise provided herein with respect to expenses) (including reasonable legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or relating to, this Agreement, the
Certificates or any Servicing Agreement or the transactions contemplated hereby
or thereby (except, with respect to the Master Servicer, to the extent that
the
Master Servicer is indemnified by the Servicer thereunder), other than (i)
with
respect to the Master Servicer only, any such loss, liability or expense related
to the Master Servicer’s failure to perform its duties in compliance with this
Agreement or (ii) with respect to the Master Servicer or Custodian only, any
such loss, liability or expense incurred by reason of the Master Servicer’s or
the Custodian’s willful misfeasance, bad faith or gross negligence in the
performance of its own duties hereunder or by reason of reckless disregard
of
its own obligations and duties hereunder or under a custodial
agreement.
94
(d) The
Master Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided,
however,
the
Master Servicer may in its discretion, undertake any such action which it may
deem necessary or desirable with respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Trust Fund 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 Master Servicer shall be entitled to
be
reimbursed therefor out of the Distribution Account as provided by Section
4.03.
Nothing in this Subsection 3.31(d) shall affect the Master Servicer’s obligation
to supervise, or to take such actions as are necessary to ensure, the servicing
and administration of the Mortgage Loans pursuant to Subsection
3.01(a).
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Master Servicer
shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust Fund might incur as a result of such
course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential
liabilities.
(f) The
Master Servicer shall not be liable for any acts or omissions of any Servicer,
except as otherwise expressly provided herein.
SECTION
3.32. Master Servicer Not to Resign.
Except
as
provided in Section 3.34, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it except upon a determination that
any
such duties hereunder are no longer permissible under applicable law and such
impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Independent Opinion
of Counsel (delivered at the expense of the Master Servicer) to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 7.02 hereof.
The Trustee shall notify each Rating Agency of the resignation of the Master
Servicer.
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SECTION
3.33. Successor Master Servicer.
In
connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as the Trustee and such successor master servicer
shall agree which in no case shall exceed the Master Servicing Fee. If the
successor master servicer does not agree that the proposed compensation is
fair,
such successor master servicer shall obtain two quotations of market
compensation from third parties actively engaged in the servicing of
single-family mortgage loans;
provided,
however,
that
MortgageIT, as a Servicer of the Mortgage Loans, shall have the right, but
not
the obligation, to be appointed successor master servicer in the event that
the
Trustee, in its sole discretion, decides not to assume the duties of the Master
Servicer itself; and provided,
further,
that
each Rating Agency shall confirm in writing that any appointment of a successor
Master Servicer (other than the Trustee) will not result in a downgrade in
the
then current rating of any Class of Certificates.
SECTION
3.34. Sale and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement, with
the
written consent of the Depositor, to be given in its sole discretion, and
provided further that: (i) the purchaser or transferee accepting such assignment
and delegation (a) shall be a Person which shall be qualified to service
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) shall have a net worth of
not
less than $10,000,000 (unless otherwise approved by each Rating Agency pursuant
to clause (ii) below); (c) shall be reasonably satisfactory to the Depositor
(as
evidenced in writing signed by the Depositor); and (d) shall execute and deliver
to the Trustee an agreement, in form and substance reasonably satisfactory
to
the Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by it as master servicer under this Agreement, any custodial agreement
from and after the effective date of such agreement; (ii) each Rating Agency
shall be given prior written notice of the identity of the proposed successor
to
the Master Servicer and each Rating Agency’s ratings of the Certificates in
effect immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; and (iii) the Master Servicer assigning and selling
the master servicing shall deliver to the Trustee an Officer’s Certificate and
an Independent Opinion of Counsel, (delivered at the Master Servicer’s expense)
each stating that all conditions precedent to such action under this Agreement
have been completed and such action is permitted by and complies with the terms
of this Agreement. No such assignment or delegation shall affect any liability
of the Master Servicer arising prior to the effective date thereof.
SECTION
3.35. Reporting Requirements of the Commission.
To
the
extent that, following the Closing Date, the content of Forms 8-K, 10-D, 10-K,
15 or other Forms required by the Exchange Act and the Rules and Regulations
of
the Commission and the time by which such Forms are required to be filed,
differs from the provisions of this Agreement, the Master Servicer and the
Securities Administrator hereby agree that each shall reasonably cooperate
to
amend the provisions of this Agreement (in accordance with Section 12.01) in
order to comply with such amended reporting requirements and such amendment
of
this Agreement. Notwithstanding the foregoing, neither the Master Servicer
nor
the Securities Administrator shall be obligated to enter into any amendment
pursuant to this Section that adversely affects its obligations or immunities
under this Agreement.
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ARTICLE
IV
ACCOUNTS
SECTION
4.01. Servicing Accounts.
(a) The
Master Servicer shall enforce the obligation of each Servicer to establish
and
maintain one or more custodial accounts (the “Servicing
Accounts”)
in
accordance with the applicable Servicing Agreement, with records to be kept
with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts
shall be deposited within 48 hours (or as of such other time specified in the
related Servicing Agreement) of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received
by a
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, Recoveries and advances made from the Servicer’s own funds (less, in
the case of each Servicer, the applicable servicing compensation, in whatever
form and amounts as permitted by the applicable Servicing Agreement) and all
other amounts to be deposited in each such Servicing Account. The Servicer
is
hereby authorized to make withdrawals from and deposits to the related Servicing
Account for purposes required or permitted by this Agreement and the applicable
Servicing Agreement. For the purposes of this Agreement, Servicing Accounts
shall also include such other accounts as the Servicer maintains for the escrow
of certain payments, such as taxes and insurance, with respect to certain
Mortgaged Properties. Each Servicing Agreement sets forth the criteria for
the
segregation, maintenance and investment of each related Servicing Account,
the
contents of which are acceptable to the parties hereto as of the date hereof
and
changes to which shall not be made unless such changes are made in accordance
with the provisions of Section 12.01 hereof.
(b) [Reserved];
(c) To
the
extent provided in the related Servicing Agreement and subject to this Article
IV, on or before each Servicer Remittance Date, each Servicer shall withdraw
or
shall cause to be withdrawn from the related Servicing Accounts and shall
immediately deposit or cause to be deposited in the Distribution Account amounts
representing the following collections and payments (other than with respect
to
principal of or interest on the Mortgage Loans due on or before the Cut-off
Date) with respect to each of the Mortgage Loans it is servicing:
(i) Monthly
Payments on the Mortgage Loans received or any related portion thereof advanced
by the Servicers pursuant to the Servicing Agreements which were due on or
before the related Due Date but net of the amount thereof comprising the
Servicing Fees;
(ii) Principal
Prepayments in full and any Liquidation Proceeds received by the Servicers
with
respect to such Mortgage Loans in the related Prepayment Period, with interest
to the date of prepayment or liquidation, net of the amount thereof comprising
the Servicing Fees and any Recoveries received in the related Prepayment
Period;
97
(iii) Principal
Prepayments in part received by the Servicers for such Mortgage Loans in the
related Prepayment Period;
(iv) Prepayment
Penalty Amounts, if any; and
(v) any
amount to be used as a delinquency advance or to pay any Interest Shortfalls,
in
each case, as required to be paid under the related Servicing Agreement.
(d) Withdrawals
may be made from a Servicing Account only to make remittances as provided in
Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or a Servicer
for Advances which have been recovered by subsequent collection from the related
Mortgagor; to remove amounts deposited in error; to remove fees, charges or
other such amounts deposited on a temporary basis; or to clear and terminate
the
account at the termination of this Agreement in accordance with Section 10.01.
As provided in Sections 4.01(c) and 4.02(b), certain amounts otherwise due
to
the Servicers may be retained by them and need not be deposited in the
Distribution Account.
SECTION
4.02. Distribution Account.
(a) The
Securities Administrator shall establish and maintain in the name of the
Trustee, for the benefit of the Trust Fund and the Certificateholders, the
Distribution Account as a segregated account or accounts, each of which shall
be
an Eligible Account. The Distribution Account shall constitute a trust account
of the Trust Fund segregated on the books of the Securities Administrator and
held by the Securities Administrator in trust in its Corporate Trust Office,
and
the Distribution Account and the funds deposited therein shall not be subject
to, and shall be protected from, all claims, liens, and encumbrances of any
creditors or depositors of the Trustee, the Securities Administrator or the
Master Servicer (whether made directly, or indirectly through a liquidator
or
receiver of the Trustee, the Securities Administrator or the Master Servicer).
The amount at any time credited to the Distribution Account shall be (i) fully
insured by the FDIC to the maximum coverage provided thereby or (ii) invested
by
the Securities Administrator, in Permitted Investments, in accordance with
Section 4.02(c). All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the immediately
succeeding Distribution Date. With respect to the Distribution Account and
the
funds deposited therein, the Securities Administrator shall take such action
as
may be necessary to ensure that the Trust Fund and the Certificateholders shall
be entitled to the priorities afforded to such a trust account (in addition
to a
claim against the estate of the Securities Administrator or the Trustee) as
provided by 12 U.S.C. § 92a(e), and applicable regulations pursuant thereto, if
applicable, or any applicable comparable state statute applicable to state
chartered banking corporations, if applicable. The Securities Administrator,
Trustee or their affiliates are permitted to receive additional compensation
that could be deemed to be in the their economic self-interest for (i) serving
as investment adviser, administrator, servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. The Master Servicer
and
the Securities Administrator will deposit in the Distribution Account as
identified by the Master Servicer or the Securities Administrator and as
received by the Master Servicer or the Securities Administrator, the following
amounts:
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(i) any
amounts withdrawn from a Servicing Account pursuant to Section
4.01(c);
(ii) any
Advance and any Compensating Interest Payments required to be made by the Master
Servicer to the extent required but not made by a Servicer;
(iii) any
Insurance Proceeds, Liquidation Proceeds or Recoveries received by or on behalf
of the Master Servicer or which were not deposited in a Servicing Account;
(iv) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller under
this Agreement, any Substitution Adjustments pursuant to Section 2.03 of this
Agreement, the Purchase Price with respect to any Mortgage Loans purchased
by
the Seller pursuant to Section 3.25, and all proceeds of any Mortgage Loans
or
property acquired with respect thereto repurchased by the Seller pursuant to
Section 10.01;
(v) any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(vi) any
other
amounts received by or on behalf of the Master Servicer or the Securities
Administrator and required to be deposited in the Distribution Account pursuant
to this Agreement, including the applicable Class P Contribution.
(b) All
amounts deposited to the Distribution Account shall be held by the Securities
Administrator in the name of the Trustee in trust for the benefit of the Trust
Fund and Certificateholders in accordance with the terms and provisions of
this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (i) late payment charges or
assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges (including all Prepayment
Penalty Amounts) and (ii) the items enumerated in Subsections 4.03(a)(i), (ii),
(iii), (iv), (vi), (vii), (ix) and (x) with respect to the Securities
Administrator, need not be credited by the Master Servicer or the related
Servicer to the Distribution Account. In the event that the Master Servicer
shall deposit or cause to be deposited to the Distribution Account any amount
not required to be credited thereto, the Securities Administrator, upon receipt
of a written request therefor signed by a Servicing Officer of the Master
Servicer, shall promptly transfer such amount to the Master Servicer, any
provision herein to the contrary notwithstanding.
(c) The
amount
at
any time credited to the Distribution Account shall be invested, in the name
of
the Trustee, or its nominee, for the benefit of the Certificateholders, in
Permitted Investments as follows. All Permitted Investments and investment
income with respect to the investment of funds in the Distribution Account
shall
be for the benefit of the Master Servicer. All Permitted Investments shall
mature or be subject to redemption or withdrawal on or before, and shall be
held
until, the Business Day prior to the next succeeding Distribution Date. Any
and
all investment earnings from such Permitted Investments shall be paid to
the
Master Servicer,
and the
risk of loss of moneys resulting from such investments shall be borne by and
be
the risk of the
Master Servicer.
The
Master Servicer
shall
deposit the amount of any such loss in the Distribution Account within two
Business Days of receipt of notification of such loss but not later than the
next succeeding Distribution Date.
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SECTION
4.03. Permitted Withdrawals and Transfers from the Distribution
Account.
(a) The
Master Servicer will, from time to time on demand of a Servicer, the Securities
Administrator, or for its own account as set forth below, make or cause to
be
made such withdrawals or transfers from the Distribution Account, in the case
of
a demand by a Servicer, as the applicable Servicer has designated for such
transfer or withdrawal pursuant to the applicable Servicing Agreement, or in
the
case of a demand by the Securities Administrator as the Securities Administrator
has demanded pursuant hereto, or as the Master Servicer has determined to be
appropriate in accordance herewith, for the following purposes:
(i) to
reimburse the Master Servicer or any Servicer for any Advance of its own funds
or of such Servicer’s own funds, the right of the Master Servicer or a Servicer
to reimbursement pursuant to this subclause (i) being limited to amounts
received on a particular Mortgage Loan (including, for this purpose, the
Purchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late payments or recoveries of the principal of or interest on such
Mortgage Loan respecting which such Advance was made;
(ii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the Master Servicer or such Servicer in good faith in connection with the
restoration of the related Mortgaged Property which was damaged by an Uninsured
Cause or in connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds relating
to a particular Mortgage Loan for insured expenses incurred with respect to
such
Mortgage Loan and to reimburse the Master Servicer or such Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan;
(iv) to
pay
the Master Servicer or any Servicer, as appropriate, from Liquidation Proceeds
or Insurance Proceeds received in connection with the liquidation of any
Mortgage Loan, the amount which it or such Servicer would have been entitled
to
receive under subclause (viii) of this Subsection 4.03(a) as servicing
compensation on account of each defaulted scheduled payment on such Mortgage
Loan if paid in a timely manner by the related Mortgagor;
(v) to
pay
the Master Servicer or any Servicer from the Purchase Price for any Mortgage
Loan, the amount which it or such Servicer would have been entitled to receive
under subclause (viii) of this Subsection (a) as servicing
compensation;
(vi) to
reimburse the Master Servicer or any Servicer for servicing related advances
of
funds, the right to reimbursement pursuant to this subclause being limited
to
amounts received on the related Mortgage Loan (including, for this purpose,
the
Purchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late recoveries of the payments for which such servicing advances
were
made;
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(vii) to
reimburse the Master Servicer or any Servicer for any Advance or advance, after
a Realized Loss has been allocated with respect to the related Mortgage Loan
if
the Advance or advance has not been reimbursed pursuant to clauses (i) and
(vi);
(viii) to
pay
the Master Servicer its monthly Master Servicing Fee and any investment income
and other additional servicing compensation payable pursuant to Section
3.14;
(ix) to
reimburse the Master Servicer or the Securities Administrator for any expenses
recoverable by the Master Servicer or the Securities Administrator pursuant
to
Sections 3.03 and 3.31;
(x) to
reimburse or pay any Servicer any such amounts as are due thereto under the
applicable Servicing Agreement and have not been retained by or paid to the
Servicer, to the extent provided in the related Servicing
Agreement;
(xi) to
reimburse the Trustee and the Securities Administrator for expenses, costs
and
liabilities incurred by or reimbursable to it from funds of the Trust Fund
pursuant to Sections 3.30, 3.31 or 8.05 (including those related to the
Custodian, to the extent not paid by MortgageIT), and to reimburse the Trustee
for any fees, costs and expenses costs incurred by or reimbursable to it
pursuant to Section 2.03(a), 7.01(b), 8.02, 8.05 or 8.07, to the extent not
otherwise reimbursed to it;
(xii) to
pay to
the Master Servicer all investment earnings on amounts on deposit in the
Distribution Account to what it is entitled under Section 4.02(k);
(xiii) to
remove
amounts deposited in error; and
(xiv) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
(b) In
addition, on or before the Business Day immediately preceding each Distribution
Date, the Master Servicer shall deposit in the Distribution Account (or remit
to
the Securities Administrator for deposit therein) any Advances or Compensating
Interest Payments, to the extent required but not made by the related Servicer
and required to be made by the Master Servicer with respect to the Mortgage
Loans.
(c) The
Securities Administrator or the Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
accounting for any payments or reimbursements from the Distribution Account
pursuant to subclauses (i) through (vii), inclusive, (ix) and (x) or with
respect to any such amounts which would have been covered by such subclauses
had
the amounts not been retained by the Master Servicer without being deposited
in
the Distribution Account under Section 4.02(b).
101
(d) In
order
to comply with its duties under the USA PATRIOT Act of 2001, the Securities
Administrator shall obtain and verify certain information and documentation
from
the other parties hereto, including, but not limited to, each such party's
name,
address and other identifying information.
(e) On
each
Distribution Date, the Securities Administrator shall distribute the aggregate
Available Funds to the Holders of the Certificates in accordance with Section
5.01.
SECTION
4.04. Yield Maintenance Account.
On
or
prior to the Closing Date, the Securities Administrator, on behalf of the
Trustee, shall cause to be established and maintained the Yield Maintenance
Account, into which Yield Maintenance Payments received by the Securities
Administrator pursuant to the Yield Maintenance Agreements shall be deposited
for the benefit of the Class 1-A1, Class 1-A2, Class 1-B1, Class 1-B2, Class
2-A1A, Class 2-A1B and Class 2-A1C Certificates. Amounts on deposit in the
Yield
Maintenance Account shall not be invested and shall not be held in an
interest-bearing account.
The
Securities Administrator shall deposit all amounts received from the Yield
Maintenance Provider under the Yield Maintenance Agreements into the Yield
Maintenance Account immediately upon receipt. On each Distribution Date, the
Securities Administrator, as Paying Agent for the Trustee, shall withdraw from
the Yield Maintenance Account (i) the Yield Maintenance Distributable Amount
with respect to the Yield Maintenance Agreement related to the Class 1-A1
Certificates then on deposit therein and distribute such amounts in respect
of
any Basis Risk Shortfalls for such Class on such Distribution Date and (ii)
any
amounts remaining on deposit therein after distributions made pursuant to (i)
above shall be distributed amounts to the Class 1-X Certificates.
On
each
Distribution Date, the Securities Administrator, as Paying Agent for the
Trustee, shall withdraw from the Yield Maintenance Account (i) the Yield
Maintenance Distributable Amount with respect to the Yield Maintenance Agreement
related to the Class 1-A2 Certificates then on deposit therein and distribute
such amounts in respect of any Basis Risk Shortfalls for such Class on such
Distribution Date and (ii) any amounts remaining on deposit therein after
distributions made pursuant to (i) above shall be distributed amounts to the
Class 1-X Certificates.
