STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, WELLS FARGO BANK, N.A., as Master Servicer and Securities Administrator CLAYTON FIXED INCOME SERVICES INC., as Credit Risk Manager, and U.S. BANK NATIONAL ASSOCIATION, as Trustee TRUST AGREEMENT...
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor,
▇▇▇▇▇
FARGO BANK, N.A., as
Master
Servicer and Securities Administrator
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC., as Credit Risk Manager,
and
U.S.
BANK
NATIONAL ASSOCIATION, as Trustee
___________________________
Dated
as
of August 1, 2006
___________________________
STRUCTURED
ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
2006-BC2
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
||
|
Section
1.01.
|
Definitions.
|
15
|
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
61
|
|
Section
1.03.
|
Calculations
Respecting Accrued Interest.
|
61
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
||
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
61
|
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
66
|
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
67
|
|
Section
2.04.
|
Discovery
of Breach.
|
69
|
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
70
|
|
Section
2.06.
|
Grant
Clause.
|
71
|
|
ARTICLE
III THE CERTIFICATES
|
||
|
Section
3.01.
|
The
Certificates.
|
72
|
|
Section
3.02.
|
Registration.
|
74
|
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
74
|
|
Section
3.04.
|
Cancellation
of Certificates.
|
81
|
|
Section
3.05.
|
Replacement
of Certificates.
|
81
|
|
Section
3.06.
|
Persons
Deemed Owners.
|
81
|
|
Section
3.07.
|
Temporary
Certificates.
|
81
|
|
Section
3.08.
|
Appointment
of Paying Agent.
|
82
|
|
Section
3.09.
|
Book-Entry
Certificates.
|
83
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
||
|
Section
4.01.
|
Certificate
Account.
|
84
|
|
Section
4.02.
|
Application
of Funds in the Certificate Account.
|
87
|
|
Section
4.03.
|
Reports
to Certificateholders.
|
89
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
||
|
Section
5.01.
|
Distributions
Generally.
|
93
|
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
94
|
|
Section
5.03.
|
Allocation
of Losses.
|
108
|
|
Section
5.04.
|
Advances
by Master Servicer and Servicers .
|
109
|
|
Section
5.05.
|
Compensating
Interest Payments.
|
109
|
|
Section
5.06.
|
Basis
Risk Reserve Fund.
|
109
|
|
Section
5.07.
|
Supplemental
Interest Trust.
|
110
|
|
Section
5.08.
|
Rights
of Swap Counterparty.
|
112
|
|
Section
5.09.
|
Termination
Receipts.
|
112
|
i
|
ARTICLE
VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS
OF
DEFAULT
|
||
|
Section
6.01.
|
Duties
of Trustee and Securities Administrator.
|
114
|
|
Section
6.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
117
|
|
Section
6.03.
|
Trustee
and Securities Administrator Not Liable for Certificates.
|
118
|
|
Section
6.04.
|
Trustee
and the Securities Administrator May Own Certificates.
|
119
|
|
Section
6.05.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
119
|
|
Section
6.06.
|
Resignation
and Removal of Trustee and the Securities Administrator.
|
119
|
|
Section
6.07.
|
Successor
Trustee and Successor Securities Administrator.
|
121
|
|
Section
6.08.
|
Merger
or Consolidation of Trustee or the Securities
Administrator.
|
122
|
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
122
|
|
Section
6.10.
|
Authenticating
Agents.
|
124
|
|
Section
6.11.
|
Indemnification
of Trustee and Securities Administrator.
|
125
|
|
Section
6.12.
|
Fees
and Expenses of Securities Administrator, Trustee and
Custodians.
|
126
|
|
Section
6.13.
|
Collection
of Monies.
|
126
|
|
Section
6.14.
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
127
|
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
131
|
|
Section
6.16.
|
Waiver
of Defaults.
|
131
|
|
Section
6.17.
|
Notification
to Holders.
|
132
|
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
132
|
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
132
|
|
Section
6.20.
|
Preparation
of Tax Returns and Other Reports.
|
133
|
|
Section
6.21.
|
Reporting
Requirements of the Commission
|
140
|
|
Section
6.22.
|
No
Merger.
|
140
|
|
Section
6.23.
|
Indemnification
by the Securities Administrator.
|
140
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
||
|
Section
7.01.