On
each
Distribution Date, the Securities Administrator, as Paying Agent for the
Trustee, shall withdraw from the Yield Maintenance Account (i) the Yield
Maintenance Distributable Amount with respect to the Yield Maintenance Agreement
related to the Class 1-B1 Certificates then on deposit therein and distribute
such amounts in respect of any Basis Risk Shortfalls for such Class on such
Distribution Date and (ii) any amounts remaining on deposit therein after
distributions made pursuant to (i) above shall be distributed amounts to the
Class 1-X Certificates.
On
each
Distribution Date, the Securities Administrator, as Paying Agent for the
Trustee, shall withdraw from the Yield Maintenance Account (i) the Yield
Maintenance Distributable Amount with respect to the Yield Maintenance Agreement
related to the Class 1-B2 Certificates then on deposit therein and distribute
such amounts in respect of any Basis Risk Shortfalls for such Class on such
Distribution Date and (ii) any amounts remaining on deposit therein after
distributions made pursuant to (i) above shall be distributed amounts to the
Class 1-X Certificates.
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On
each
Distribution Date, the Securities Administrator, as Paying Agent for the
Trustee, shall withdraw from the Yield Maintenance Account (i) the Yield
Maintenance Distributable Amount with respect to the Yield Maintenance Agreement
related to the Class 2-A1A, Class 2-A1B and Class 2-A1C Certificates then on
deposit therein and distribute such amounts in respect of any Basis Risk
Shortfalls for such Classes on such Distribution Date, pro
rata,
based
on amounts due and (ii) any amounts remaining on deposit therein after
distributions made pursuant to (i) above shall be distributed amounts to the
Class 2-X Certificates.
If
the
Seller or its affiliate is the Holder of a Class 1-A1, Class 1-A2, Class 1-B1,
Class 1-B2, Class 2-A1A, Class 2-A1B or Class 2-A1C Certificate, the Seller
or
its affiliate shall remit to the Securities Administrator the portion of Yield
Maintenance Distributable Amounts received by the Holder of such Certificate
on
any Distribution Date, and the Securities Administrator will remit such amounts
to the Yield Maintenance Provider. For purposes of this Agreement, the
Securities Administrator shall have no duty to confirm that each amount received
by it from the Seller or its affiliate with respect to the preceding sentence
is
the correct amount.
To
the
extent that it constitutes a “reserve fund” for purposes of the REMIC
Provisions, the Yield Maintenance Account established hereunder shall be an
“outside reserve fund” as defined in Treasury Regulation 1.860G-2(h), and in
that regard (i) such fund shall be an outside reserve fund and not an asset
of
any REMIC, (ii) such fund shall be owned for federal tax purposes by the Holders
of the Class 1-X (the portion attributable to amounts received under Yield
Maintenance Agreements related to Group 1 Certificates) and Class 2-X
Certificates (the portion attributable to amounts received under Yield
Maintenance Agreements related to Group 2 Certificates), and the Holders of
the
Class 1-X and Class 2-X Certificates shall report all amounts of income,
reduction, gain or loss accruing therefrom and (iii) amounts transferred by
the
REMIC to the fund shall be treated as distributed by the REMIC to the Holders
of
the Class 1-X and Class 2-X Certificates.
The
Securities Administrator shall terminate the Yield Maintenance Agreements upon
the occurrence of an event of default or termination event under the related
Yield Maintenance Agreements of which a Responsible Officer of the Securities
Administrator has actual knowledge. In the event that a Yield Maintenance
Agreement is canceled or otherwise terminated for any reason (other than the
exhaustion of the interest rate protection provided thereby), the Securities
Administrator shall, at the direction of Certificateholders evidencing Voting
Rights not less than 50% of the Certificates related to such Yield Maintenance
Agreement, and to the extent a replacement contract is available (from a
counterparty designated by the Depositor and acceptable to Certificateholders
evidencing Voting Rights not less than 50% of the related Certificates), execute
a replacement contract comparable to such Yield Maintenance Agreement providing
interest rate protection which is equal to the then-existing protection provided
by such Yield Maintenance Agreement as certified to the Securities Administrator
by the Depositor; provided,
however,
that
the cost of any such replacement contract providing the same interest rate
protection may be reduced to a level such that the cost of such replacement
contract shall not exceed the amount of any early termination payment received
from the Yield Maintenance Provider.
103
On
any
Distribution Date on or prior to the Distribution Date in January 2011, if
the
Class Principal Balance of any of the Class 1-A1, Class 1-A2, Class 1-B1 or
Class 1-B2 Certificates related to a Yield Maintenance Agreement equals zero
(but not including the Distribution Date on which such Class Principal Balance
is reduced to zero), all amounts received by the Securities Administrator with
respect to the related Yield Maintenance Agreement shall be distributed directly
to the Class 1-X Certificateholders. On the Distribution Date in January 2011
or
upon the termination of the Trust, the related Yield Maintenance Agreements
shall be terminated.
On
any
Distribution Date on or prior to the Distribution Date in June 2014, if the
aggregate Class Principal Balance of the Class 2-A1A, Class 2-A1B or Class
2-A1C
Certificates equals zero (but not including the Distribution Date on which
such
aggregate Class Principal Balance is reduced to zero), all amounts received
by
the Securities Administrator with respect to the related Yield Maintenance
Agreement shall be distributed directly to the Class 2-X Certificateholders.
On
the Distribution Date in June 2014 or upon the termination of the Trust, the
related Yield Maintenance Agreement shall be terminated.
SECTION
4.05. [Reserved].
ARTICLE
V
FLOW
OF
FUNDS
SECTION
5.01. Distributions.
(a) On
each
Distribution Date and after making any withdrawals from the Distribution Account
pursuant to Section 4.03(a), the Securities Administrator shall withdraw funds
on deposit in the Distribution Account to the extent of Available Funds for
Loan
Subgroup 1-A1, Loan Subgroup 1-A2 and Loan Group 2 for such Distribution Date
and, based on the Distribution Date Statement, make the following disbursements
and transfers as set forth below:
(i) (A)
concurrently,
(1) the
Available Funds for Loan Subgroup 1-A1 shall be distributed on each Distribution
Date (other than on the Distribution Date following the optional purchase of
the
Mortgage Loans by the Servicer) in the following order of priority:
(x) to
the
Class A-R, Class 1-A1 and Class 1-X Certificates, the related Interest
Distributable Amounts for that date, pro
rata
(based
on the Interest Distributable Amount to which each such Class is entitled);
provided,
however,
that on
each Distribution Date, the related Interest Distributable Amount for the Class
1-X Certificates up to the 1-X Required Reserve Fund Deposit shall be deposited
in the Group 1 Basis Risk Reserve Fund and shall not be distributed to the
Class
1-X Certificates; and
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(y)
an
amount
equal to the Senior Principal Distribution Amount for Loan Subgroup 1-A1 for
such Distribution Date, as follows:
first,
concurrently to the Class A-R and Class 1-P Certificates, until the Class
Principal Balance of each such Class is reduced to zero; and
second,
to the
Class 1-A1 Certificates, until the Class Principal Balance of such Class is
reduced to zero;
(2) the
Available Funds for Loan Subgroup 1-A2 shall be distributed on each Distribution
Date (other than on the Distribution Date following the optional purchase of
the
Mortgage Loans by the Servicer) in the following order of priority:
(x) to
the
Class 1-A2 and Class 1-X Certificates, the related Interest Distributable
Amounts for that date, pro
rata
(based
on the Interest Distributable Amount to which each such Class is entitled);
provided,
however,
that on
each Distribution Date, the related Interest Distributable Amount for the Class
1-X Certificates up to the 1-X Required Reserve Fund Deposit shall be deposited
in the Group 1 Basis Risk Reserve Fund and shall not be distributed to the
Class
1-X Certificates; and
(y)
an
amount
equal to the Senior Principal Distribution Amount for Loan Subgroup 1-A2 for
such Distribution Date, to the Holders of the Class 1-A2 Certificates, until
the
Class Principal Balance of such Class is reduced to zero;
On
any
Distribution Date, if the amount to be distributed with respect to the Class
1-X
Certificates from a Loan Subgroup in accordance with the provisions of Sections
5.01(a)(i)(A)(1)(x) or 5.01(a)(i)(A)(2)(x) above is less than an amount equal
to
the Class 1-X Certificates’ Interest Distributable Amount (calculated for this
purpose by using the portion of its Class Notional Balance attributable to
such
Loan Subgroup), then Available Funds from the other Loan Subgroup remaining
after making the distributions in either Section 5.01(a)(i)(A)(1)(x) or
5.01(a)(i)(A)(2)(x) above, as applicable, to the Certificates related to such
other Loan Subgroup, shall be distributed to the Class 1-X Certificates to
cover
that shortfall.
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(B) first,
from
the Yield Maintenance Account, to the Class 1-A1 and Class 1-A2 Certificates,
any related Yield Maintenance Distributable Amount for such Distribution Date
in
the order and priority set forth in Section 4.04 above and second,
from
(a)
the Group 1 Basis Risk Reserve Fund, to the Class 1-A1 and Class 1-A1
Certificates, pro
rata,
based
on amounts due any related Basis Risk Shortfall for each such Class and such
Distribution Date remaining after giving effect to the distributions specified
in clause first
above in
the order and priority set forth in Section 5.07 below;
(C) the
Available Funds for Loan Subgroup 1-A1 and Loan Subgroup 1-A2 remaining after
giving effect to the distributions specified in subsections (i)(A) and (B)
above
shall be distributed to the Certificateholders in the following order of
priority:
(1) to
the
Class 1-B1 Certificates, the related Interest Distributable Amount for that
date;
(2) to
the
Class 1-B1 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(3) to
the
Class 1-B2 Certificates, the related Interest Distributable Amount for that
date;
(4) to
the
Class 1-B2 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(5) to
the
Class 1-B3 Certificates, the related Interest Distributable Amount for that
date;
(6) to
the
Class 1-B3 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(7) to
the
Class 1-B4 Certificates, the related Interest Distributable Amount for that
date;
(8) to
the
Class 1-B4 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(9) to
the
Class 1-B5 Certificates, the related Interest Distributable Amount for that
date;
(10) to
the
Class 1-B5 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
106
(11) to
the
Class 1-B6 Certificates, the related Interest Distributable Amount for that
date; and
(12) to
the
Class 1-B6 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(D) first,
from
the Yield Maintenance Account, to the Class 1-B1 and Class 1-B2 Certificates,
any related Yield Maintenance Distributable Amount for such Distribution Date
in
the order and priority set forth in Section 4.04 above and second,
from
(a)
the Group 1 Basis Risk Reserve Fund, to the Class 1-B1 and Class 1-B2
Certificates, pro
rata,
based
on amounts due any related Basis Risk Shortfall for each such Class and such
Distribution Date remaining after giving effect to the distributions specified
in clause first
above in
the order and priority set forth in Section 5.07 below;
(E) the
Available Funds for each Loan Subgroup remaining after giving effect to the
distributions specified in subsections (A), (B), (C) and (D) above will be
distributed to the Class A-R Certificate.
On
the
Distribution Date following the optional purchase of the Mortgage Loans by
the
Servicer, Available Funds for Loan Subgroup 1-A1 and Loan Subgroup 1-A2 shall
be
applied in the amounts and in the order specified above, except that no amounts
will be distributed pursuant to Sections 5.01(a)(i)(B) and (a)(i)(D) above
and
the portion of Available Funds remaining after the distribution pursuant to
Sections 5.01(a)(i)(A) will be applied in the order specified in clause (C)
of
Section 5.01(a)(i).
(ii) (A)
the
Available Funds for Loan Group 2 and, in respect of clause (v) below, amounts
on
deposit in the Yield Maintenance Account, shall be distributed on each
Distribution Date (other than on the Distribution Date following the optional
purchase of the Mortgage Loans by the Servicer) in the following order of
priority:
(1) to
the
Class 2-A1A, Class 2-A1B, Class 2-A1C, Class 2-X and Class 2-X-B Certificates,
the related Interest Distributable Amounts for that date, pro
rata
(based
on the Interest Distributable Amount to which each such Class is entitled);
provided,
however,
that on
each Distribution Date, the related Interest Distributable Amount for the Class
2-X Certificates up to the 2-X Required Reserve Fund Deposit shall be deposited
in the Group 2-A Basis Risk Reserve Fund and shall not be distributed to the
Class 2-X Certificates and the related Interest Distributable Amount for the
Class 2-X-B Certificates up to the 2-X-B Required Reserve Fund Deposit shall
be
deposited in the Group 2-B Basis Risk Reserve Fund and shall not be distributed
to the Class 2-X-B Certificates; and
(2) an
amount
equal to the Senior Principal Distribution Amount for Loan Group 2 for that
date, as follows:
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first,
to the
Class 2-P Certificate until its Class Principal Balance is reduced to
zero;
second,
to the
Class 2-A1A, Class 2-A1B and Class 2-A1C Certificates, pro
rata
based on
their respective Class Principal Balances, until the Class Principal Balances
of
such Classes are reduced to zero; and
third,
to the
Class 2-PO Certificates and Class 2-PO-B Certificates, pro
rata based
on
their respective Class Principal Balances, until the Class Principal Balances
of
such Classes are reduced to zero;
(B) first,
from
the Yield Maintenance Account, to the Class 2-A1A, Class 2-A1B and Class 2-A1C
Certificates, any related Yield Maintenance Distributable Amount for such
Distribution Date in the order and priority set forth in Section 4.04 above,
second,
from
the
Group 2-A Basis Risk Reserve Fund, to the Class 2-A1A, Class 2-A1B and Class
2-A1C Certificates, pro
rata,
based
on amounts due any related Basis Risk Shortfall for each such Class and such
Distribution Date remaining after giving effect to the distributions specified
in clause first
above in
the order and priority set forth in Section 5.07 below and third,
from
the Group 2-B Basis Risk Reserve Fund, to, sequentially, the Class 1-B1, Class
1-B2, Class 1-B3, Class 1-B4, Class 1-B5 and Class 1-B6 Certificates, in that
order, based on amounts due any related Basis Risk Shortfall for each such
Class
and such Distribution Date;
(C) the
Available Funds for Loan Group 2 remaining after giving effect to the
distributions specified in subsections (ii)(A) and (B) above shall be
distributed to the Certificateholders in the following order of
priority:
(1) to
the
Class 2-B1 Certificates, the related Interest Distributable Amount for that
date;
(2) to
the
Class 2-B1 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(3) to
the
Class 2-B2 Certificates, the related Interest Distributable Amount for that
date;
(4) to
the
Class 2-B2 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(5) to
the
Class 2-B3 Certificates, the related Interest Distributable Amount for that
date;
108
(6) to
the
Class 2-B3 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(7) to
the
Class 2-B4 Certificates, the related Interest Distributable Amount for that
date;
(8) to
the
Class 2-B4 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(9) to
the
Class 2-B5 Certificates, the related Interest Distributable Amount for that
date;
(10) to
the
Class 2-B5 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(11) to
the
Class 2-B6 Certificates, the related Interest Distributable Amount for that
date; and
(12) to
the
Class 2-B6 Certificates, an amount allocable to principal equal to their Pro
Rata Share for such Distribution Date, until the Class Principal Balance of
such
Class is reduced to zero;
(D) the
Available Funds for each Loan Subgroup remaining after giving effect to the
distributions specified in subsections (A), (B) and (C) above will be
distributed to the Class A-R Certificate.
On
the
Distribution Date following the optional purchase of the Mortgage Loans by
the
Servicer, Available Funds for Loan Group 2 shall be applied in the amounts
and
in the order specified above, except that no amounts will be distributed
pursuant to Sections 5.01(a)(ii)(B) and the portion of Available Funds remaining
after the distribution pursuant to Sections 5.01(a)(i)(A) will be applied in
the
order specified in clause (C) of Section 5.01(a)(ii).
(b) Amounts
to be paid to the Holders of a Class of Certificates shall be payable with
respect to all Certificates of that Class, pro
rata,
based
on the Certificate Principal Balance or Certificate Notional Balance, as
applicable, of each Certificate of that Class.
(c) On
each
Distribution Date, (i) the Monthly Interest Distributable Amounts for the
Classes of Group 1 Senior Certificates and Group 1 Subordinate Certificates
on
such Distribution Date shall be reduced proportionately, based on (A) in the
case of the Group 1 Senior Certificates, the Monthly Interest Distributable
Amount to which they would otherwise be entitled and (B) in the case of the
Group 1 Subordinate Certificates, interest accrued at the related Pass-Through
Rate on the related Apportioned Principal Balance of each such Class of Group
1
Subordinate Certificates, by Net Interest Shortfalls with respect to Loan Group
1 and (ii) the Monthly Interest Distributable Amounts for the Classes of Group
2
Senior Certificates (other than the Class 2-PO and Class 2-PO-B Certificates)
and Group 2 Subordinate Certificates on such Distribution Date shall be reduced
proportionately, based on (A) in the case of the Group 2 Senior Certificates
(other than the Class 2-PO and Class 2-PO-B Certificates), the Monthly Interest
Distributable Amount to which they would otherwise be entitled and (B) in the
case of the Group 2 Subordinate Certificates, interest accrued at the related
Pass-Through Rate on the related Class Principal Balance of each such Class
of
Group 2 Subordinate Certificates, by Net Interest Shortfalls with respect to
Loan Group 2.
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(d) Notwithstanding
the priority and allocation set forth in Sections 5.01(a)(i)(C) and
5.01(a)(ii)(C) above, if with respect to any Class of Subordinate Certificates
of either Loan Group on any Distribution Date, the sum of the related Class
Subordination Percentages of such Class and of all other Classes of Subordinate
Certificates in the related Loan Group which have a higher numerical Class
designation than such Class (the “Applicable
Credit Support Percentage”)
is
less than the Original Applicable Credit Support Percentage for such Class,
no
distribution of Principal Prepayments will be made to any such Classes (the
“Restricted
Classes”)
and
the amount of such Principal Prepayment otherwise distributable to the
Restricted Classes shall be distributed to any Classes of Subordinate
Certificates in the related Loan Group having lower numerical Class designations
than such Class, pro
rata,
based
on the Class Principal Balances of the respective Classes immediately prior
to
such Distribution Date and shall be distributed in the sequential order provided
in Section 5.01(a)(i)(C) or Section 5.01(a)(ii)(C) above, as
applicable.
(e) i) Notwithstanding
the priority and allocation set forth in Section 5.01(a)(i)(C) above, with
respect to Loan Group 1, on each Distribution Date prior to the Senior Credit
Support Depletion Date but after the date on which the aggregate Class Principal
Balance of each Class of the Senior Certificates related to either Loan Subgroup
have been reduced to zero, 100% of the Principal Prepayments on the Mortgage
Loans in that Loan Subgroup otherwise distributable on each Class of Subordinate
Certificates pursuant to Section 5.01(a)(i)(C), in reverse order of priority,
shall be distributed as principal to the Senior Certificates related to the
Loan
Subgroup remaining outstanding in the amounts provided in the next succeeding
sentence, provided that on such Distribution Date either clause (i) or (ii)
in
the definition of the Two Times Test has not been met. Such amount shall be
allocated among the other Loan Subgroup, pro
rata
based on
aggregate Class Principal Balance of the related Senior Certificates, and paid
to the Senior Certificates in such Loan Subgroup in the same priority as such
Certificates would receive other distributions of principal pursuant to Section
5.01(a)(i).
(ii) On
any
Distribution Date on which the Group 1 Senior Certificates related to a Loan
Subgroup constitute an Undercollateralized Subgroup, all amounts otherwise
distributable as Available Funds on the Group 1 Subordinate Certificates, in
reverse order of priority (or, following the Senior Credit Support Depletion
Date for Loan Group 1, such other amounts described in the immediately following
sentence), will be distributed as principal to the Senior Certificates of such
Undercollateralized Subgroup pursuant to Section 5.01(a)(i), first,
up to
the sum of the Accrued Interest Amount and the Principal Deficiency Amount
for
the related Undercollateralized Subgroup (such distribution, an “Undercollateralization
Distribution”)
and
second,
to pay
to the Group 1 Subordinate Certificates and the Class A-R Certificate in the
same order and priority as provided in Section 5.01(a)(i)(C). In the event
that
the Group 1 Senior Certificates related to a Loan Subgroup constitute an
Undercollateralized Subgroup on any Distribution Date following the Senior
Credit Support Depletion Date for Loan Group 1, Undercollateralization
Distributions will be made from any Available Funds for a Loan Subgroup not
related to an Undercollateralized Subgroup remaining after all required amounts
have been distributed to the related Class of Senior Certificates.
Undercollateralization Distributions will be applied first
to pay
accrued but unpaid interest, if any, and second
to pay
principal in the same priority and allocation provided in Section
5.01(a)(i).
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(f) On
each
Distribution Date, the Paying Agent shall distribute to the Holder of (i) the
Class 1-P Certificates, the Class 1-P Distributable Amount and (ii) the Class
2-P Certificates, the Class 2-P Distributable Amount.
(g) Distributions
on Physical Certificates.
The
Paying Agent shall make distributions in respect of a Distribution Date to
each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 hereof respecting the final distribution), in the case of
Certificateholders of the Physical Certificates, by check or money order mailed
to such Certificateholder at the address appearing in the Certificate Register,
or by wire transfer. Distributions among Certificateholders of a Class shall
be
made in proportion to the Percentage Interests evidenced by the Certificates
of
that Class held by such Certificateholders.
(h) Distributions
on Book-Entry Certificates.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit the amount of such distribution to the accounts
of its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Paying Agent, the Depositor or the Seller
shall have any responsibility therefor.
SECTION
5.02. Allocation of Net Deferred Interest.
For
any
Distribution Date, the Net Deferred Interest on the Group 2 Mortgage Loans
will
be allocated among the Classes of Group 2 Senior Certificates and Group 2
Subordinate Certificates in proportion to the excess, if any, for each such
Class of (i) the Monthly Interest Distributable Amount accrued at the
Pass-Through Rate for such Class, over (ii) the amount of the Monthly Interest
Distributable Amount for such Class calculated at the applicable Adjusted Cap
Rate for such Class.
On
each
Distribution Date, any amount of Net Deferred Interest allocable to a Class
of
Group 2 Senior Certificates and Group 2 Subordinate Certificates (other than
any
Interest-Only Certificates) on such Distribution Date will be added as principal
to the outstanding Class Principal Balance of such Class of Certificates. With
respect to the Class 2-X Certificates and each Distribution Date, any amount
of
Net Deferred Interest added to the Principal Balances of the related Group
2
Mortgage Loans that is allocated to the Class 2-X Certificates on such
Distribution Date will be added as principal to the outstanding Class Principal
Balances of the Class 2-PO Certificates. With respect to the Class 2-X-B
Certificates and each Distribution Date, any amount of Net Deferred Interest
added to the Principal Balances of the related Group 2 Mortgage Loans that
is
allocated to the Class 2-X-B Certificates on such Distribution Date will be
added as principal to the outstanding Component Principal Balances of the 2-PO-B
Certificates.
111
SECTION
5.03. Allocation of Realized Losses.
(a) On
or
prior to each Determination Date, the Securities Administrator shall aggregate
the loan-level information provided by the Master Servicer with respect to
the
total amount of Realized Losses, if any, with respect to the Mortgage Loans
in
each Loan Subgroup of Loan Group 1 and the Group 2 Mortgage Loans for the
related Distribution Date and include such information in the Distribution
Date
Statement.
(b) (i)
Realized Losses with respect to each Loan Subgroup in Loan Group 1 shall be
allocated on any Distribution Date as follows:
first,
to the
Group 1 Subordinate Certificates in reverse order of their respective numerical
Class designations (beginning with the Class of Group 1 Subordinate Certificates
with the highest numerical Class designation) until the Class Principal Balance
of each such Class is reduced to zero; and
second,
(A) with
respect to Subgroup 1-A1, to the Class 1-A1 and Class A-R Certificates,
pro
rata,
until
the Class Principal Balance of each such Class is reduced to zero;
and
(B) with
respect to Subgroup 1-A1, to the Class 1-A2 Certificates, until the Class
Principal Balance of such Class is reduced to zero.
(ii) Realized
Losses with respect to Loan Group 2 shall be allocated on any Distribution
Date
as follows:
first,
to the
Group 2 Subordinate Certificates in reverse order of their respective numerical
Class designations (beginning with the Class of Group 2 Subordinate Certificates
with the highest numerical Class designation) until the Class Principal Balance
of each such Class is reduced to zero; and
second,
to the
Class 2-A1A, Class 2-A1B, Class 2-A1C, Class 2-PO and Class 2-PO-B Certificates,
pro
rata,
until
the Class Principal Balance of each such Class is reduced to zero; provided,
however,
the
Class 2-A1C Certificates will bear the principal portion of all Realized Losses
allocable to the Class 2-A1A and Class 2-A1B Certificates for so long as the
Class 2-A1A and Class 2-A1B Certificates are outstanding; provided,
further,
the
Class 2-A1B Certificates will bear the principal portion of all Realized Losses
allocable to the Class 2-A1A Certificates for so long as the Class 2-A1A
Certificates are outstanding.
112
(c) The
Class
Principal Balance of the Class of Subordinate Certificates for either Loan
Group
then outstanding with the highest numerical Class designation shall be reduced
on each Distribution Date by the amount, if any, by which the aggregate of
the
Class Principal Balances of all outstanding Classes of Certificates for such
Loan Group (after giving effect to the distribution of principal and the
allocation of Realized Losses for such Loan Group on such Distribution Date)
exceeds the aggregate of the Stated Principal Balances of all the Mortgage
Loans
for such Loan Group for the following Distribution Date.
(d) Any
Realized Loss allocated to a Class of Certificates or any reduction in the
Class
Principal Balance of a Class of Certificates pursuant to Section 5.03(b) or
(c)
shall be allocated among the Certificates of such Class, pro
rata,
in
proportion to their respective Certificate Principal Balances.
(e) Any
allocation of Realized Losses to a Certificate or any reduction in the
Certificate Principal Balance of a Certificate pursuant to Section 5.03(b)
or
(c) shall be accomplished by reducing the Certificate Principal Balance thereof
immediately following the distributions made on the related Distribution Date
in
accordance with the definition of “Certificate Principal Balance.”
SECTION
5.04. Statements.
(a) Two
Business Days prior to each Distribution Date, the Securities Administrator
shall make available to the Securities Administrator, and concurrently with
each
distribution to Certificateholders, the Securities Administrator shall make
available to each Certificateholder, the Seller, the Master Servicer, the
Trustee, the Yield Maintenance Provider and the Rating Agencies, a statement
based, as applicable, on loan-level information provided to it by the Master
Servicer and the Servicers, no later than the third Business Day prior to the
related Distribution Date, (the “Distribution
Date Statement”)
as to
the distributions to be made or made, as applicable, on such Distribution Date.
Information in the Distribution Date Statement relating to or based on amounts
available in the Yield Maintenance Account shall be based on information
provided by the Yield Maintenance Provider regarding any Yield Maintenance
Amounts required to be paid by the Yield Maintenance Provider for the related
Distribution Date pursuant to the Yield Maintenance Agreements. The Distribution
Date Statement shall include the following:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Certificates allocable to principal;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Certificates allocable to interest;
(iii) the
related Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage
and Subordinate Prepayment Percentage with respect to each Loan Subgroup, in
the
case of Loan Group 1, or with respect to Loan Group 2, in each case for the
following Distribution Date;
113
(iv) the
aggregate amount of servicing compensation received by the Servicer during
the
related Due Period and such other customary information as the Securities
Administrator deems necessary or desirable, or which a Certificateholder
reasonably requests, to enable Certificateholders to prepare their tax
returns;
(v) the
amount of Advances for each Loan Subgroup, in the case of Loan Group 1, or
for
Loan Group 2 for the related Due Period and the amount of unreimbursed
Advances;
(vi) the
Loan
Subgroup Balance for Loan Group 1, the Loan Group Balance for Loan Group 2
and
the related Net WAC for each Loan Subgroup, in the case of Loan Group 1, or
with
respect to Loan Group 2, at the Close of Business at the end of the related
Due
Period;
(vii) for
each
Loan Subgroup of Loan Group 1, the aggregate Principal Balance of the Six-Month
LIBOR Indexed, One-Year LIBOR Indexed and One-Year CMT Indexed Mortgage Loans
at
the Close of Business at the end of the related Due Period;
(viii) for
Loan
Group 2, the aggregate Principal Balance of the Three-Month LIBOR Indexed,
One-Year LIBOR Indexed and One-Month MTA Indexed Mortgage Loans at the Close
of
Business at the end of the related Due Period;
(ix) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
amount of fees, expenses or indemnification amounts paid by the Trust Fund
with
an identification of the general purpose of such amounts and the party receiving
such amounts;
(x) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
number, weighted average remaining term to maturity, weighted average life
and
weighted average Loan Rate of the related Mortgage Loans as of the related
Due
Date;
(xi) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
number and aggregate unpaid principal balance of the related Mortgage Loans,
(a) 30 to 59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more
days Delinquent, (d) as to which foreclosure proceedings have been commenced
and
(e) in bankruptcy, in each case as of the close of business on the last day
of
the preceding calendar month, in each case, using the MBA method;
(xii) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
book value of any REO Property as of the Close of Business on the last Business
Day of the calendar month preceding the Distribution Date, and, cumulatively,
the total number and cumulative principal balance of all REO Properties in
each
Loan Group or Loan Subgroup, as applicable, as of the Close of Business of
the
last day of the preceding Due Period;
(xiii) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
aggregate amount of Principal Prepayments with respect to each Loan Group or
Loan Subgroup, as applicable, made during the related Prepayment
Period;
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(xiv) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
aggregate amount of Realized Losses incurred during the related Due Period
for
each Loan Group or Loan Subgroup, as applicable, and the cumulative amount
of
Realized Losses and the amount of Realized Losses, if any, allocated to each
Class of Certificates;
(xv) the
Class
Principal Balance or Class Notional Balance, as applicable, of each Class of
Certificates and the Apportioned Principal Balances of the related Subordinate
Certificates after giving effect to any distributions made thereon, on such
Distribution Date;
(xvi) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
Monthly Interest Distributable Amount and the Interest Distributable Amount
in
respect of each related Class of Certificates, for such Distribution Date and
the respective portions thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates on such Distribution
Date;
(xvii) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
aggregate amount of any Net Interest Shortfalls and the Unpaid Interest
Shortfall Amount for such Distribution Date;
(xviii) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
related Available Funds;
(xix) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
Pass-Through Rate and Adjusted Cap Rate for each Class of Certificates for
such
Distribution Date;
(xx) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller
during the related Due Period, and indicating the relevant section of the
Mortgage Loan Purchase Agreement, or the Section of this Agreement, as
applicable, requiring or allowing the purchase of each such Mortgage
Loan;
(xxi) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid
to
an Undercollateralized Group or amounts paid pursuant to Section 5.01(f)(i);
(xxii) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
current Recoveries allocable thereto;
(xxiii) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
cumulative Recoveries allocable thereto;
(xxiv) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
amount of any Basis Risk Shortfall, if any, and the related accrued interest
thereon;
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(xxv) for
each
Loan Subgroup, in the case of Loan Group 1, or with respect to Loan Group 2,
the
amount of Deferred Interest and Net Deferred Interest, if any, for such Loan
Group or Loan Subgroup, as applicable,;
(xxvi) payments
made under the Yield Maintenance Agreements, if any;
(xxvii) the
amount of Net Deferred Interest, if any, added to the Class Principal Balance
of
the related Certificates in Loan Group 2; and
(xxviii) The
amount of any Class 1-P Distributable Amount or Class 2-P Distributable
Amount.
The
Securities Administrator shall make the Distribution Date Statement (and, at
its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders and the other parties to
this
Agreement via the Securities Administrator’s internet website. The Securities
Administrator’s internet website shall initially be located at “▇▇▇.▇▇▇▇▇▇▇.▇▇▇.”
Assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable
to use the above distribution option are entitled to have a paper copy mailed
to
them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the way such
reports are distributed in order to make such distribution more convenient
and/or more accessible to the parties, and the Securities Administrator shall
provide timely and adequate notification to all parties regarding any such
change.
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Cut-Off
Date.
In
addition to the information listed above, such Distribution Date Statement
shall
also include the information required by Item 1121 (§ 229.1121) of Regulation
AB.
(b) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall, upon written request, furnish to each Person who at any
time during the calendar year was a Certificateholder of a Regular Certificate,
if requested in writing by such Person, such information as is reasonably
necessary to provide to such Person a statement containing the information
set
forth in subclauses (i), (ii) and (iv) above, aggregated for such calendar
year
or applicable portion thereof during which such Person was a Certificateholder
and such other customary information which a Certificateholder reasonably
requests to prepare its tax returns. Such obligation of the Securities
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be prepared and furnished by the
Securities Administrator to Certificateholders pursuant to any requirements
of
the Code as are in force from time to time.
(c) On
each
Distribution Date, the Securities Administrator shall supply an electronic
tape
to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg
Financial Markets, Inc. on a monthly basis, and shall supply an electronic
tape
to Loan Performance and Intex Solutions in a format acceptable to Loan
Performance and Intex Solutions on a monthly basis.
116
SECTION
5.05. Remittance Reports; Advances.
(a) No
later
than the second Business Day following each Determination Date, the Master
Servicer shall deliver to the Securities Administrator by telecopy or electronic
mail (or by such other means as the Master Servicer and the Securities
Administrator may agree from time to time) the Remittance Report with respect
to
the related Distribution Date. Not later than the Close of Business New York
time three Business Days prior to the related Distribution Date, the Master
Servicer shall deliver or cause to be delivered to the Securities Administrator
in addition to the information provided on the Remittance Report, such other
loan-level information reasonably available to it with respect to the Mortgage
Loans as the Securities Administrator may reasonably require to perform the
calculations necessary to make the distributions contemplated by Section
5.01.
(b) If
the
Monthly Payment on a Mortgage Loan that was due on a related Due Date and is
delinquent, other than as a result of application of the Relief Act, and for
which the related Servicer was required to make an advance pursuant to the
related Servicing Agreement exceeds the amount deposited in the Distribution
Account which will be used for an advance with respect to such Mortgage Loan,
the Master Servicer will deposit in the Distribution Account not later than
the
Business Day immediately preceding the related Distribution Date an amount
equal
to such deficiency, net of the Servicing Fee and the Master Servicing Fee,
for
such Mortgage Loan except to the extent the Master Servicer determines any
such
Advance to be Nonrecoverable from Liquidation Proceeds, Insurance Proceeds
or
future payments on the Mortgage Loan for which such Advance was made. Subject
to
the foregoing, the Master Servicer shall continue to make such Advances through
the date that the related Servicer is required to do so under its Servicing
Agreement. If applicable, on the Business Day immediately preceding the related
Distribution Date, the Master Servicer shall present an Officer’s Certificate to
the Securities Administrator and the Trustee (i) stating that the Master
Servicer elects not to make a Advance in a stated amount and (ii) detailing
the
reason it deems the advance to be Nonrecoverable.
SECTION
5.06. Compensating Interest Payments.
The
amount of the Master Servicing Fee payable to the Master Servicer in respect
of
any Distribution Date shall be reduced (but not below zero) by the amount of
any
Compensating Interest Payment for such Distribution Date, but only to the extent
that Interest Shortfalls relating to such Distribution Date are required to
be
paid but are not actually paid by the related Servicers on the applicable
Servicer Remittance Date. Such amount shall not be treated as an Advance and
shall not be reimbursable to the Master Servicer.
SECTION
5.07. Basis Risk Reserve Fund.
(a) On
the
Closing Date, the Securities Administrator shall establish and maintain in
its
name, in trust for the benefit of the holders of the (i) the Group 1 LIBOR
Certificates, the Group 1 Basis Risk Reserve Fund, (ii) the Class 2-A1A, Class
2-A1B and Class 2-A1C Certificates, the Group 2-A Basis Risk Reserve Fund and
(iii) the Class 2-B1, Class 2-B2, Class 2-B3, Class 2-B4, Class 2-B5 and Class
2-B6 Certificates, the Group 2-B Basis Risk Reserve Fund; the Depositor shall
deposit $0 into the Group 1 Basis Risk Reserve Fund, $299,857.51 into the Group
2-A Basis Risk Reserve Fund and $43,488.89 into the Group 2-B Basis Risk Reserve
Fund, which amounts are intended to cover the amount of Basis Risk Shortfalls
on
the related Certificates, if any, on the first, second and third Distribution
Dates. On the third Distribution Date after the Closing Date, any interest
accrued on such initial deposit and any amounts remaining from such initial
deposit will be distributed to MortgageIT; provided,
however,
that
the amount of any such distribution from each Basis Risk Reserve Fund shall
not
exceed the amount of the related initial deposit specified in the prior
sentence.