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
|
141
|
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC 1
Uncertificated Regular Interests.
|
143
|
|
Section
7.03.
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests.
|
144
|
|
Section
7.04.
|
Optional
Repurchase Right.
|
145
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
||
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
146
|
|
Section
8.02.
|
Access
to List of Holders.
|
147
|
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
147
|
ii
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS; CREDIT RISK
MANAGER
|
||
|
Section
9.01.
|
Duties
of the Master Servicer.
|
148
|
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
|
149
|
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
149
|
|
Section
9.04.
|
Power
to Act; Procedures.
|
150
|
|
Section
9.05.
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
152
|
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
153
|
|
Section
9.07.
|
Termination
of Servicing Agreements; Successor Servicers.
|
153
|
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
154
|
|
Section
9.09.
|
No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
|
155
|
|
Section
9.10.
|
Assumption
of Servicing Agreement by Securities Administrator.
|
155
|
|
Section
9.11.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
155
|
|
Section
9.12.
|
Release
of Mortgage Files.
|
156
|
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
157
|
|
Section
9.14.
|
Representations
and Warranties of the Master Servicer.
|
158
|
|
Section
9.15.
|
Opinion.
|
160
|
|
Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
161
|
|
Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
161
|
|
Section
9.18.
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
161
|
|
Section
9.19.
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
162
|
|
Section
9.20.
|
[Reserved]
|
162
|
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
162
|
|
Section
9.22.
|
REO
Property.
|
163
|
|
Section
9.23.
|
Notices
to the Depositor and the Securities Administrator
|
163
|
|
Section
9.24.
|
Reports
to the Trustee.
|
164
|
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports..
|
165
|
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing Criteria
.
|
166
|
|
Section
9.27.
|
Merger
or Consolidation.
|
167
|
|
Section
9.28.
|
Resignation
of Master Servicer.
|
167
|
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
167
|
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
168
|
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
169
|
|
Section
9.32.
|
Special
Servicing of Delinquent Mortgage Loans.
|
169
|
|
Section
9.33.
|
Alternative
Index.
|
170
|
|
Section
9.34.
|
Duties
of the Credit Risk Manager.
|
170
|
|
Section
9.35.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
172
|
|
Section
9.36.
|
Indemnification
by the Credit Risk Manager.
|
172
|
|
Section
9.37.
|
Removal
of Credit Risk Manager.
|
173
|
|
ARTICLE
X REMIC ADMINISTRATION
|
||
|
Section
10.01.
|
REMIC
Administration.
|
173
|
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
176
|
iii
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
177
|
|
Section
10.04.
|
REO
Property.
|
177
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
||
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
178
|
|
Section
11.02.
|
Entire
Agreement.
|
178
|
|
Section
11.03.
|
Amendment.
|
178
|
|
Section
11.04.
|
Voting
Rights.
|
180
|
|
Section
11.05.
|
Provision
of Information.
|
180
|
|
Section
11.06.
|
Governing
Law.
|
181
|
|
Section
11.07.
|
Notices.
|
181
|
|
Section
11.08.
|
Severability
of Provisions.
|
182
|
|
Section
11.09.
|
Indulgences;
No Waivers.
|
182
|
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
182
|
|
Section
11.11.
|
Benefits
of Agreement.
|
182
|
|
Section
11.12.