117
Each
of
the Group 1 Basis Risk Reserve Fund, Group 2-A Basis Risk Reserve Fund and
Group
2-B Basis Risk Reserve Fund shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with,
any other moneys, including, without limitation, other moneys of the Trustee
held pursuant to this Agreement. For the convenience of the Securities
Administrator, each Basis Risk Reserve Fund may be a separate subaccount of
a
single account established by the Securities Administrator. None of the Group
1
Basis Risk Reserve Fund, Group 2-A Basis Risk Reserve Fund or Group 2-B Basis
Risk Reserve Fund shall be an asset of any REMIC established
hereby.
(b) (i) On
each
Distribution Date, the Monthly Interest Distributable Amounts that would
otherwise be distributable with respect to the Class 1-X Certificates shall
instead be deposited in the Group 1 Basis Risk Reserve Fund to the extent of
the
1-X Required Reserve Fund Deposit.
(ii) On
each
Distribution Date, the Monthly Interest Distributable Amounts that would
otherwise be distributable with respect to the Class 2-X Certificates shall
instead be deposited in the Group 2-A Basis Risk Reserve Fund to the extent
of
the 2-X Required Reserve Fund Deposit.
(iii)
On each
Distribution Date, the Monthly Interest Distributable Amounts that would
otherwise be distributable with respect to the Class 2-X-B Certificates shall
instead be deposited in the Group 2-B Basis Risk Reserve Fund to the extent
of
the 2-X-B Required Reserve Fund Deposit.
(c) (i) On
any
Distribution Date for which a Basis Risk Shortfall exists with respect to the
Class 1-A1 and Class 1-A2 Certificates, the Securities Administrator, as Paying
Agent, shall withdraw first from the Yield Maintenance Account, the amount
of
such Basis Risk Shortfall for distribution on such Distribution Date pursuant
to
Section 4.04 and Section 5.01(a)(i)(B), and then from Group 1 Basis Risk Reserve
Fund the amount of any remaining Basis Risk Shortfall for such Classes of
Certificates, pursuant to Section 5.01(a)(i)(B); provided,
however,
that on
each of the first three Distribution Dates amounts initially deposited by the
Depositor into the Group 1 Basis Risk Reserve Fund shall be used to cover the
amount of Basis Risk Shortfalls on the Class 1-A1 and Class 1-A2 Certificates
before amounts deposited in respect of the 1-X Required Reserve Fund Deposit.
If
on any Distribution Date the amount on deposit in the Group 1 Basis Risk Reserve
Fund is not sufficient to make a full distribution of the Basis Risk Shortfall
with respect to the Class 1-A1 and Class 1-A2 Certificates remaining after
application of funds available therefor in the Yield Maintenance Account, the
Securities Administrator, as Paying Agent, shall withdraw the entire amount
on
deposit in the Group 1 Basis Risk Reserve Fund and distribute such amount to
such Classes of Certificates on a pro
rata
basis.
118
On
any
Distribution Date for which a Basis Risk Shortfall exists with respect to the
Class 1-B1 and Class 1-B2 Certificates, the Securities Administrator, as Paying
Agent, after making the distributions described in the immediately preceding
paragraph to the Class 1-A1 and Class 1-A2 Certificates, distribute the lesser
of any amounts remaining on deposit in the Group 1 Basis Risk Reserve Fund
and
such Basis Risk Shortfall to the Class 1-B1 and Class 1-B2, sequentially, in
that order.
Funds
remaining in the Group 1 Basis Risk Reserve Fund on any Distribution Date after
funding the payment of Basis Risk Shortfalls for such Distribution Date will
be
allocated to the Class 1-X Certificates, up to the amount of the 1-X Required
Reserve Fund Deposit for such Distribution Date.
(ii) On
any
Distribution Date for which a Basis Risk Shortfall exists with respect to the
Class 2-A1A, Class 2-A1B and Class 2-A1C Certificates, the Securities
Administrator, as Paying Agent, shall withdraw from Group 2-A Basis Risk Reserve
Fund the amount of any Basis Risk Shortfall for such Classes of Certificates,
pursuant to Section 5.01(a)(ii)(B); provided,
however,
that on
each of the first three Distribution Dates amounts initially deposited by the
Depositor into the Group 2-A Basis Risk Reserve Fund shall be used to cover
the
amount of Basis Risk Shortfalls on the Class 2-A1A, Class 2-A1B and Class 2-A1C
Certificates before amounts deposited in respect of the 2-X Required Reserve
Fund Deposit. If on any Distribution Date the amount on deposit in the Group
2-A
Basis Risk Reserve Fund is not sufficient to make a full distribution of the
Basis Risk Shortfall with respect to the Class 2-A1A, Class 2-A1B and Class
2-A1C Certificates, the Securities Administrator, as Paying Agent, shall
withdraw the entire amount on deposit in the Group 2-A Basis Risk Reserve Fund
and distribute such amount to such Classes of Certificates on a pro
rata
basis.
Funds
remaining in the Group 2-A Basis Risk Reserve Fund on any Distribution Date
after funding the payment of Basis Risk Shortfalls for such Distribution Date
will be allocated to the Class 2-X Certificates, up to the amount of the 2-X
Required Reserve Fund Deposit for such Distribution Date.
(iii) On
any
Distribution Date for which a Basis Risk Shortfall exists with respect to the
Class 2-B1, Class 2-B2, Class 2-B3, Class 2-B4, Class 2-B5 and Class 2-B6
Certificates, the Securities Administrator, as Paying Agent, shall withdraw
from
Group 2-B Basis Risk Reserve Fund the amount of any Basis Risk Shortfall for
such Classes of Certificates and distribute such amounts to the Class 2-B1,
Class 2-B2, Class 2-B3, Class 2-B4, Class 2-B5 and Class 2-B6 Certificates,
sequentially, in that order, pursuant to Section 5.01(a)(ii)(D); provided,
however,
that on
each of the first three Distribution Dates amounts initially deposited by the
Depositor into the Group 1 Basis Risk Reserve Fund shall be used to cover the
amount of Basis Risk Shortfalls on the Class 2-B1, Class 2-B2, Class 2-B3,
Class
2-B4, Class 2-B5 and Class 2-B6 Certificates before amounts deposited in respect
of the 2-X-B Required Reserve Fund Deposit.
119
Funds
remaining in the Group 2-B Basis Risk Reserve Fund on any Distribution Date
after funding the payment of Basis Risk Shortfalls for such Distribution Date
will be allocated to the Class 2-X-B Certificates, up to the amount of the
2-X-B
Required Reserve Fund Deposit for such Distribution Date.
(d) (i) Funds
in
the Group 1 Basis Risk Reserve Fund shall be invested in Permitted Investments.
Any earnings on amounts in the Group 1 Basis Risk Reserve Fund shall be for
the
benefit of the Class 1-X Certificateholders. The Class 1-X Certificates shall
evidence ownership of the Group 1 Basis Risk Reserve Fund for federal income
tax
purposes and the Holders thereof shall direct the Securities Administrator,
in
writing, as to investment of amounts on deposit therein. The Class 1-X
Certificateholder(s) shall be liable for any losses incurred on such
investments. In the absence of written instructions from the Class 1-X
Certificateholder as to investment of funds on deposit in the Group 1 Basis
Risk
Reserve Fund, such funds shall be invested in money market funds as specified
by
the Depositor and as described in clause (vi) of the definition of Permitted
Investments in Article I. For all Federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Group 1 Basis Risk Reserve Fund
shall
be treated as amounts distributed by the Upper-Tier REMIC to the Class 1-X
Certificateholders.
(ii)Funds
in
the Group 2-A Basis Risk Reserve Fund shall be invested in Permitted
Investments. Any earnings on amounts in the Group 2-A Basis Risk Reserve Fund
shall be for the benefit of the Class 2-X Certificateholders. The Class 2-X
Certificates shall evidence ownership of the Group 2-A Basis Risk Reserve Fund
for federal income tax purposes and the Holders thereof shall direct the
Securities Administrator, in writing, as to investment of amounts on deposit
therein. The Class 2-X Certificateholder(s) shall be liable for any losses
incurred on such investments. In the absence of written instructions from the
Class 2-X Certificateholder as to investment of funds on deposit in the Group
2-A Basis Risk Reserve Fund, such funds shall be invested in money market funds
as specified by the Depositor and as described in clause (vi) of the definition
of Permitted Investments in Article I. For all Federal income tax purposes,
amounts transferred by the Upper-Tier REMIC to the Group 2-A Basis Risk Reserve
Fund shall be treated as amounts distributed by the Upper-Tier REMIC to the
Class 2-X Certificateholders.
(iii)Funds
in
the Group 2-B Basis Risk Reserve Fund shall be invested in Permitted
Investments. Any earnings on amounts in the Group 2-B Basis Risk Reserve Fund
shall be for the benefit of the Class 2-X-B Certificateholders. The Class 2-X-B
Certificates shall evidence ownership of the Group 2-B Basis Risk Reserve Fund
for federal income tax purposes and the Holders thereof shall direct the
Securities Administrator, in writing, as to investment of amounts on deposit
therein. The Class 2-X-B Certificateholder(s) shall be liable for any losses
incurred on such investments. In the absence of written instructions from the
Class 2-X-B Certificateholder as to investment of funds on deposit in the Group
2-B Basis Risk Reserve Fund, such funds shall be invested in money market funds
as specified by the Depositor and as described in clause (vi) of the definition
of Permitted Investments in Article I. For all Federal income tax purposes,
amounts transferred by the Upper-Tier REMIC to the Group 2-B Basis Risk Reserve
Fund shall be treated as amounts distributed by the Upper-Tier REMIC to the
Class 2-X-B Certificateholders.
120
(e) Except
as
provided expressly hereunder, the Securities Administrator shall have no
obligation to invest and reinvest cash held in any Basis Risk Reserve Fund
in
the absence of timely and specific written investment direction from the
Depositor. In no event shall the Securities Administrator be liable for the
selection of investments or for investment losses incurred thereon. The
Securities Administrator shall have no liability in respect of losses incurred
as a result of the liquidation of any investment prior to its stated maturity
or
the failure of the Depositor to provide timely written investment
direction.
(f) 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 advisor, administrator,
shareholder servicing agent, custodian or sub-custodian with respect to certain
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. The Securities Administrator does not guarantee the performance
of
any Permitted Investment.
(g)
Upon
termination of the Trust Fund any amounts remaining in the Group 1 Basis Risk
Reserve Fund, the Group 2-A Basis Risk Reserve Fund and the Group 2-B Basis
Risk
Reserve Fund shall be distributed to the Class 1-X, Class 2-X and Class 2-X-B
Certificateholders, respectively.
SECTION
5.08. Recoveries.
(a) With
respect to any Class of Certificates to which a Realized Loss has been allocated
(including any such Class for which the related Class Principal Balance has
been
reduced to zero), the Class Principal Balance of such Class will be increased,
up to the amount of related Recoveries for such Distribution Date as
follows:
(i) first,
the Class Principal Balance of each Class of Senior Certificates related to
the
Loan Group from which the Recovery was collected, will be increased pro
rata,
up to
the amount by which Net Realized Losses previously allocated to each such Class
exceeds the amount of Recoveries for such Distribution Date previously
distributed to such Class, and
(ii) second,
the Class Principal Balance of each Class of Subordinate Certificates will
be
increased in order of seniority, up to the amount by which Net Realized Losses
previously allocated to each such Class exceeds the amount of Recoveries for
such Distribution Date previously distributed to such Class.
(b) Any
increase to the Class Principal Balance of a Class of Certificates shall
increase the Certificate Principal Balance of each Certificate of the related
Class pro
rata
in
accordance with each Percentage Interest.
121
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01. The Certificates.
The
Certificates shall be substantially in the form annexed hereto as Exhibit A-1
through E. Each of the Certificates shall, on original issue, be executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar upon the written order of the Depositor concurrently with the sale
and
assignment to the Trustee of the Trust Fund. Each Class of the Regular
Certificates shall be initially evidenced by one or more Certificates
representing a Percentage Interest with a minimum dollar denomination of $25,000
and integral dollar multiples of $1 in excess thereof, in the case of the Class
1-X, Class 2-X, Class 2-X-B, Class 2-PO, Class 2-PO-B and Class A-R Certificates
and $100,000 and integral dollar multiples of $1 in excess thereof, in the
case
of the Class 1-X, Class 2-X and Class 2-X-B Certificates. The Class 2-PO and
Class 2-PO-B Certificates will be issued in minimum percentage interests of
0.01%, provided,
that,
such certificates must be purchased in minimum total investments of at least
$100,000. The Class A-R Certificate will be issued as a single certificate
in
physical form.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Securities Administrator by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who
were,
at the time when such signatures were affixed, authorized to sign on behalf
of
the Trustee shall be binding, notwithstanding that such individuals or any
of
them have ceased to be so authorized prior to the authentication and delivery
of
such Certificates or did not hold such offices at the date of such Certificate.
Each Certificate shall, on original issue, be authenticated by the Certificate
Registrar upon the order of the Depositor. No Certificate shall be entitled
to
any benefit under this Agreement or be valid for any purpose, unless such
Certificate shall have been manually authenticated by the Certificate Registrar
substantially in the form provided for herein, and such authentication upon
any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Trustee to the Certificate
Registrar for authentication and the Certificate Registrar shall authenticate
and deliver such Certificates as provided in this Agreement and not otherwise.
Subject to Section 6.02(c), the Senior Certificates (other than the Class A-R
Certificates) and the Subordinate Certificates shall be Book-Entry Certificates.
The Class A-R Certificate shall be a Physical Certificate
The
Private Certificates shall be offered and sold in reliance either on (i) the
exemption from registration under Rule 144A of the 1933 Act and shall be issued
initially in the form of one or more permanent global Certificates in
definitive, fully registered form with the applicable legends set forth in
Exhibit C (each, a “Restricted
Global Security”)
or
(ii) Regulation S and shall be issued initially in the form of one or more
permanent global Certificates in definitive, fully registered form without
interest coupons with the applicable legends set forth in Exhibit C hereto
(each, a “Regulation
S Global Security”),
which
shall be deposited on behalf of the subscribers for such Certificates
represented thereby with the Trustee, as custodian for DTC and registered in
the
name of a nominee of DTC, duly executed by the Securities Administrator and
authenticated by the Certificate Registrar as hereinafter provided. The
aggregate principal amounts of the Restricted Global Securities or Regulation
S
Global Securities, as applicable, may from time to time be increased or
decreased by adjustments made on the records of the Certificate Registrar and
DTC or its nominee, as the case may be, as hereinafter provided.
122
SECTION
6.02. Registration of Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall cause to be kept a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Securities Administrator
is hereby appointed, and the Securities Administrator hereby accepts its
appointment as, initial Certificate Registrar on behalf of the Trustee, for
the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided.
Upon
surrender for registration of transfer of any Certificate at the Corporate
Trust
Office of the Certificate Registrar maintained for such purpose pursuant to
the
foregoing paragraph, the Securities Administrator on behalf of the Trust shall
execute, and the Certificate Registrar shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of the same aggregate Percentage Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute on behalf of the Trust, and the
Certificate Registrar shall authenticate and deliver the Certificates which
the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall (if
so
required by the Certificate Registrar) be duly endorsed by, or be accompanied
by
a written instrument of transfer satisfactory to the Certificate Registrar
duly
executed by, the Holder thereof or his attorney duly authorized in
writing.
(b) Except
as
provided in paragraph (c) or (d) below, the Book-Entry Certificates shall at
all
times remain registered in the name of the Depository or its nominee and at
all
times: (i) registration of such Certificates may not be transferred by the
Securities Administrator or the Certificate Registrar except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of such
Certificates; (iii) ownership and transfers of registration of such Certificates
on the books of the Depository shall be governed by applicable rules established
by the Depository; (iv) the Depository may collect its usual and customary
fees,
charges and expenses from its Depository Participants; (v) the Certificate
Registrar, the Paying Agent and the Trustee shall for all purposes deal with
the
Depository as representative of the Certificate Owners of such Certificates
for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of such representative shall not be deemed to
be
inconsistent if they are made with respect to different Certificate Owners;
(vi)
the Trustee, the Paying Agent and the Certificate Registrar may rely and shall
be fully protected in relying upon information furnished by the Depository
with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons shown
on
the books of such indirect participating firms as direct or indirect Certificate
Owners; and (vii) the direct participants of the Depository shall have no
rights under this Agreement under or with respect to any of the Certificates
held on their behalf by the Depository, and the Depository may be treated by
the
Trustee, the Paying Agent, the Certificate Registrar and their respective
agents, employees, officers and directors as the absolute owner of the
Certificates for all purposes whatsoever.
123
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute one or more Letter of Representations with the Depository or take such
other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms
of
any such Letter of Representation and this Agreement, the terms of this
Agreement shall control.
(c) If
(x)
the Depository or the Depositor advises the Certificate Registrar in writing
that the Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Certificate Registrar or the
Depositor is unable to locate a qualified successor, upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Securities Administrator shall at the Seller’s expense execute on behalf of
the Trust and authenticate definitive, fully registered certificates (the
“Definitive
Certificates”).