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
183
|
|
Section
11.13.
|
Conflicts.
|
184
|
|
Section
11.14.
|
Counterparts.
|
184
|
|
Section
11.15.
|
Transfer
of Servicing.
|
184
|
iv
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
Exhibit
C
|
Request
for Release of Documents and
Receipt
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit
(Transferee)
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit
(Transferor)
|
|
Exhibit
E
|
List
of Servicing Agreements
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
Monthly
Remittance Advice
|
|
Exhibit
J
|
Monthly
Electronic Data Transmission
|
|
Exhibit
K
|
List
of Custodial Agreements
|
|
Exhibit
L
|
List
of Credit Risk Management Agreements
|
|
Exhibit
M-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
|
Exhibit
M-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security
|
|
Exhibit
N
|
Interest
Rate Cap Agreement
|
|
Exhibit
O
|
Swap
Agreement
|
|
Exhibit
P-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
P-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
P-3
|
Additional
Form 8-K Disclosure
|
|
Exhibit
P-4
|
Additional
Disclosure Notification
|
|
Exhibit
Q-1
|
Form
of Back-Up ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification
|
|
Exhibit
Q-2
|
Form
of Back-Up ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification to be Provided by the Securities
Administrator
|
|
Exhibit
R-1
|
Form
of Watchlist Report
|
|
Exhibit
R-2
|
Form
of Loss Severity Report
|
|
Exhibit
R-3
|
Form
of Mortgage Insurance Claims Report
|
|
Exhibit
R-4
|
Form
of Prepayment Premiums Report
|
|
Exhibit
R-5
|
Form
of Analytics Report
|
|
Exhibit
S
|
Form
of Certification Regarding Servicing Criteria to be Addressed in
Report on
Assessment of Compliance
|
|
Exhibit
T
|
[Reserved]
|
|
Exhibit
U
|
Form
of Certification to be Provided by the Credit Risk
Manager
|
|
Exhibit
V
|
Transaction
Parties
|
|
Schedule
A
|
Mortgage
Loan Schedule (by Mortgage Pool)
|
v
This
TRUST AGREEMENT, dated as of August 1, 2006 (the “Agreement”), is by and among
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”), U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Trustee”),
▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ FIXED INCOME SERVICES
INC. (formerly known as The Murrayhill Company), a Colorado corporation, as
credit risk manager (the “Credit Risk Manager”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from the Seller, and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by
it to the Trustee hereunder for inclusion in the Trust Fund. On the Closing
Date, the Depositor will acquire the Certificates from the Trust Fund, as
consideration for its transfer to the Trust Fund of the Mortgage Loans and
the
other property constituting the Trust Fund. The Depositor has duly authorized
the execution and delivery of this Agreement to provide for the conveyance
to
the Trustee of the Mortgage Loans and the other property constituting the Trust
Fund. All covenants and agreements made by the Seller in the Mortgage Loan
Sale
Agreement and by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee herein with respect to the Mortgage Loans and
the
other property constituting the Trust Fund are for the benefit of the Holders
from time to time of the Certificates and, to the extent provided herein, any
NIMS Insurer, the Swap Counterparty and the Cap Counterparty. The Depositor,
the
Trustee, the Master Servicer, the Securities Administrator and the Credit Risk
Manager are entering into this Agreement, and the Trustee is accepting the
Trust
Fund created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
As
provided herein, an election shall be made that the Trust Fund (exclusive of
(i)
the Swap Agreement, (ii) the Swap Account, (iii) the right to receive and the
obligation to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, (iv)
the Basis Risk Reserve Fund, (v) the Supplemental Interest Trust, (vi) the
Interest Rate Cap Agreement, (vii) the Interest Rate Cap Account, (viii) any
PPTL Premium, (ix) any FPD Premium and (x) the obligation to pay Class I
Shortfalls (collectively, the “Excluded Trust Assets”)) be treated for federal
income tax purposes as comprising four real estate mortgage investment conduits
under Section 860D of the Code (each a “REMIC” or, in the alternative “REMIC 1,”
“REMIC 2,” “REMIC 3,” and “REMIC 4” (REMIC 4 also being referred to as the
“Upper Tier REMIC”)). Any inconsistencies or ambiguities in this Agreement or in
the administration of this Agreement shall be resolved in a manner that
preserves the validity of such REMIC elections.