Neither the Depositor nor the Certificate Registrar shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee, the Certificate Registrar, the Paying Agent and
the
Depositor shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(d) No
transfer, sale, pledge or other disposition of any Private Certificate, other
than a Private Certificate sold in an offshore transaction in reliance on
Regulation S, shall be made unless such disposition is exempt from the
registration requirements of the 1933 Act, and any applicable state securities
laws or is made in accordance with the 1933 Act and laws. Any Private
Certificates sold to an “accredited investor” under Rule 501(a)(1), (2), (3) or
(7) under the 1933 Act shall be issued only in the form of one or more
Definitive Certificates and the records of the Certificate Registrar and DTC
or
its nominee shall be adjusted to reflect the transfer of such Definitive
Certificates. In the event of any transfer of any Private Certificate in the
form of a Definitive Certificate, (i) the transferee shall certify (A) such
transfer is made to a Qualified Institutional Buyer in reliance upon Rule 144A
(as evidenced by an investment letter delivered to the Certificate Registrar,
in
substantially the form attached hereto as Exhibit J-2) under the 1933 Act,
or
(B) such transfer is made to an “accredited investor” under Rule 501(c)(1), (2),
(3) or (7) under the 1933 Act (as evidenced by an investment letter delivered
to
the Certificate Registrar, in substantially the form attached hereto as Exhibit
J-1, and, if so required by the Certificate Registrar and the Depositor, a
written Opinion of Counsel (which may be in-house counsel) acceptable to and
in
form and substance reasonably satisfactory to the Certificate Registrar and
the
Depositor, delivered to the Certificate Registrar and the Depositor stating
that
such transfer may be made pursuant to an exemption, including a description
of
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 not be an expense
of the Trust, the Trustee, the Certificate Registrar, the Master Servicer,
the
Securities Administrator or the Depositor) or (ii) the Certificate Registrar
shall require the transferor to execute a transferor certificate and the
transferee to execute an investment letter acceptable to and in form and
substance reasonably satisfactory to the Depositor and the Certificate Registrar
certifying to the Depositor and the Certificate Registrar the facts surrounding
such transfer, which investment letter shall not be an expense of the Trust,
the
Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator or the Depositor. Each Holder of a Private Certificate desiring
to
effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the
Certificate Registrar, the Securities Administrator, the Seller and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
124
In
the
case of a Private Certificate that is a Book-Entry Certificate, for purposes
of
the preceding paragraph, the representations set forth in the investment letter
in clause (i) shall be deemed to have been made to the Certificate Registrar
by
the transferee’s acceptance of such Private Certificate that is also a
Book-Entry Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in such Certificate).
If
any
Certificate Owner that is required under this Section 6.02(d) to transfer its
Class 1-B4, Class 1-B5, Class 1-B6, Class 2-B4, Class 2-B5 or Class 2-B6
Certificates that are Book-Entry Certificates in the form of Definitive
Certificates, (i) notifies the Certificate Registrar of such transfer or
exchange and (ii) transfers such Book-Entry Certificates to the Certificate
Registrar, in its capacity as such, through the book-entry facilities of the
Depository, then the Certificate Registrar shall decrease the balance of such
Book-Entry Certificates, or the Certificate Registrar shall use reasonable
efforts to cause the surrender to the Certificate Registrar of such Book-Entry
Certificates by the Depository, and thereupon, the Trustee, on behalf of the
Trust, shall execute and the Certificate Registrar shall authenticate and
deliver to such Certificate Owner or its designee one or more Definitive
Certificates in authorized denominations and with a like aggregate Certificate
Principal Balance.
Subject
to the provisions of this Section 6.02(d) governing registration of transfer
and
exchange Class 1-B4, Class 1-B5, Class 1-B6, Class 2-B4, Class 2-B5 or Class
2-B6 Certificates (i) held as Definitive Certificates may be transferred in
the form of Book-Entry Certificates in reliance on Rule 144A (to one or more
Qualified Institutional Buyers) or Regulation S under the 1933 Act that are
acquiring such Definitive Certificates, their own accounts for or for the
accounts of other Qualified Institutional Buyers and (ii) held as
Definitive Certificates by a Qualified Institutional Buyer or an investor under
Regulation S for its own account or for the account of another Qualified
Institutional Buyer or Regulation S investor may be exchanged for Book-Entry
Certificates, in each case upon surrender of such Certificates for registration
of transfer or exchange at the offices of the Certificate Registrar maintained
for such purpose. Whenever any such Certificates are so surrendered for transfer
or exchange, either the Certificate Registrar shall increase the balance of
the
related Book-Entry Certificates ,or the Trustee on behalf of the Trust shall
execute, and the Certificate Registrar shall authenticate and deliver, the
Book-Entry Certificates for which such Certificates were transferred or
exchanged, as necessary and appropriate. No Holder of any such Definitive
Certificates other than a Qualified Institutional Buyer or a Regulation S
investor holding such Certificates for its own account or for the account of
another Qualified Institutional Buyer or Regulation S investor may exchange
such
Certificates for Book-Entry Certificates. Further, any Certificate Owner of
such
Book-Entry Certificates other than any such Qualified Institutional Buyers
or
Regulation S investors shall notify the Certificate Registrar of its status
as
such and shall transfer such Book-Entry Certificate to the Certificate
Registrar, through the book-entry facilities of the Depository, whereupon,
and
also upon surrender to the Certificate Registrar of such Book-Entry Certificates
by the Depository, (which surrender the Certificate Registrar shall use
reasonable efforts to cause to occur), the Securities Administrator on behalf
of
the Trust shall execute, and the Certificate Registrar shall authenticate and
deliver, to such Certificate Owner or such Certificate Owner’s nominee one or
more Definitive Certificates in authorized denominations and with a like
aggregate Certificate Principal Balance.
125
None
of
the Depositor, the Seller, the Securities Administrator, the Certificate
Registrar or the Trustee is obligated to register or qualify the Private
Certificates under the 1933 Act or any other securities laws or to take any
action not otherwise required under this Agreement to permit the transfer of
such Certificates without registration or qualification. Any Certificateholder
desiring to effect the transfer of a Private Certificate shall, and does hereby
agree to, indemnify the Trustee, the Seller, the Securities Administrator,
the
Depositor and the Certificate Registrar against any liability that may result
if
the transfer is not so exempt or is not made in accordance with such federal
and
state laws.
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation from the transferee of such Certificate, acceptable
to and in form and substance satisfactory to the Certificate Registrar and
the
Depositor (such requirement is satisfied only by the Certificate Registrar’s
receipt of a representation letter from the transferee substantially in the
form
of Exhibit I-1 or I-2, as applicable, hereto), to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA
or a
plan or arrangement subject to Section 4975 of the Code, nor a person acting
on
behalf of any such plan or arrangement nor using the assets of any such plan
or
arrangement to effect such transfer or (ii) if such Certificate 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 which
is
purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE
95-60”)
and
that the purchase and holding of such Certificates are covered under Sections
I
and III of PTCE 95-60 or (iii) an Opinion of Counsel satisfactory to the
Certificate Registrar, which Opinion of Counsel shall not be an expense of
the
Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Depositor or the Trust, addressed to the Certificate
Registrar, to the effect that the purchase and holding of such ERISA-Restricted
Certificate in the form of a Definitive Certificate will not result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code and will not subject the Trustee, the Certificate Registrar, the Master
Servicer, the Servicer, the Securities Administrator or the Depositor 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 an ERISA-Restricted Certificate in the form of a Definitive
Certificate to an employee benefit plan subject to ERISA or Section 4975 of
the
Code without the delivery to the Certificate Registrar of an Opinion of Counsel
satisfactory to the Certificate Registrar as described above shall be void
and
of no effect.
126
In
the
case of an ERISA-Restricted Certificate that is a Book-Entry Certificate, for
purposes of clauses (i) or (ii) of the first sentence of the preceding
paragraph, such representations shall be deemed to have been made to the
Certificate Registrar by the transferee’s acceptance of such ERISA-Restricted
Certificate that is also a Book-Entry Certificate (or the acceptance by a
Certificate Owner of the beneficial interest in such Certificate).
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
none of the Trustee, the Certificate Registrar or the Depositor shall have
any
liability to any Person for any registration of transfer of any ERISA-Restricted
Certificate that is in fact not permitted by this Section 6.02(d) or for the
Paying Agent 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 Certificate
Registrar in accordance with the foregoing requirements. In addition, none
of
the Trustee, the Certificate Registrar or the Depositor shall be required to
monitor, determine or inquire as to compliance with the transfer restrictions
with respect to any ERISA-Restricted Certificate in the form of a Book-Entry
Certificate, and none of the Trustee, the Certificate Registrar or the Depositor
shall have any liability for transfers of Book-Entry Certificates or any
interests therein made in violation of the restrictions on transfer described
in
the Prospectus Supplement and this Agreement.
(e) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee who acquires such Ownership Interest in a
Residual Certificate for its own account and not in the capacity as trustee,
nominee or agent for another Person and shall promptly notify the Certificate
Registrar and the Trustee of any change or impending change in its status as
such a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date and no Ownership Interest in a Residual Certificate may thereafter be
transferred, and the Certificate Registrar shall not register the Transfer
of a
Residual Certificate unless, in addition to the certificates required to be
delivered under subsection (d) above, the Trustee and the Certificate Registrar
shall have been furnished with an affidavit (“Transfer
Affidavit”)
of the
initial owner of such Residual Certificate or proposed transferee of a Residual
Certificate in the form attached hereto as Exhibit L.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trustee and the Certificate Registrar shall as a condition
to
registration of the transfer, require delivery to them of a Transferor
Certificate in the form of Exhibit K hereto from the proposed transferor to
the
effect that the transferor (a) has no knowledge the proposed Transferee is
not a
Permitted Transferee acquiring an Ownership Interest in such Residual
Certificate for its own account and not in a capacity as trustee, nominee,
or
agent for another Person, and (b) has not undertaken the proposed transfer
in
whole or in part to impede the assessment or collection of tax.
127
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of such Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of Transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. None of the Trustee, the Certificate Registrar or the Depositor
shall have any liability to any Person for any registration of Transfer of
a
Residual Certificate that is in fact not permitted by this Section or for the
Paying Agent making any distributions due on a Residual Certificate to the
Holder thereof or taking any other action with respect to such Holder win the
provisions of this Agreement so long as the Trustee and the Certificate
Registrar received the documents specified in clause (iii). The Certificate
Registrar shall be entitled to recover from any Holder of such Residual
Certificate that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Residual Certificate.
Any
such distributions so recovered by the Certificate Registrar shall be
distributed and delivered by the Certificate Registrar to the last Holder of
such Residual Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Certificate Registrar shall have the right but not the obligation, without
notice to the Holder of such Residual Certificate or any other Person having
an
Ownership Interest therein, to notify the Depositor to arrange for the sale
of
such Residual Certificate. The proceeds of such sale, net of commissions (which
may include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the
Certificate Registrar to the previous Holder of such Residual Certificate that
is a Permitted Transferee, except that in the event that the Certificate
Registrar determines that the Holder of such Residual Certificate may be liable
for any amount due under this Section or any other provisions of this Agreement,
the Certificate Registrar may withhold a corresponding amount from such
remittance as security for such claim. The terms and conditions of any sale
under this clause (v) shall be determined in the sole discretion of the Trustee
and the Certificate Registrar and they shall not be liable to any Person having
an Ownership Interest in such Residual Certificate as a result of its exercise
of such discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Securities Administrator upon receipt of reasonable compensation will provide
to
the Internal Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
128
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Certificate
Registrar and the Servicer, in form and substance satisfactory to the
Certificate Registrar, (i) written notification from each Rating Agency that
the
removal of the restrictions on Transfer set forth in this Section will not
cause
such Rating Agency to downgrade its ratings of the Certificates and (ii) an
Opinion of Counsel to the effect that such removal will not cause the REMIC
created hereunder to fail to qualify as a REMIC.
(f) Notwithstanding
any provision to the contrary herein, so long as a Restricted Global Security
or
Regulation S Global Security, as applicable, representing the Certificates
remains outstanding and is held by or on behalf of the Depository, transfers
of
a Restricted Global Security or Regulation S Global Security, as applicable,
representing the Certificates, in whole or in part, shall only be made in
accordance with Section 6.01 and this Section 6.02(f).
(i) Subject
to clauses (ii) and (iii) of this Section 6.02(f), transfers of a Restricted
Global Security or Regulation S Global Security, as applicable, representing
the
Certificates shall be limited to transfers of such a Restricted Global Security
or Regulation S Global Security, as applicable, in whole, but not in part,
to
nominees of the Depository or to a successor of the Depository or such
successor’s nominee.
(ii) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited with
or on behalf of the Depository wishes at any time to exchange its interest
in
such Restricted Global Security for an interest in a Regulation S Global
Security, or to transfer its interest in such Restricted Global Security to
a
Person who wishes to take delivery thereof in the form of an interest in a
Regulation S Global Security, such holder, provided such holder is not a U.S.
Person, may, subject to the rules and procedures of the Depository, exchange
or
cause the exchange of such interest for an equivalent beneficial interest in
the
Regulation S Global Security. Upon receipt by the Certificate Registrar of
(A)
instructions from the Depository directing the Certificate Registrar to cause
to
be credited a beneficial interest in a Regulation S Global Security in an amount
equal to the beneficial interest in such Restricted Global Security to be
exchanged but not less than the minimum denomination applicable to such
Certificateholders’ held through a Regulation S Global Security, (B) a written
order given in accordance with the Depository’s procedures containing
information regarding the participant account of the Depository and, in the
case
of a transfer pursuant to and in accordance with Regulation S, the Euroclear
or
Clearstream account to be credited with such increase and (C) a certificate
in
the form of Exhibit N-1 hereto given by the holder of such beneficial interest
stating that the exchange or transfer of such interest has been made in
compliance with the transfer restrictions applicable to the Global Securities,
including that the holder is not a U.S. Person and pursuant to and in accordance
with Regulation S, the Certificate Registrar shall reduce the principal amount
of the Restricted Global Security and increase the principal amount of the
Regulation S Global Security by the aggregate principal amount of the beneficial
interest in the Restricted Global Security to be exchanged, and shall instruct
Euroclear or Clearstream, as applicable, concurrently with such reduction,
to
credit or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security equal
to
the reduction in the principal amount of the Restricted Global
Security.
129
(iii) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of the Depository wishes at any time to transfer its interest
in
such Regulation S Global Security to a Person who wishes to take delivery
thereof in the form of an interest in a Restricted Global Security, such holder
may, subject to the rules and procedures of the Depository, exchange or cause
the exchange of such interest for an equivalent beneficial interest in a
Restricted Global Security. Upon receipt by the Certificate Registrar of (A)
instructions from the Depository directing the Certificate Registrar to cause
to
be credited a beneficial interest in a Restricted Global Security in an amount
equal to the beneficial interest in such Regulation S Global Security to be
exchanged but not less than the minimum denomination applicable to such
Certificateholder’s Certificates held through a Restricted Global Security, to
be exchanged, such instructions to contain information regarding the participant
account with the Depository to be credited with such increase, and (B) a
certificate in the form of Exhibit N-2 hereto given by the holder of such
beneficial interest and stating, among other things, that the Person
transferring such interest in such Regulation S Global Security reasonably
believes that the Person acquiring such interest in a Restricted Global Security
is a qualified institutional buyer within the meaning of Rule 144A, is obtaining
such beneficial interest in a transaction meeting the requirements of Rule
144A
and in accordance with any applicable securities laws of any State of the United
States or any other jurisdiction, then the Certificate Registrar will reduce
the
principal amount of the Regulation S Global Security and increase the principal
amount of the Restricted Global Security by the aggregate principal amount
of
the beneficial interest in the Regulation S Global Security to be transferred
and the Certificate Registrar shall instruct the Depository, concurrently with
such reduction, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Restricted Global
Security equal to the reduction in the principal amount of the Regulation S
Global Security.
(iv) Other
Exchanges.
In the
event that a Restricted Global Security or Regulation S Global Security, as
applicable, is exchanged for Certificates in definitive registered form without
interest coupons, such Certificates may be exchanged for one another only in
accordance with such procedures as are substantially consistent with the
provisions above (including certification requirements intended to insure that
such transfers comply with Rule 144A or are to non-U.S. Persons, or otherwise
comply with Regulation S under the Securities Act, as the case may be, and
as
may be from time to time adopted by the Depositor and the Certificate
Registrar.
(v) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 6.02(f)(iii).
(g) No
service charge shall be made for any registration of transfer or exchange of
Certificates of any Class, but the Certificate Registrar may require payment
of
a sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
130
SECTION
6.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Trustee or the Certificate
Registrar or the Trustee or the Certificate Registrar receives evidence to
its
satisfaction of the destruction, loss or theft of any Certificate and (ii)
there
is delivered to the Trustee, the Certificate Registrar and the Depositor such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee, the Depositor or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser,
the
Securities Administrator shall execute on behalf of the Trust and the
Certificate Registrar shall authenticate and deliver, in exchange for or in
lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section, the Depositor or the Certificate Registrar may require
the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Depositor and the Certificate Registrar) in connection
therewith. Any duplicate Certificate issued pursuant to this Section, shall
constitute complete and indefeasible evidence of ownership in the Trust Fund,
as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION
6.04. Persons Deemed Owners.
The
Depositor, the Trustee, the Certificate Registrar, the Paying Agent and any
agent of the Depositor, the Trustee, the Certificate Registrar or the Paying
Agent may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions pursuant to Section 5.01 hereof and for all other
purposes whatsoever, and none of the Trust, the Depositor, the Trustee, the
Certificate Registrar, the Paying Agent or any agent of any of them shall be
affected by notice to the contrary.
SECTION
6.05. Appointment of Paying Agent.
(a) The
Trustee may appoint a Paying Agent (which may be the Trustee) for the purpose
of
making distributions to Certificateholders hereunder. The Trustee hereby
appoints the Securities Administrator as the initial Paying Agent. The duties
of
the Paying Agent may include the obligation (i) to withdraw funds from the
Distribution Account pursuant to Section 4.03 hereof and (ii) to distribute
statements and provide information to Certificateholders as required hereunder.
The Paying Agent hereunder shall at all times be an entity duly incorporated
and
validly existing under the laws of the United States of America or any state
thereof, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal or state authorities.
(b) The
Securities Administrator, as Paying Agent, shall hold all sums, if any, held
by
it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall comply with all requirements of the Code regarding
the withholding of payments in respect of federal income taxes due from
Certificate Owners and otherwise comply with the provisions of this Agreement
applicable to it.