Each
Certificate, other than the Class R and Class LT-R Certificates, represents
ownership of a regular interest in the Upper Tier REMIC for purposes of the
REMIC Provisions. In addition, each Certificate, other than the Class R, Class
LT-R, Class X and Class P Certificates, represents (i) the right to receive
payments with respect to any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls and (ii) the obligation to pay Class I Shortfalls. The Class LT-R
Certificate represents ownership of the sole Class of residual interest in
REMIC
1. The Class R Certificate represents ownership of the sole Class of residual
interest in each of REMIC 2, REMIC 3, and the Upper Tier REMIC for purposes
of
the REMIC Provisions.
The
Upper
Tier REMIC shall hold as its assets the uncertificated Lower Tier Interests
in
REMIC 3, other than the Class LT3-R interest, and each such Lower Tier Interest
is hereby designated as a regular interest in REMIC 3 for purposes of the REMIC
Provisions. REMIC 3 shall hold as its assets the uncertificated Lower Tier
Interests in REMIC 2, other than the Class LT2-R interest, and each such Lower
Tier Interest is hereby designated as a regular interest in REMIC 2. REMIC
2
shall hold as its assets the uncertificated Lower Tier Interests in REMIC 1,
and
each such Lower Tier Interest is hereby designated as a regular interest in
REMIC 1. REMIC 1 shall hold as its assets the property of the Trust Fund other
than the Lower Tier Interests in REMIC 1, REMIC 2, and REMIC 3 and the Excluded
Trust Assets.
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
REMIC
1:
REMIC
1
shall issue one uncertificated interest in respect of each Mortgage Loan held
by
the Trust Fund on the Closing Date, each of which is hereby designated as a
regular interest in REMIC 1 (the “REMIC 1 Regular Interests”). REMIC 1 shall
also issue the Class LT-R Certificate, which shall represent the sole class
of
residual interest in REMIC 1. Each REMIC 1 Regular Interest shall have an
initial principal balance equal to the Scheduled Principal Balance of the
Mortgage Loan to which it relates and shall bear interest at a per annum rate
equal to the Net Mortgage Rate of such Mortgage Loan. In the event a Qualified
Substitute Mortgage Loan is substituted for such Mortgage Loan (the “Original
Mortgage Loan”), no amount of interest payable on such Qualified Substitute
Mortgage Loan shall be distributed on such REMIC 1 Regular Interest at a rate
in
excess of the Net Mortgage Rate of the Original Mortgage Loan.
On
each
Distribution Date, the Securities Administrator shall first pay or charge as
an
expense of REMIC 1 all expenses of the Trust Fund for such Distribution Date,
other than any expenses in respect of the Swap Agreement.
On
each
Distribution Date the Securities Administrator shall distribute the aggregate
Interest Remittance Amount (net of expenses described in the preceding
paragraph) with respect to each of the Lower Tier Interests in REMIC 1 based
on
the above-described interest rates.
On
each
Distribution Date, the Securities Administrator shall distribute the aggregate
Principal Remittance Amount among the Lower Tier Interests in REMIC 1 in
accordance with the amount of the Principal Remittance Amount attributable
to
the Mortgage Loan corresponding to each such Lower Tier Interest in REMIC 1.
All
losses on the Mortgage Loans shall be allocated among the Lower Tier Interests
in REMIC 1 in the same manner that principal distributions are
allocated.
On
each
Distribution Date, the Securities Administrator shall distribute the Prepayment
Premiums collected during the preceding Prepayment Period, in the case of
Principal Prepayments in full, or during the related Collection Period, in
the
case of Principal Prepayments in part, to the Lower Tier Interest in REMIC
1
corresponding to the Mortgage Loan with respect to which such amounts were
received.
2
REMIC
2:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 2, each of which (other than the Class LT2-R
Lower Tier Interest) is hereby designated as a regular interest in REMIC 2
(the
“REMIC 2 Regular Interests”):
|
Class
Designation
|
Initial Principal
Balance
|
Interest
Rate
|
||
|
LT2-A
|
$ 57,342,594.48
|
(1)
|
||
|
LT2-F1
|
$ 16,961,500.00
|
(2)
|
||
|
LT2-V1
|
$ 16,961,500.00
|
(3)
|
||
|
LT2-F2
|
$ 16,459,500.00
|
(2)
|
||
|
LT2-V2
|
$ 16,459,500.00
|
(3)
|
||
|
LT2-F3
|
$ 15,972,000.00
|
(2)
|
||
|
LT2-V3
|
$ 15,972,000.00
|
(3)
|
||
|
LT2-F4
|
$ 15,500,000.00
|
(2)
|
||
|
LT2-V4
|
$ 15,500,000.00
|
(3)
|
||
|
LT2-F5
|
$ 15,041,000.00
|
(2)
|
||
|
LT2-V5
|
$ 15,041,000.00
|
(3)
|
||
|
LT2-F6
|
$ 14,596,000.00
|
(2)
|
||
|
LT2-V6
|
$ 14,596,000.00
|
(3)
|
||
|
LT2-F7
|
$ 14,164,000.00
|
(2)
|
||
|
LT2-V7
|
$ 14,164,000.00
|
(3)
|
||
|
LT2-F8
|
$ 13,744,500.00
|
(2)
|
||
|
LT2-V8
|
$ 13,744,500.00
|
(3)
|
||
|
LT2-F9
|
$ 13,337,500.00
|
(2)
|
||
|
LT2-V9
|
$ 13,337,500.00
|
(3)
|
||
|
LT2-F10
|
$ 13,286,000.00
|
(2)
|
||
|
LT2-V10
|
$ 13,286,000.00
|
(3)
|
||
|
LT2-F11
|
$ 12,994,500.00
|
(2)
|
||
|
LT2-V11
|
$ 12,994,500.00
|
(3)
|
||
|
LT2-F12
|
$ 12,622,000.00
|
(2)
|
||
|
LT2-V12
|
$ 12,622,000.00
|
(3)
|
||
|
LT2-F13
|
$ 14,056,000.00
|
(2)
|
||
|
LT2-V13
|
$ 14,056,000.00
|
(3)
|
||
|
LT2-F14
|
$ 15,415,500.00
|
(2)
|
||
|
LT2-V14
|
$ 15,415,500.00
|
(3)
|
||
|
LT2-F15
|
$ 15,232,500.00
|
(2)
|
||
|
LT2-V15
|
$ 15,232,500.00
|
(3)
|
||
|
LT2-F16
|
$ 15,023,000.00
|
(2)
|
||
|
LT2-V16
|
$ 15,023,000.00
|
(3)
|
||
|
LT2-F17
|
$ 14,788,500.00
|
(2)
|
||
|
LT2-V17
|
$ 14,788,500.00
|
(3)
|
||
|
LT2-F18
|
$ 14,531,000.00
|
(2)
|
||
|
LT2-V18
|
$ 14,531,000.00
|
(3)
|
||
|
LT2-F19
|
$ 14,251,000.00
|
(2)
|
||
|
LT2-V19
|
$ 14,251,000.00
|
(3)
|
3
|
Class
Designation
|
Initial Principal
Balance
|
Interest
Rate
|
||
|
LT2-F20
|
$ 13,950,000.00
|
(2)
|
||
|
LT2-V20
|
$ 13,950,000.00
|
(3)
|
||
|
LT2-F21
|
$ 13,631,000.00
|
(2)
|
||
|
LT2-V21
|
$ 13,631,000.00
|
(3)
|
||
|
LT2-F22
|
$ 13,294,500.00
|
(2)
|
||
|
LT2-V22
|
$ 13,294,500.00
|
(3)
|
||
|
LT2-F23
|
$ 45,811,500.00
|
(2)
|
||
|
LT2-V23
|
$ 45,811,500.00
|
(3)
|
||
|
LT2-F24
|
$ 24,621,000.00
|
(2)
|
||
|
LT2-V24
|
$ 24,621,000.00
|
(3)
|
||
|
LT2-F25
|
$ 21,521,000.00
|
(2)
|
||
|
LT2-V25
|