131
ARTICLE
VII
DEFAULT
SECTION
7.01. Event of Default.
(a) If
any
one of the following events (each, an “Event
of Default”)
shall
occur and be continuing:
(i) the
failure by the Master Servicer to (A) make any Advance on the Business Day
immediately preceding the related Distribution Date or (B) to deposit in the
Distribution Account any deposit required to be made under the terms of this
Agreement, and in either case such failure continues unremedied for a period
of
three Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
(or, if applicable, such shorter time period as is provided in the penultimate
sentence of Section 7.01(c)); or
(ii) the
failure by the Master Servicer duly to observe or perform, in any material
respect, any other covenants, obligations or agreements of the Master Servicer
as set forth in this Agreement, which failure continues unremedied for a period
of 60 days, in each case after the date (A) on which written notice of such
failure, requiring the same to be remedied, shall have been given to the Master
Servicer by the Trustee or to the Master Servicer and the Trustee by Holders
of
Certificates evidencing at least 25% of the Voting Rights or (B) on which a
Servicing Officer of the Master Servicer has actual knowledge of such failure
(or, in the case of a breach of its obligation beyond any applicable cure period
to provide an assessment of compliance, an attestation report or a
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification pursuant to Sections 3.16 and 3.18, respectively);
or
(iii) the
entry
against the Master Servicer of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment
of
a trustee, conservator, receiver or liquidator in any insolvency,
conservatorship, receivership, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings, or for the winding up or liquidation of
its
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 days; or
(iv) the
Master Servicer shall voluntarily go into liquidation, consent to the
appointment of a conservator or receiver or liquidator or similar person in
any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Master Servicer or of or relating
to
all or substantially all of its property; or a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, liquidator or similar person in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order shall
have remained in force undischarged, unbonded or unstayed for a period of 60
days; or the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations;
132
(b) then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied within the applicable grace period, the Trustee shall, at the written
direction of the Holders of Certificates evidencing Voting Rights aggregating
not less than 51%, or at its option may, by notice then given in writing to
the
Master Servicer, terminate all of the rights and obligations of the Master
Servicer as servicer under this Agreement. Any such notice to the Master
Servicer shall also be given to each Rating Agency, the Depositor and the
Seller. On or after the receipt by the Master Servicer (and by the Trustee
if
such notice is given by the Holders) of such written notice, all authority
and
power of the Master Servicer under this Agreement, whether with respect to
the
Certificates or the Mortgage Loans or otherwise, shall pass to and be vested
in
the Trustee and the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any
and all documents and other instruments, and to do or accomplish all other
acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of each Mortgage
Loan and related documents or otherwise. The Master Servicer agrees to cooperate
with the Trustee in effecting the termination of the responsibilities and rights
of the Master Servicer hereunder, including, without limitation, the delivery
to
the Trustee of all documents and records requested by it to enable it to assume
the Master Servicer's functions under this Agreement within ten Business Days
subsequent to such notice and the transfer within one Business Day subsequent
to
such notice to the Trustee for the administration by it of all cash amounts
that
shall at the time be held by the Master Servicer and to be deposited by it
in
the Distribution Account, any REO Account or any Servicing Account or that
have
been deposited by the Master Servicer in such accounts or thereafter received
by
the Master Servicer with respect to the Mortgage Loans or any REO Property
received by the Master Servicer. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with transferring the Master Servicer's
duties and the Mortgage Files to the successor Master Servicer and amending
this
Agreement to reflect such succession as Master Servicer pursuant to this Section
shall be paid by the predecessor Master Servicer (or if the predecessor Master
Servicer is the Trustee, the initial Master Servicer) upon presentation of
reasonable documentation of such costs and expenses.
The
termination of the rights and obligations of the Master Servicer shall not
affect any liability it may have incurred prior to such termination. To the
extent that such costs and expenses of the Trustee are not fully and timely
reimbursed by the predecessor Master Servicer, the Trustee shall be entitled
to
reimbursement of such costs and expenses from the Distribution
Account.
(c) The
Securities Administrator shall not later than the close of business on the
Business Day immediately preceding the related Distribution Date notify the
Trustee in writing of the Master Servicer’s failure to make any Advance required
to be made under this Agreement on such date and the amount of such Advance.
By
no later than 10:00 A.M. (Chicago time) on the relevant Distribution Date,
the
Securities Administrator shall notify the Trustee of the continuance of such
failure or that the Master Servicer has made the Advance, as the case may be.
Notwithstanding the terms of the Event of Default described in clause (i)(A)
of
Section 7.01(a), the Trustee, upon receipt of written notice on the Distribution
Date from the Securities Administrator of the continuance of the failure of
the
Master Servicer to make an Advance, shall, by notice in writing to the Master
Servicer, which may be delivered by telecopy, immediately suspend all of the
rights and obligations of the Master Servicer thereafter arising under this
Agreement, but without prejudice to any rights it may have as a
Certificateholder or to reimbursement of outstanding Advances or other amounts
for which the Master Servicer was entitled to reimbursement as of the date
of
suspension, and the Trustee, subject to the cure provided for in this paragraph,
if available, shall act as provided in Section 7.02 to carry out the duties
of
the Master Servicer, including the obligation to make any Advance the nonpayment
of which is described in clause (i)(A) of Section 7.01(a). Any such action
taken
by the Trustee must be prior to the distribution on the relevant Distribution
Date, and shall have all of the rights incidental thereto. If the Master
Servicer shall within two Business Days following such suspension remit to
the
Trustee the amount of any Advance the nonpayment of which by the Master Servicer
is described in clause (i)(A) of Section 7.01(a), together with all other
amounts necessary to reimburse the Trustee for actual, necessary and reasonable
costs incurred by the Trustee because of action taken pursuant to this
subsection (including interest on any Advance or other amounts paid by the
Trustee (from and including the respective dates thereof) at a per annum rate
equal to the prime rate for U.S. money center commercial banks as published
in
the Wall Street Journal), then the Trustee, subject to the last two sentences
of
this paragraph, may at its sole discretion permit the Master Servicer to resume
its rights and obligations as Master Servicer hereunder. If
the
Master Servicer shall fail to remit such amounts to the Trustee within such
two
Business Days after the Distribution Date, then an Event of Default shall occur
and such notice of suspension shall be deemed to be a notice of termination
without any further action on the part of the Trustee. The Master Servicer
agrees that if it fails to make a required Advance by 10:00 A.M. (Chicago time)
on the related Distribution Date on more than two occasions in any 12 month
period, the Trustee shall be under no obligation to permit the Master Servicer
to resume its rights and obligations as Master Servicer hereunder, and
notwithstanding the cure period provided in Section 7.01(a)(i)(A), an Event
of
Default shall be deemed to have occurred on the relevant Distribution Date.
133
SECTION
7.02. Trustee to Act.
(a) From
and
after the date the Master Servicer (and the Trustee, if notice is sent by the
Holders) receives a notice of termination pursuant to Section 7.01, the Trustee
shall be the successor in all respects to the Master Servicer in its capacity
as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof arising on and after its succession. As compensation therefor, the
Trustee shall be entitled to such compensation as the Master Servicer would
have
been entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, (i) if the Trustee is unwilling to act as successor
Master Servicer or (ii) if the Trustee is legally unable so to act, the Trustee
shall appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution, bank or other mortgage loan
or
home equity loan servicer having a net worth of not less than $15,000,000 as
the
successor to the Master Servicer hereunder in the assumption of all or any
part
of the responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the appointment of any such successor Master Servicer shall
not
result in the qualification, reduction or withdrawal of the ratings assigned
to
the Certificates by each Rating Agency as evidenced by a letter to such effect
from each Rating Agency. Pending appointment of a successor to the Master
Servicer hereunder, unless the Trustee is prohibited by law from so acting,
the
Trustee shall act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the successor shall be entitled to receive
compensation out of payments on Mortgage Loans in an amount equal to the
compensation which the Master Servicer would otherwise have received pursuant
to
Section 3.18. The appointment of a successor Master Servicer shall not affect
any liability of the predecessor Master Servicer which may have arisen under
this Agreement prior to its termination as Master Servicer to pay any deductible
under an insurance policy pursuant to Section 3.14 or to indemnify the Trustee
pursuant to Section 8.05), nor shall any successor Master Servicer be liable
for
any acts or omissions of the predecessor Master Servicer or for any breach
by
such Master Servicer of any of its representations or warranties contained
herein or in any related document or agreement. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to
effectuate any such succession.
134
(b) Any
successor, including the Trustee, to the Master Servicer as Master Servicer
shall during the term of its service as Master Servicer continue to service
and
administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Master Servicer hereunder
and
a Fidelity Bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section
3.04.
(c) Notwithstanding
anything else herein to the contrary, in no event shall the Trustee be liable
for any servicing fee or for any differential in the amount of the servicing
fee
paid hereunder and the amount necessary to induce any successor Master Servicer
to act as successor Master Servicer under this Agreement and the transactions
set forth or provided for herein.
SECTION
7.03. Waiver of Event of Default.
The
Majority Certificateholders may, on behalf of all Certificateholders, by notice
in writing to the Trustee, direct the Trustee to waive any events permitting
removal of any Master Servicer under this Agreement, provided,
however,
that
the Majority Certificateholders may not waive an event that results in a failure
to make any required distribution on a Certificate without the consent of the
Holder of such Certificate. Upon any waiver of an Event of Default, such event
shall cease to exist and any Event of Default arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other event or impair any right consequent thereto
except to the extent expressly so waived. Notice of any such waiver shall be
given by the Trustee to each Rating Agency.
SECTION
7.04. Notification to Certificateholders.
(a) Upon
any
termination or appointment of a successor to any Master Servicer pursuant to
this Article VII or Section 3.34, the Securities Administrator shall give prompt
written notice thereof to the Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
135
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute an Event of Default of
which
a Responsible Officer of the Trustee becomes aware of the occurrence of such
an
event, the Trustee shall transmit by mail to all Certificateholders notice
of
such occurrence unless such Event of Default shall have been waived or
cured.
ARTICLE
VIII
THE
TRUSTEE
AND THE
SECURITIES ADMINISTRATOR
SECTION
8.01. Duties of Trustee and Securities Administrator.
The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default which may have occurred, and the Securities
Administrator each undertake to perform such duties and only such duties as
are
specifically set forth in this Agreement. If an Event of Default has occurred
(which has not been cured or waived) of which a Responsible Officer has actual
knowledge, the Trustee shall exercise such of the rights and powers vested
in it
by this Agreement, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of
his own affairs, unless the Trustee is acting as successor Master Servicer,
in
which case it shall use the same degree of care and skill as the Master Servicer
hereunder with respect to the exercise of the rights and powers of the Master
Servicer hereunder.
The
Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee and the Securities Administrator, which
are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided,
however,
that
neither the Trustee nor the Securities Administrator will be responsible for
the
accuracy or content of any such resolutions, certificates, statements, opinions,
reports, documents or other instruments. If any such instrument is found not
to
conform to the requirements of this Agreement in a material manner the Trustee
and the Securities Administrator shall take such action as it deems appropriate
to have the instrument corrected.
On
each
Distribution Date, the Securities Administrator shall make monthly distributions
to the Certificateholders from funds in the Distribution Account and the Basis
Risk Reserve Funds, as applicable, in each case as provided in Sections 5.01,
5.07 and 10.01 herein based on the report of the Securities
Administrator.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided,
however,
that:
(i) prior
to
the occurrence of an Event of Default, and after the curing of all such Events
of Default which may have occurred, the duties and obligations of the Trustee
and the Securities Administrator shall be determined solely by the express
provisions of this Agreement, neither the Trustee nor the Securities
Administrator shall be liable except for the performance of such of its duties
and obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Securities Administrator and, in the absence of bad faith on the part
of
the Trustee or the Securities Administrator, respectively, the Trustee or the
Securities Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the Securities
Administrator, respectively, and conforming to the requirements of this
Agreement;
136
(ii) neither
the Trustee nor the Securities Administrator shall be liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be proved
that the Trustee or the Securities Administrator, respectively, was negligent
in
ascertaining or investigating the facts related thereto;
(iii) neither
the Trustee nor the Securities Administrator shall be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith
in accordance with the consent or at the direction of Holders of Certificates
as
provided herein relating to the time, method and place of conducting any remedy
pursuant to this Agreement, or exercising or omitting to exercise any trust
or
power conferred upon the Trustee or the Securities Administrator, respectively,
under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any Event of Default or a
Document Transfer Event or any other event or matter that may require it to
take
action or omit to take action hereunder unless a Responsible Officer of the
Trustee at the Corporate Trust Office receives written notice of such Event
of
Default or Document Transfer Event.
Neither
the Trustee nor the Securities Administrator shall be required to expend or
risk
its own funds or otherwise incur financial or other liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such
funds or indemnity satisfactory to it against such risk or liability is not
assured to it, and none of the provisions contained in this Agreement shall
in
any event require the Trustee or the Securities Administrator to perform, or
be
responsible for the manner of performance of, any of the obligations of the
Master Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Master Servicer in accordance with the terms of this
Agreement.
SECTION
8.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
Except
as
otherwise provided in Section 8.01 hereof:
(i) the
Trustee and the Securities Administrator may request and conclusively rely
upon,
and shall be fully protected in acting or refraining from acting upon, any
resolution, Officers’ Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it
to
be genuine and to have been signed or presented by the proper party or parties,
and the manner of obtaining consents and of evidencing the authorization of
the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee and the Securities Administrator may
prescribe;
137
(ii) the
Trustee and the Securities Administrator may consult with counsel and any advice
of its counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation hereto,
at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee or the Securities Administrator, respectively, reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; the right of the Trustee
to perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable for other than
its
negligence or willful misconduct in the performance of any such
act;
(iv) neither
the Trustee nor the Securities Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and believed by it to
be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) prior
to
the occurrence of an Event of Default and after the curing or waiver of all
Events of Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or documents, unless requested in writing
to do so by the Majority Certificateholder; provided,
however,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a condition
to
such proceeding. If the Master Servicer fails to reimburse the Trustee in
respect of the reasonable expense of every such examination relating to the
Master Servicer, the Trustee shall be reimbursed by the Trust Fund;
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Securities
Administrator or the Master Servicer until such time as the Trustee may be
required to act as the Master Servicer pursuant to Section 7.02 hereof and
thereupon only for the acts or omissions of the Trustee as a successor Master
Servicer;
(vii) the
Trustee and the Securities Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, attorneys or a custodian, and shall not be responsible for
any
willful misconduct or negligence on the part of any agent, nominee, attorney
or
custodian appointed by the Trustee or the Securities Administrator in good
faith;
138
(viii) the
right
of the Trustee or the Securities Administrator to perform any discretionary
act
enumerated in this Agreement shall not be construed as a duty, and neither
the
Trustee nor the Securities Administrator shall be answerable for other than
its
negligence or willful misconduct in the performance of such act;
and
(ix) to
help
fight the funding of terrorism and money laundering activities, the Trustee
will
obtain, verify and record information that identifies individuals or entities
that establish a relationship or open an account with the Trustee. The Trustee
will ask for the name, address, tax identification number and other information
that will allow the Trustee to identify the individual or entity who is
establishing the relationship or opening the account. The Trustee may also
ask
for formation documents such as articles of incorporation, an offering
memorandum or other identifying documents to be provided.
SECTION
8.03. Trustee and the Securities Administrator Not Liable for Certificates
or
Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the authentication
of the Securities Administrator on the Certificates) shall be taken as the
statements of the Depositor or the Seller, and the neither Trustee nor the
Securities Administrator assumes responsibility for the correctness of the
same.
Neither the Trustee nor the Securities Administrator makes representations
or
warranties as to the validity or sufficiency of this Agreement or of the
Certificates (other than with respect to the Securities Administrator the
signature and authentication of the Securities Administrator on the
Certificates) or of any Mortgage Loan or related document or of MERS or the
MERS
System. The Trustee shall not be accountable for the use or application by
the
Master Servicer or the Securities Administrator, or for the use or application
of any funds paid to the Master Servicer in respect of related Mortgage Loans
or
deposited in or withdrawn from the Distribution Account by the Master Servicer
or the Securities Administrator. Neither the Trustee nor the Securities
Administrator shall at any time have any responsibility or liability for or
with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust Fund or its ability to generate the payments to be distributed
to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and
enforceability of any hazard insurance thereon (other than if the Trustee shall
assume the duties of the Master Servicer pursuant to Section 7.02 hereof);
the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume
the
duties of the Master Servicer pursuant to Section 7.02 hereof); the compliance
by the Depositor or the Seller with any warranty or representation made under
this Agreement or in any related document or the accuracy of any such warranty
or representation prior to the Trustee’s receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies
by
or at the direction of the Master Servicer or any loss resulting therefrom,
it
being understood that the Trustee shall remain responsible for any Trust Fund
property that it may hold in its individual capacity and the Securities
Administrator shall remain responsible for any Trust Fund property that it
may
hold in its individual capacity; the acts or omissions of the Master Servicer
(other than as to the Securities Administrator, if it is also the Master
Servicer, and as to the Trustee, if the Trustee shall assume the duties of
the
Master Servicer pursuant to Section 7.02 hereof, and then only for the acts
or
omissions of the Trustee as the successor Master Servicer), or any acts or
omissions of, any Servicer or any Mortgagor; any action of the Master Servicer
(other than as to the Securities Administrator, if it is the Master Servicer,
and as to the Trustee, if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 7.02 hereof), or in the case of the Trustee the
Securities Administrator or any Servicer taken in the name of the Trustee;
the
failure of the Master Servicer or any Servicer to act or perform any duties
required of it as agent or on behalf of the Trustee or the Trust Fund hereunder;
or any action by the Trustee taken at the instruction of the Master Servicer
(other than if the Trustee shall assume the duties of the Master Servicer
pursuant to Section 7.02 hereof, and then only for the actions of the Trustee
as
the successor Master Servicer); provided,
however,
that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties under this Agreement, including, without limitation, the Trustee’s duty
to review the Mortgage Files, if so required pursuant to Section 2.01 of this
Agreement.
139
SECTION
8.04. Trustee, Custodian, Master Servicer and Securities Administrator May
Own
Certificates.
The
Trustee, the Custodian, the Master Servicer and the Securities Administrator
in
their respective individual capacities, or in any capacity other than as
Trustee, Custodian, Master Servicer or Securities Administrator hereunder,
may
become the owner or pledgee of any Certificates with the same rights they would
have if they were not Trustee, Custodian, Master Servicer or Securities
Administrator, as applicable, and may otherwise deal with the parties
hereto.
SECTION
8.05. Trustee’s and Securities Administrator’s Fees and Expenses.
The
Trustee (including in its capacity as Custodian) shall be compensated by the
Master Servicer for its services hereunder on behalf of the Trust Fund in
accordance with the fee letter between the Master Servicer and the Trustee.