$ 21,521,000.00
|
(3)
|
||
|
LT2-F26
|
$ 16,360,500.00
|
(2)
|
||
|
LT2-V26
|
$ 16,360,500.00
|
(3)
|
||
|
LT2-F27
|
$ 12,756,000.00
|
(2)
|
||
|
LT2-V27
|
$ 12,756,000.00
|
(3)
|
||
|
LT2-F28
|
$ 10,127,500.00
|
(2)
|
||
|
LT2-V28
|
$ 10,127,500.00
|
(3)
|
||
|
LT2-F29
|
$ 8,146,500.00
|
(2)
|
||
|
LT2-V29
|
$ 8,146,500.00
|
(3)
|
||
|
LT2-F30
|
$ 6,612,500.00
|
(2)
|
||
|
LT2-V30
|
$ 6,612,500.00
|
(3)
|
||
|
LT2-F31
|
$ 5,398,000.00
|
(2)
|
||
|
LT2-V31
|
$ 5,398,000.00
|
(3)
|
||
|
LT2-F32
|
$ 4,416,000.00
|
(2)
|
||
|
LT2-V32
|
$ 4,416,000.00
|
(3)
|
||
|
LT2-F33
|
$ 4,199,500.00
|
(2)
|
||
|
LT2-V33
|
$ 4,199,500.00
|
(3)
|
||
|
LT2-F34
|
$ 3,991,500.00
|
(2)
|
||
|
LT2-V34
|
$ 3,991,500.00
|
(3)
|
||
|
LT2-F35
|
$ 3,796,000.00
|
(2)
|
||
|
LT2-V35
|
$ 3,796,000.00
|
(3)
|
||
|
LT2-F36
|
$ 3,610,000.00
|
(2)
|
||
|
LT2-V36
|
$ 3,610,000.00
|
(3)
|
||
|
LT2-F37
|
$ 3,433,000.00
|
(2)
|
||
|
LT2-V37
|
$ 3,433,000.00
|
(3)
|
||
|
LT2-F38
|
$ 3,265,000.00
|
(2)
|
||
|
LT2-V38
|
$ 3,265,000.00
|
(3)
|
||
|
LT2-F39
|
$ 3,105,000.00
|
(2)
|
||
|
LT2-V39
|
$ 3,105,000.00
|
(3)
|
||
|
LT2-F40
|
$ 2,952,500.00
|
(2)
|
||
|
LT2-V40
|
$ 2,952,500.00
|
(3)
|
||
|
LT2-F41
|
$ 2,807,500.00
|
(2)
|
||
|
LT2-V41
|
$ 2,807,500.00
|
(3)
|
4
|
Class
Designation
|
Initial Principal
Balance
|
Interest
Rate
|
||
|
LT2-F42
|
$ 2,670,500.00
|
(2)
|
||
|
LT2-V42
|
$ 2,670,500.00
|
(3)
|
||
|
LT2-F43
|
$ 2,539,000.00
|
(2)
|
||
|
LT2-V43
|
$ 2,539,000.00
|
(3)
|
||
|
LT2-F44
|
$ 2,415,000.00
|
(2)
|
||
|
LT2-V44
|
$ 2,415,000.00
|
(3)
|
||
|
LT2-F45
|
$ 2,296,500.00
|
(2)
|
||
|
LT2-V45
|
$ 2,296,500.00
|
(3)
|
||
|
LT2-F46
|
$ 2,183,500.00
|
(2)
|
||
|
LT2-V46
|
$ 2,183,500.00
|
(3)
|
||
|
LT2-F47
|
$ 2,076,500.00
|
(2)
|
||
|
LT2-V47
|
$ 2,076,500.00
|
(3)
|
||
|
LT2-F48
|
$ 1,975,000.00
|
(2)
|
||
|
LT2-V48
|
$ 1,975,000.00
|
(3)
|
||
|
LT2-F49
|
$ 1,878,000.00
|
(2)
|
||
|
LT2-V49
|
$ 1,878,000.00
|
(3)
|
||
|
LT2-F50
|
$ 1,786,000.00
|
(2)
|
||
|
LT2-V50
|
$ 1,786,000.00
|
(3)
|
||
|
LT2-F51
|
$ 1,698,000.00
|
(2)
|
||
|
LT2-V51
|
$ 1,698,000.00
|
(3)
|
||
|
LT2-F52
|
$ 1,615,000.00
|
(2)
|
||
|
LT2-V52
|
$ 1,615,000.00
|
(3)
|
||
|
LT2-F53
|
$ 1,536,000.00
|
(2)
|
||
|
LT2-V53
|
$ 1,536,000.00
|
(3)
|
||
|
LT2-F54
|
$ 1,460,000.00
|
(2)
|
||
|
LT2-V54
|
$ 1,460,000.00
|
(3)
|
||
|
LT2-F55
|
$ 1,389,000.00
|
(2)
|
||
|
LT2-V55
|
$ 1,389,000.00
|
(3)
|
||
|
LT2-F56
|
$ 1,321,000.00
|
(2)
|
||
|
LT2-V56
|
$ 1,321,000.00
|
(3)
|
||
|
LT2-F57
|
$ 1,256,500.00
|
(2)
|
||
|
LT2-V57
|
$ 1,256,500.00
|
(3)
|
||
|
LT2-F58
|
$ 1,199,000.00
|
(2)
|
||
|
LT2-V58
|
$ 1,199,000.00
|
(3)
|
||
|
LT2-F59
|
$ 23,082,000.00
|
(2)
|
||
|
LT2-V59
|
$ 23,082,000.00
|
(3)
|
||
|
LT2-R
|
(4)
|
(4)
|
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the Class LT2-A Interest shall be the Net WAC Rate.
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the lesser of (i)
the
REMIC Swap Rate for such Distribution Date, and (ii) the product
of (a)
the Net WAC Rate and (b) 2.
|
5
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the excess, if any,
of (i)
the product of (a) the Net WAC Rate and (b) 2, over (ii) the REMIC
Swap
Rate for such Distribution Date.
|
|
(4)
|
The
Class LT2-R interest shall not have a principal amount and shall
not bear
interest. The Class LT2-R interest is hereby designated as the sole
class
of residual interest in REMIC 2.
|
On
each
Distribution Date, the Securities Administrator shall distribute the aggregate
Interest Remittance Amount for the two Mortgage Pools (net of the expenses
paid
by REMIC 1) with respect to each of the Lower Tier Interests in REMIC 2 based
on
the above-described interest rates.
On
each
Distribution Date, the Securities Administrator shall distribute the aggregate
Principal Remittance Amount with respect to the two Mortgage Pools with respect
to the Lower Tier Interests in REMIC 2, first to the Class LT2-A Interest until
its principal balance is reduced to zero, and then sequentially, to the other
Lower Tier Interests in REMIC 2 in ascending order of their numerical class
designation, and, with respect to each pair of classes having the same numerical
designation, in equal amounts to each such class, until the principal balance
of
each such class is reduced to zero. All losses on the Mortgage Loans shall
be
allocated among the Lower Tier Interests in REMIC 2 in the same manner that
principal distributions are allocated.
On
each
Distribution Date, the Securities Administrator shall distribute the Prepayment
Premiums collected during the preceding Prepayment Period to the Class LT2-F59
Lower Tier Interest.