The
Trustee Fee shall paid from a portion of the Master Servicing Fee. The
Securities Administrator shall be compensated by the Master Servicer for its
services hereunder from a portion of the Master Servicing Fee. In addition,
the
Trustee and the Securities Administrator will be entitled to recover from the
Distribution Account pursuant to Section 4.05(a) all reasonable out-of-pocket
expenses, disbursements and advances and the expenses of the Trustee (including
for such purpose, any fees and expenses relating to its capacity as Custodian
hereunder to the extent not paid by MortgageIT) and the Securities
Administrator, respectively, including without limitation, in connection with
any Event of Default, any breach of this Agreement or any claim or legal action
(including any pending or threatened claim or legal action) incurred or made
by
the Trustee or the Securities Administrator, respectively, in the performance
of
its duties or the administration of the trusts hereunder or under the Yield
Maintenance Agreements (including the reasonable compensation, expenses and
disbursements of its counsel) except any such expense, disbursement or advance
as may arise from its negligence or intentional misconduct or which is
specifically designated herein as the responsibility of the Depositor, the
Seller, the Master Servicer, the Certificateholders or the Trust Fund hereunder
or thereunder. If funds in the Distribution Account are insufficient therefor,
the Trustee, the Custodian and the Securities Administrator shall recover such
expenses from future collections on the Mortgage Loans or as otherwise agreed
by
the Certificateholders. Such compensation and reimbursement obligation shall
not
be limited by any provision of law in regard to the compensation of a trustee
of
an express trust.
140
SECTION
8.06. Eligibility Requirements for Trustee and Securities
Administrator.
The
Trustee and Securities Administrator hereunder shall at all times be an entity
duly organized and validly existing under the laws of the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, each having a combined capital and surplus of at least $50,000,000
and (except with respect to the initial Trustee) a minimum long-term debt rating
in the third highest rating category by each Rating Agency and in each Rating
Agency’s two highest short-term rating categories, and subject to supervision or
examination by federal or state authority. If such entity publishes reports
of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06, the combined capital and surplus of such entity shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. The principal office of the Trustee (other than the
initial Trustee) shall be in a state with respect to which an Opinion of Counsel
has been delivered to such Trustee at the time such Trustee is appointed Trustee
to the effect that the Trust Fund will not be a taxable entity under the laws
of
such state. In case at any time the Trustee or the Securities Administrator
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee or the Securities Administrator, as applicable shall resign
immediately in the manner and with the effect specified in Section 8.07
hereof.
SECTION
8.07. Resignation or Removal of Trustee and Securities
Administrator.
The
Trustee and Securities Administrator may at any time resign and be discharged
from the trusts hereby created by giving written notice thereof to the
Depositor, the Seller, the Master Servicer and each Rating Agency. Upon
receiving such notice of resignation of the Trustee, the Depositor shall
promptly appoint a successor Trustee that meets the requirements in Section
8.06
or, in the case of notice of resignation of the Securities Administrator, the
Trustee (in consultation with the Depositor) shall promptly appoint a successor
Securities Administrator that meets the requirements in Section 8.06, in each
case, by written instrument, in duplicate, one copy of which instrument shall
be
delivered to each of the resigning Trustee or Securities Administrator, as
applicable, and one copy to the successor Trustee or successor Securities
Administrator, as applicable. If no successor Trustee or successor Securities
Administrator, as applicable, shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or Securities Administrator may petition any court of
competent jurisdiction for the appointment of a successor Trustee or Securities
Administrator, as applicable.
If
at any
time the Trustee or the Securities Administrator shall cease to be eligible
in
accordance with the provisions of Section 8.06 hereof or if at any time the
Trustee or the Securities Administrator shall be legally unable to act, or
shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator, as applicable, or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or the
Securities Administrator, as applicable, or of its property or affairs for
the
purpose of rehabilitation, conservation or liquidation, or if the Trustee (in
its capacity as Custodian) or the Securities Administrator fails to provide
an
assessment of compliance or an attestation report required under Section 3.16
within 15 calendar days of March 1 of each calendar year in which Exchange
Act
reports are required then the Depositor may remove the Trustee or the Trustee
may remove the Securities Administrator, as applicable. If the Depositor or
the
Trustee removes the Trustee or the Securities Administrator, respectively under
the authority of the immediately preceding sentence, the Depositor or the
Trustee shall promptly appoint a successor Trustee or successor Securities
Administrator that meets the requirements of Section 8.06, as applicable, by
written instrument, in triplicate, one copy of which instrument shall be
delivered to the Trustee or the Securities Administrator, as applicable, so
removed, one copy to the successor Trustee or successor Securities
Administrator, as applicable, and one copy to the Master Servicer.
141
The
Majority Certificateholders may at any time remove the Trustee or the Securities
Administrator by written instrument or instruments delivered to the Depositor
and the Trustee; the Depositor shall thereupon use its best efforts to appoint
a
successor Trustee or successor Securities Administrator, as applicable, in
accordance with this Section.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor Trustee or a successor Securities Administrator,
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee or a
successor Securities Administrator, as applicable, as provided in Section 8.08
hereof. If the Trustee or the Securities Administrator is removed pursuant
to
this Section 8.07, it shall be reimbursed any outstanding and unpaid fees and
expenses, and if removed under the authority of the immediately preceding
paragraph, the Trustee or the Securities Administrator shall also be reimbursed
any outstanding and unpaid costs and expenses.
Notwithstanding
anything to the contrary contained herein, in the event that the Master Servicer
resigns or is removed as Master Servicer hereunder, the Securities Administrator
shall have the right to resign immediately as Securities Administrator by giving
written notice to the Depositor and the Trustee, with a copy to each Rating
Agency.
SECTION
8.08. Successor Trustee and Successor Securities Administrator.
Any
successor Trustee or successor Securities Administrator appointed as provided
in
Section 8.07 hereof shall execute, acknowledge and deliver to the Depositor,
the
Seller and the Master Servicer and to its predecessor Trustee or Securities
Administrator an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee or Securities
Administrator shall become effective, and such successor Trustee or successor
Securities Administrator, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with like effect as if originally named as Trustee or
Securities Administrator. The Depositor, the Seller, the Master Servicer and
the
predecessor Trustee or Securities Administrator shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and
certainly vesting and confirming in the successor Trustee or Securities
Administrator, as applicable, all such rights, powers, duties and
obligations.
142
No
successor Trustee or Securities Administrator shall accept appointment as
provided in this Section 8.08 unless at the time of such acceptance such
successor Trustee or Securities Administrator shall be eligible under the
provisions of Section 8.06 hereof and the appointment of such successor Trustee
or Securities Administrator shall not result in a downgrading of the Senior
Certificates by either Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon
acceptance of appointment by a successor Trustee or Securities Administrator
as
provided in this Section 8.08, the successor Trustee or Securities Administrator
shall mail notice of the appointment of a successor Trustee or Securities
Administrator hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to each Rating Agency.
SECTION
8.09. Merger or Consolidation of Trustee or Securities
Administrator.
Any
entity into which the Trustee or the Securities Administrator may be merged
or
converted or with which it may be consolidated, or any entity resulting from
any
merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any entity succeeding to the corporate trust
business of the Trustee or the Securities Administrator, shall be the successor
of the Trustee or the Securities Administrator, as applicable, hereunder,
provided such entity shall be eligible under the provisions of Section 8.06
and
8.08 hereof, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund
or any Mortgaged Property may at the time be located, the Depositor and the
Trustee acting jointly shall have the power, and the Trustee shall, and shall
instruct the Depositor to, execute and deliver all instruments to appoint one
or
more Persons, approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, at the
expense of the Trust Fund, 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, and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Trustee may
consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereof, and no notice to Certificateholders of the appointment
of
any co-trustee or separate trustee shall be required under Section 8.08
hereof.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the Trust 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;
143
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Depositor and the Trustee, acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
SECTION
8.11. Limitation of Liability.
The
Certificates are executed by the Securities Administrator, not in its individual
capacity but solely as Securities Administrator on behalf of the Trust Fund,
in
the exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Securities Administrator in the Certificates is made and intended not as a
personal undertaking or agreement by the Trustee but is made and intended for
the purpose of binding only the Trust Fund.
SECTION
8.12. Trustee May Enforce Claims Without Possession of
Certificates.
(a) All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee (for the avoidance of doubt, in its
individual capacity and as Trustee on behalf of the Trust Fund), its agents
and
counsel, be for the ratable benefit or the Certificateholders in respect of
which such judgment has been recovered.
144
(b) The
Trustee shall afford the Seller, the Depositor and each Certificateholder upon
reasonable notice during normal business hours at its Corporate Trust Office
or
other office designated by the Trustee, access to all records maintained by
the
Trustee in respect of its duties hereunder and access to officers of the Trustee
responsible for performing such duties. Upon request, the Trustee shall furnish
the Depositor and any requesting Certificateholder with its most recent audited
financial statements. The Trustee shall cooperate fully with the Seller, the
Depositor and such Certificateholder and shall, subject to the first sentence
of
this Section 8.12(b), make available to the Seller, the Depositor and such
Certificateholder for review and copying such books, documents or records as
may
be requested with respect to the Trustee’s duties hereunder. The Seller, the
Depositor and the Certificateholders shall not have any responsibility or
liability for any action or failure to act by the Trustee and are not obligated
to supervise the performance of the Trustee under this Agreement or
otherwise.
(c) The
Securities Administrator shall afford the Seller, the Depositor, the Trustee
and
each Certificateholder upon reasonable notice during normal business hours
at
its offices at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or other office
designated by the Securities Administrator, access to all records maintained
by
the Securities Administrator in respect of its duties hereunder and access
to
officers of the Securities Administrator responsible for performing such duties.
Upon request, the Securities Administrator shall furnish the Depositor and
any
requesting Certificateholder with its most recent audited financial statements.
The Securities Administrator shall cooperate fully with the Seller, the
Depositor, the Trustee and such Certificateholder and shall, subject to the
first sentence of this Section 8.12(c), make available to the Seller, the
Depositor and such Certificateholder for review and copying such books,
documents or records as may be requested with respect to the Securities
Administrator’s duties hereunder. The Seller, the Depositor, the Trustee and the
Certificateholders shall not have any responsibility or liability for any action
or failure to act by the Securities Administrator and are not obligated to
supervise the performance of the Securities Administrator under this Agreement
or otherwise.
SECTION
8.13. Suits for Enforcement.
In
case
an Event of Default or a default by the Depositor hereunder shall occur and
be
continuing, the Trustee may proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement, as the case may be,
by a
suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement
or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee,
being
advised by counsel, and subject to the foregoing, shall deem most effectual
to
protect and enforce any of the rights of the Trustee and the
Certificateholders.
145
SECTION
8.14. Waiver of Bond Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust Fund, or any part thereof,
may be located that the Trustee post a bond or other surety with any court,
agency or body whatsoever.
SECTION
8.15. Waiver of Inventory, Accounting and Appraisal Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust Fund, or any part thereof,
may be located that the Trustee file any inventory, accounting or appraisal
of
the Trust Fund with any court, agency or body at any time or in any manner
whatsoever.
SECTION
8.16. Appointment of Custodians.
The
Trustee may appoint one or more custodians to hold all or a portion of the
related Mortgage Files as agent for the Trustee, by entering into a custodial
agreement. The custodian may at any time be terminated and a substitute
custodian appointed therefor by the Trustee. Subject to this Article VIII,
the
Trustee agrees to comply with the terms of each custodial agreement and to
enforce the terms and provisions thereof against the custodian for the benefit
of the Certificateholders having an interest in any Mortgage File held by such
custodian. Each custodian shall be a depository institution or trust company
subject to supervision by federal or state authority, shall have combined
capital and surplus of at least $15,000,000 and shall be qualified to do
business in the jurisdiction in which it holds any Mortgage File. The Seller
shall pay from its own funds, without any right to reimbursement, the fees,
costs and expenses of each custodian (including the costs of custodian’s
counsel).
ARTICLE
IX
REMIC
ADMINISTRATION
SECTION
9.01. REMIC Administration.
(a) As
set
forth in the Preliminary Statement to this Agreement, two REMIC elections shall
be made by the Trust Fund. The Trustee shall sign and the Securities
Administrator shall file such elections on Form 1066 or other appropriate
federal tax or information return for the taxable year ending on the last day
of
the calendar year in which the Certificates are issued. The regular interests
in
each REMIC created hereunder and the related residual interest shall be as
designated in the Preliminary Statement. Following the Closing Date, the
Securities Administrator shall apply to the Internal Revenue Service for an
employer identification number for each REMIC created hereunder by means of
a
Form SS-4 or other acceptable method and shall file a Form 8811 with the
Internal Revenue Service.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC created
hereunder within the meaning of section 860G(a)(9) of the Code.
146
(c) Except
as
provided in subsection (d) of this Section 9.01, the Securities Administrator
shall pay any and all tax related expenses (not including taxes) of each REMIC
created hereunder, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to any such REMIC that involve the Internal Revenue Service or state
tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Securities Administrator in fulfilling its duties hereunder
(including the Securities Administrator’s duties as tax return
preparer).
(d) The
Securities Administrator shall prepare and file, and the Trustee shall sign
all
of the federal and state tax and information returns of each REMIC created
hereunder (collectively, the “Tax
Returns”)
as the
direct representative. The expenses of preparing and filing such Tax Returns
shall be borne by the Securities Administrator. Notwithstanding the foregoing,
the Securities Administrator shall have no obligation to prepare, file or
otherwise deal with partnership tax information or returns. In the event that
partnership tax information or returns are required by the Internal Revenue
Service, the Seller, at its own cost and expense, will prepare and file all
necessary returns.
The
Internal Revenue Service has issued OID regulations under Sections 1271 to
1275
of the Code generally addressing the treatment of debt instruments issued with
original issue discount. Under those regulations, debt issued to one Person
generally is aggregated in determining if there is OID. Because certain Classes
of Regular Certificates are expected to be issued to one Person (which intends
to continue to hold the Regular Certificates indefinitely and, in any case,
for
at least 30 days), the Securities Administrator, on behalf of the Trust Fund,
intends to determine the existence and amount of any OID as if those Classes
of
Regular Certificates were one debt instrument.
(e) The
Securities Administrator shall perform on behalf of each REMIC created hereunder
all reporting and other tax compliance duties that are the responsibility of
each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, if required by the Code, the REMIC Provisions
or other such guidance, the Securities Administrator, shall provide (i) to
the
Treasury or other governmental authority such information as is necessary for
the application of any tax relating to the transfer of the Class A-R Certificate
to any disqualified organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC
Provisions.
(f) Each
of
the Trustee and the Securities Administrator (to the extent that the affairs
of
the REMICs are within such Person’s control and the scope of its specific
responsibilities under the Agreement) and the Holders of Certificates shall
take
any action or cause any REMIC created hereunder to take any action necessary
to
create or maintain the status of the REMIC created hereunder as a REMIC under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status. None of the Trustee, the Securities Administrator or
the
Holder of a Residual Certificate shall take any action, cause any REMIC created
hereunder to take any action or fail to take (or fail to cause to be taken)
any
action that, under the REMIC Provisions, if taken or not taken, as the case
may
be, could result in an Adverse REMIC Event unless the Trustee and the Securities
Administrator have received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will
not
result in an Adverse REMIC Event. In addition, prior to taking any action with
respect to any REMIC created hereunder or the assets therein, or causing any
such REMIC to take any action which is not expressly permitted under the terms
of this Agreement, any Holder of the Class A-R Certificate will consult with
the
Securities Administrator or its designees, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
such
REMIC, and no such Person shall take any such action or cause any REMIC created
hereunder to take any such action as to which the Securities Administrator
has
advised it in writing that an Adverse REMIC Event could occur.
147
(g) Each
Holder of the Class A-R Certificate shall pay when due any and all taxes imposed
on any REMIC created hereunder by federal or state governmental authorities.
To
the extent that such Trust Fund taxes are not paid by the Class A-R
Certificateholder, the Securities Administrator shall pay any remaining REMIC
taxes out of current or future amounts otherwise distributable to the Holder
of
the Class A-R Certificate or, if no such amounts are available, out of other
amounts held in the Distribution Account, and shall reduce amounts otherwise
payable to holders of regular interests in such REMIC, as the case may
be.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain books
and records with respect to each REMIC created hereunder on a calendar year
and
on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither
the Trustee nor the Securities Administrator shall enter into any arrangement
by
which any REMIC created hereunder will receive a fee or other compensation
for
services.
(k) The
Securities Administrator shall treat each Basis Risk Reserve Fund and the Yield
Maintenance Account as outside reserve funds within the meaning of Treasury
Regulation Section 1.860G-2(h), and not as assets of any REMIC. The Holders
of
the Class 1-X Certificates are the owners of the Group 1 Basis Risk Reserve
Fund
and the portion of the Yield Maintenance Account attributable to Yield
Maintenance Agreements related to Group 1 Certificates, the Holders of the
Class
2-X Certificates are the owners of the Group 2A Basis Risk Reserve Fund and
the
portion of the Yield Maintenance Account attributable to Yield Maintenance
Agreements related to Group 2 Certificates, and the Holders of the Class 2-X-B
Certificates are the owners of the Group 2B Basis Risk Reserve Fund. The
Securities Administrator shall treat the rights of the Holders of the LIBOR
Certificates to receive distributions to cover Basis Risk Shortfalls as payments
under a cap contract written by the Holders of the Class 1-X, Class 2-X and
Class 2-X-B Certificates, as applicable, in favor of the related Holders of
the
LIBOR Certificates. Thus, the LIBOR Certificates shall be treated as
representing not only ownership of regular interests in a REMIC, but also
ownership of an interest in an interest rate cap contract. For purposes of
determining the issue prices of the Certificates, the interest rate cap
contracts shall be assumed to have a zero value unless and until required
otherwise by an applicable taxing authority.
148
SECTION
9.02. Prohibited Transactions and Activities.
Neither
the Depositor nor the Trustee shall sell, dispose of, or substitute for any
of
the Mortgage Loans, except in a disposition pursuant to (i) the foreclosure
of a
Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination
of the REMICs created hereunder pursuant to Article X of this Agreement, (iv)
a
substitution pursuant to Article II hereof or (v) a repurchase of Mortgage
Loans
as contemplated hereunder, nor acquire any assets for any REMIC created
hereunder, nor sell or dispose of any investments in the Distribution Account
for gain, nor accept any contributions to any REMIC created hereunder after
the
Closing Date, unless it has received an Opinion of Counsel (at the expense
of
the party causing such sale, disposition, or substitution) that such
disposition, acquisition, substitution, or acceptance will not result in an
Adverse REMIC Event.