REMIC
3:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 3, each of which (other than the Class LT3-R
interest) is hereby designated as a regular interest in REMIC 3 (the “REMIC 3
Regular Interests”):
|
REMIC
3
Lower
Tier
Class
Designation
|
REMIC
3
Lower
Tier
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of
Certificate(s)
|
|||
|
Class
LT3-A1
|
(1)
|
(3)
|
A1
|
|||
|
Class
LT3-A2
|
(1)
|
(3)
|
A2
|
|||
|
Class
LT3-A3
|
(1)
|
(3)
|
A3
|
|||
|
Class
LT3-A4
|
(1)
|
(3)
|
A4
|
|||
|
Class
LT3-M1
|
(1)
|
(3)
|
M1
|
|||
|
Class
LT3-M2
|
(1)
|
(3)
|
M2
|
|||
|
Class
LT3-M3
|
(1)
|
(3)
|
M3
|
|||
|
Class
LT3-M4
|
(1)
|
(3)
|
M4
|
|||
|
Class
LT3-M5
|
(1)
|
(3)
|
M5
|
|||
|
Class
LT3-M6
|
(1)
|
(3)
|
M6
|
|||
|
Class
LT3-M7
|
(1)
|
(3)
|
M7
|
|||
|
Class
LT3-M8
|
(1)
|
(3)
|
M8
|
|||
|
Class
LT3-M9
|
(1)
|
(3)
|
M9
|
|||
|
Class
LT3-B1
|
(1)
|
(3)
|
B1
|
|||
|
Class
LT3-B2
|
(1)
|
(3)
|
B2
|
|||
|
Class
LT3-Q
|
(1)
|
(4)
|
N/A
|
|||
|
Class
LT3-IO
|
(2)
|
(2)
|
N/A
|
|||
|
Class
LT3-R
|
(5)
|
(5)
|
R
|
6
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests in REMIC 3 is a per annum
rate
equal to the weighted average of the interest rates on the Lower
Tier
Interests in REMIC 2 for such Distribution Date, provided,
however, that
for any Distribution Date on which the Class LT3-IO Interest is entitled
to a portion of the interest accruals on a Lower Tier Interest in
REMIC 2
having an “F” in its class designation, as described in footnote two
below, such weighted average shall be computed by first subjecting
the
rate on such Lower Tier Interest in REMIC 2 to a cap equal to Swap
LIBOR
for such Distribution Date.
|
|
(2)
|
The
Class LT3-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first column
in
the table below, the Class LT3-IO shall be entitled to interest accrued
on
the Lower Tier Interest in REMIC 2 listed in the second column in
the
table below at a per annum rate equal to the excess, if any, of (i)
the
interest rate for such Lower Tier Interest in REMIC 2 for such
Distribution Date over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
REMIC
2
Class Designation
|
|
2
|
Class
LT2-F1
|
|
2-3
|
Class
LT2-F2
|
|
2-4
|
Class
LT2-F3
|
|
2-5
|
Class
LT2-F4
|
|
2-6
|
Class
LT2-F5
|
|
2-7
|
Class
LT2-F6
|
|
2-8
|
Class
LT2-F7
|
|
2-9
|
Class
LT2-F8
|
|
2-10
|
Class
LT2-F9
|
|
2-11
|
Class
LT2-F10
|
|
2-12
|
Class
LT2-F11
|
|
2-13
|
Class
LT2-F12
|
|
2-14
|
Class
LT2-F13
|
|
2-15
|
Class
LT2-F14
|
|
2-16
|
Class
LT2-F15
|
|
2-17
|
Class
LT2-F16
|
|
2-18
|
Class
LT2-F17
|
|
2-19
|
Class
LT2-F18
|
|
2-20
|
Class
LT2-F19
|
|
2-21
|
Class
LT2-F20
|
|
2-22
|
Class
LT2-F21
|
|
2-23
|
Class
LT2-F22
|
|
2-24
|
Class
LT2-F23
|
|
2-25
|
Class
LT2-F24
|
|
2-26
|
Class
LT2-F25
|
|
2-27
|
Class
LT2-F26
|
|
2-28
|
Class
LT2-F27
|
|
2-29
|
Class
LT2-F28
|
|
2-30
|
Class
LT2-F29
|
|
2-31
|
Class
LT2-F30
|
|
2-32
|
Class
LT2-F31
|
|
2-33
|
Class
LT2-F32
|
|
2-34
|
Class
LT2-F33
|
|
2-35
|
Class
LT2-F34
|
|
2-36
|
Class
LT2-F35
|
7
|
2-37
|
Class
LT2-F36
|
|
2-38
|
Class
LT2-F37
|
|
2-39
|
Class
LT2-F38
|
|
2-40
|
Class
LT2-F39
|
|
2-41
|
Class
LT2-F40
|
|
2-42
|
Class
LT2-F41
|
|
2-43
|
Class
LT2-F42
|
|
2-44
|
Class
LT