ARTICLE
X
TERMINATION
SECTION
10.01. Termination.
(a) The
respective obligations and responsibilities of the Seller, the Depositor, the
Master Servicer, the Securities Administrator and the Trustee created hereby
(other than the obligation of the Securities Administrator to make certain
payments to Certificateholders after the final Distribution Date and the
obligation of the Master Servicer to send certain notices as hereinafter set
forth) shall terminate upon notice to the Trustee and the Securities
Administrator upon the earliest of (i) the Distribution Date on which the
Class Principal Balance of each Class of Certificates has been reduced to zero,
(ii) the final payment or other liquidation of the last Mortgage Loan,
(iii) the optional purchase of the Mortgage Loans as described in the
following paragraph and (iv) the Latest Possible Maturity Date.
Notwithstanding
the foregoing, in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of
St.
James’s, living on the date hereof.
MortgageIT
(solely in its capacity as a Servicer of the Mortgage Loans) may, at its option,
terminate this Agreement on any Distribution Date on or after the Optional
Call
Date, by purchasing, on such Distribution Date, all of the outstanding Mortgage
Loans and REO Properties at a price equal to the sum of (i) the outstanding
Stated Principal Balances of the Mortgage Loans (other than in respect of REO
Properties), (ii) the lesser of (x) the appraised value of any REO Property
as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Depositor at the expense of the Depositor less the
good faith estimate of the Master Servicer or the related Servicer, as
applicable, of Liquidation Expenses to be incurred in connection with its
disposal and (y) the Principal Balance of each Mortgage Loan related to any
REO
Property and (iii) in all cases, accrued and unpaid interest thereon at the
applicable Loan Rate through the end of the Due Period preceding the final
Distribution Date, plus unreimbursed Servicing Advances and Advances and any
unpaid Servicing Fees allocable to such Mortgage Loans and REO Properties,
plus
all amounts, if any, then due and owing to the Trustee, the Master Servicer
and
the Securities Administrator (the “Termination
Price”).
149
In
addition, ▇▇▇▇▇ Fargo Bank, N.A. (solely in its capacity as the Master Servicer)
may, at its option, terminate this Agreement on any Distribution Date on which
the aggregate of the Stated Principal Balances of the Mortgage Loans as of
the
end of the immediately preceding Due Period is equal to or less than 1% of
the
Cut-Off Date Aggregate Principal Balance, by purchasing, on such Distribution
Date, all of the outstanding Mortgage Loans and REO Properties at a price equal
to Termination Price; provided,
that
the
right of ▇▇▇▇▇ Fargo Bank, N.A. to repurchase all the Mortgage Loans shall
be
exercisable only if MortgageIT has not elected to exercise its optional
termination right on or before such date.
(b) Notice
of
any termination pursuant to the second paragraph of Section 10.01(a), specifying
the Distribution Date (which shall be a date that would otherwise be a
Distribution Date) upon which the Certificateholders may surrender their
Certificates to the Securities Administrator for payment of the final
distribution and cancellation, shall be given promptly by the Securities
Administrator upon the Securities Administrator receiving notice of such date
from the Master Servicer by letter to the Certificateholders mailed not earlier
than the 10th day and not later than the 19th day of the month of such
final distribution specifying (1) the Distribution Date upon which final
distributions on the Certificates will be made upon presentation and surrender
of such Certificates at the office or agency of the Securities Administrator
therein designated, (2) the amount of any such final distribution and
(3) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distributions being made only upon presentation and surrender
of
the Certificates at the office or agency of the Securities Administrator therein
specified.
(c) Upon
presentation and surrender of the Certificates, the Securities Administrator
shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed
to
such Holders in accordance with the provisions of Section 4.01 hereof for
such Distribution Date.
(d) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final Distribution Date, the
Securities Administrator shall promptly following such date cause all funds
in
the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate account for the
benefit of such Certificateholders, and the Securities Administrator shall
give
a second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within nine months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Master Servicer shall
be
entitled to all unclaimed funds and other assets which remain subject hereto,
and the Securities Administrator upon transfer of such funds shall be discharged
of any responsibility for such funds, and the Certificateholders shall look
to
the Master Servicer for payment.
150
SECTION
10.02. Additional Termination Requirements.
(a) In
the
event the purchase option provided in Section 10.01 is exercised, the Trust
Fund shall be terminated in accordance with the following additional
requirements:
(i) The
Trustee at the direction of the Securities Administrator shall sell any
remaining assets of the Trust Fund to MortgageIT or its designee or ▇▇▇▇▇ Fargo
Bank, N.A. or its designee, as the case may be, for cash and, within 90 days
of
such sale, shall distribute to (or credit to the account of) the
Certificateholders the proceeds of such sale together with any cash on hand
(less amounts retained to meet claims) in complete liquidation of the Trust
Fund, and each REMIC created hereunder; and
(ii) The
Securities Administrator shall attach a statement to the final federal income
tax return for each REMIC created hereunder stating that pursuant to Treasury
Regulation §1.860F-1, the first day of the 90 day liquidation period for such
REMIC was the date on which the Trustee sold the assets of the Trust Fund and
shall satisfy all requirements of a qualified liquidation under Section 860F
of
the Code and any regulations thereunder as evidenced by an Opinion of Counsel
delivered to the Trustee and the Securities Administrator obtained at the
expense of the Seller.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee and the Securities Administration as their attorneys in fact to
undertake the foregoing steps.
ARTICLE
XI
DISPOSITION
OF TRUST FUND ASSETS
SECTION
11.01. Disposition of Trust Fund Assets.
Neither
the Trust Fund, nor this Agreement, may be terminated or voided, or any
disposition of the assets of the Trust Fund effected, other than in accordance
with the terms hereof, except to the extent that Holders representing no less
than the entire beneficial ownership interest of the Certificates have so
assented.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01. Amendment.
This
Agreement may be amended from time to time by Seller, the Depositor, the Master
Servicer, the Securities Administrator and the Trustee, and without the consent
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct
or supplement any provisions herein which may be defective or inconsistent
with
any other provisions herein, (iii) to make any other provisions with
respect to matters or questions arising under this Agreement, which shall not
be
inconsistent with the provisions of this Agreement, or (iv) to conform the
terms
hereof to the description thereof provided in the Prospectus; provided,
however,
that
any such action listed in clause (i) through (iii) above shall be
deemed not to adversely affect in any material respect the interests of any
Certificateholder, if evidenced by (i) written notice to the Depositor, the
Seller, the Master Servicer, the Securities Administrator and the Trustee from
each Rating Agency that such action will not result in the reduction or
withdrawal of the rating of any outstanding Class of Certificates with respect
to which it is a Rating Agency or (ii) an Opinion of Counsel stating that
such amendment shall not adversely affect in any material respect the interests
of any Certificateholder, is permitted by the Agreement and all the conditions
precedent, if any have been complied with, delivered to the Master Servicer,
the
Securities Administrator and the Trustee.
151
In
addition, this Agreement may be amended from time to time by Seller, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
and
with the consent of the Majority Certificateholders for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided,
however,
that no
such amendment or waiver shall (x) reduce in any manner the amount of, or
delay the timing of, payments on the Certificates that are required to be made
on any Certificate without the consent of the Holder of such Certificate,
(y) adversely affect in any material respect the interests of the Holders
of any Class of Certificates in a manner other than as described in clause
(x)
above, without the consent of the Holders of Certificates of such Class
evidencing at least a 66% Percentage Interest in such Class, or (z) reduce
the percentage of Voting Rights required by clause (y) above without the
consent of the Holders of all Certificates of such Class then outstanding.
Upon
approval of an amendment, a copy of such amendment shall be sent to each Rating
Agency.
Notwithstanding
any provision of this Agreement to the contrary, the Trustee shall not consent
to any amendment to this Agreement unless it shall have first received an
Opinion of Counsel, delivered by and at the expense of the Person seeking such
Amendment (unless such Person is the Trustee, in which case the Trustee shall
be
entitled to be reimbursed for such expenses by the Trust Fund pursuant to
Section 8.05 hereof), to the effect that such amendment will not result in
the
imposition of a tax on any REMIC created hereunder pursuant to the REMIC
Provisions or cause any REMIC created hereunder to fail to qualify as a REMIC
at
any time that any Certificates are outstanding and that the amendment is being
made in accordance with the terms hereof, such amendment is permitted by this
Agreement and all conditions precedent, if any, have been complied
with.
Promptly
after the execution of any such amendment the Trustee shall furnish, at the
expense of the Person that requested the amendment if such Person is the Seller
(but in no event at the expense of the Securities Administrator or the Trustee),
otherwise at the expense of the Trust Fund, a copy of such amendment and the
Opinion of Counsel referred to in the immediately preceding paragraph to the
Master Servicer and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to
such reasonable regulations as the Securities Administrator may
prescribe.
152
The
Trustee and Securities Administrator may, but shall not be obligated to, enter
into any amendment pursuant to this 12.01 Section that affects its rights,
duties and immunities under this Agreement or otherwise.
SECTION
12.02. Recordation of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Trustee at the expense of the Trust
Fund,
but only upon direction of Certificateholders accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
SECTION
12.03. Limitation on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate
this Agreement or the Trust Fund, (ii) entitle such Certificateholder’s
legal representatives or heirs to claim an accounting or to take any action
or
proceeding in any court for a partition or winding up of the Trust Fund or
(iii) otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust
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
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder, the Securities Administrator and the Trustee, that no one
or
more Holders of Certificates shall have any right in any manner whatever by
virtue of any provision of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of such Certificates, or to obtain or seek
to
obtain priority over or preference to any other such Holder, which priority
or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 12.03, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at
law
or in equity.
153
SECTION
12.04. Governing Law; Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION
12.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, or by express delivery service, to (a) in the
case
of the Seller, to MortgageIT, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Vice President—Servicing (telecopy number (212) 272−5591), or
such other address or telecopy number as may hereafter be furnished to the
Depositor, the Master Servicer, the Securities Administrator, and the Trustee
in
writing by the Seller, (b) in the case of the Trustee, to the Corporate Trust
Office or such other address or telecopy number as may hereafter be furnished
to
the Depositor, the Master Servicer, the Securities Administrator, and the
Seller
in writing by the Trustee, (c) in the case of the Depositor, to Greenwich
Capital Acceptance, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Legal (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), or such other address
or
telecopy number as may be furnished to the Seller, the Master Servicer, the
Securities Administrator, and the Trustee in writing by the Depositor; and
(d)
in the case of the Master Servicer or Securities Administrator, for certificate
transfer purposes, at its Corporate Trust Office and for all other purposes
at
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or for overnight delivery, at ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: MortgageIT Trust 2006-1),
Facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address or telecopy number as
may
be furnished to the Depositor, the Seller, the Securities Administrator,
and the
Trustee in writing by the Master Servicer. Any notice required or permitted
to
be mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register.
Notice of any Event of Default shall be given by telecopy and by certified
mail.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have duly been given when mailed, whether or not
the
Certificateholder receives such notice. A copy of any notice required to
be
telecopied hereunder shall also be mailed to the appropriate party in the
manner
set forth above.
Any
notice required to be delivered by the Securities Administrator to the Depositor
pursuant to Section 3.19 may be delivered by the Securities Administrator,
notwithstanding any provision of this Agreement to the contrary, to Greenwich
Capital Acceptance, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ (telephone number (▇▇▇) ▇▇▇-▇▇▇▇; fax number (▇▇▇)
▇▇▇-▇▇▇▇; e-mail ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇), or such other address or telecopy
number
as may be furnished to the Securities Administrator in writing by the
Depositor.
154
SECTION
12.06. Severability of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
12.07. Article and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
12.08. Notice to the Rating Agencies.
(a) The
Securities Administrator shall be obligated to use its best reasonable efforts
promptly to provide notice to the Rating Agencies with respect to each of the
following of which a Responsible Officer of the Securities Administrator has
actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Event of Default that has not been cured or
waived;
(iii) the
resignation or termination of the Master Servicer, the Securities Administrator
or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class; and
(v) any
change in the location of any Account.
(b) In
addition, the Securities Administrator shall promptly furnish to the Rating
Agencies copies of each Statement to Certificateholders described in Section
5.04 hereof; if the Trustee is acting as a successor Master Servicer pursuant
to
Section 7.02 hereof, the Trustee shall notify the Rating Agencies of any event
that would result in the inability of the Trustee to make Advances as successor
Master Servicer and
the
Master Servicer shall promptly furnish to each Rating Agency copies of the
following:
(i) each
annual statement as to compliance described in Section 3.17 hereof;
(ii) each
annual assessment of compliance and attestation report described in Section
3.16
hereof; and
(iii) each
notice delivered pursuant to Section 5.05(b) hereof which relates to the fact
that the Master Servicer has not made an Advance.
155
(c) All
notices to the Rating Agencies provided for in this Agreement shall be in
writing and sent by first class mail, telecopy or overnight courier, as
follows:
If
to
Moody’s, to:
▇▇▇▇▇’▇
Investors Service, Inc.
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Residential Mortgages
If
to
S&P, to:
Standard
& Poor’s Ratings Services,
a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION
12.09. Further Assurances.
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
SECTION
12.10. Benefits of Agreement.
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders and the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
SECTION
12.11. Acts of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and the Seller. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust
Fund, if made in the manner provided in this Section 12.11.
156
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Trust Fund
in reliance thereon, whether or not notation of such action is made upon such
Certificate.
SECTION
12.12. Successors and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
SECTION
12.13. Derivative Transactions.
(a) At
the
direction of the Seller, the Securities Administrator shall, on behalf of the
Trust Fund, enter into derivative contracts (in a form reasonably acceptable
to
the Securities Administrator) for the benefit of the Certificates; provided,
however,
the
counterparty to such derivative contract shall not be an Affiliate of the
Depositor. Any acquisition of such derivative contract shall be accompanied
by
(i) an appropriate amendment to this Agreement, (ii) any Opinion of Counsel
required by Section 12.01 and (iii) a REMIC Opinion.
(b) All
collections, proceeds and other amounts in respect of such derivative contracts
payable by the derivative counterparty shall be distributed to the Certificates
on the Distribution Date following receipt thereof by the Securities
Administrator.
(c) Any
derivative contract that provides for any payment obligation on the part of
the
Trust Fund must (i) be without recourse to the assets of the Trust Fund, (ii)
contain a non-petition covenant provision from the derivative counterparty,
(iii) limit payment dates thereunder for payments, if any, by the Trust Fund
to
Distribution Dates (iv) contain a provision limiting any cash payments due
to
the derivative counterparty on any day under such derivative contract solely
to
funds available therefor in the Distribution Account available to make payments
to the Certificateholders on such Distribution Date, and (v) provide for copies
of all notices and correspondence to be provided to the Securities
Administrator, the Trustee and the Depositor.
(d) Each
derivative contract must (i) provide for the direct payment of any amounts
by
the derivative counterparty thereunder to the Distribution Account at least
one
Business Day prior to the related Distribution Date, (ii) contain an assignment
of all of the Trust Fund’s rights (but none of its obligations) under such
derivative contract to the Trustee on behalf the Certificateholders and shall
include an express consent to the derivative counterparty to such assignment,
(iii) provide that in the event of the occurrence of an Event of Default, such
derivative contract shall terminate upon the direction of a majority of the
Voting Rights of the Certificates, and (iv) prohibit the derivative counterparty
from “setting-off’ or “netting” other obligations of the Trust Fund against such
derivative counterparty’s payment obligations thereunder.
157
(e) The
Seller shall determine, in its sole discretion, whether any derivative contract
conforms to the requirements of Section 12.13(c) and (d).
(f) Neither
the Seller nor the Depositor shall have any direct or indirect obligation under
the derivative contracts.
SECTION
12.14. Provision of Information.
For
so
long as any of the Certificates of any Class are “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, the Depositor agrees
to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder
or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act.
The
Securities Administrator shall provide to any person to whom a Prospectus was
delivered by Greenwich Capital Markets, Inc. (as identified by Greenwich Capital
Markets, Inc.), upon the request of such person specifying the document or
documents requested (and certifying that it is a Person entitled hereunder),
(i)
a copy (excluding exhibits) of any report on Form 8-K, Form 10-D or Form 10-K
filed with the Securities and Exchange Commission pursuant to this Agreement
and
(ii) a copy of any other document incorporated by reference in the Prospectus
(to the extent in the Securities Administrator’s possession). Any reasonable
out-of-pocket expenses incurred by the Securities Administrator in providing
copies of such documents shall be reimbursed by the Seller.
158
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized, all as of the day and
year first above written.
|
GREENWICH
CAPITAL
ACCEPTANCE, INC.,
as
Depositor
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||
|
Title:
Senior Vice President
|
||
| MORTGAGEIT, INC., as Seller | ||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Title: General Counsel and Secretary | ||
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Master
Servicer
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Assistant Vice President | ||
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Securities
Administrator
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Assistant Vice President | ||
|
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee and Custodian
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Title: Vice President | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| STATE OF CONNECTICUT | ) | |||
| ) ss.: | ||||
| COUNTY OF FAIRFIELD | ) |
On
the
______ day of February 2006, before me, a notary public in and for said State,
personally appeared _________known to me to be a ___________of Greenwich Capital
Acceptance, Inc., a Delaware corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| Notary Public |
| STATE OF NEW YORK | ) | |||
| ) ss.: | ||||
| COUNTY OF __________ |
)
|
On
the
_____ day
of
February 2006, before me, a notary public in and for said State, personally
appeared ___________________ known to me to be a ___________________ of
MortgageIT, Inc., a New York corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| Notary Public |
| STATE OF | ) | |||
| ) ss.: | ||||
| COUNTY OF | ) |
On
the
______ day of February 2006, before me, a notary public in and for said State,
personally appeared _________________________ known to me to be a
_______________________ of ▇▇▇▇▇ Fargo Bank, N.A. that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| Notary Public |
| STATE OF | ) | |||
| ) ss.: | ||||
| COUNTY OF | ) |
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| Notary Public |
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE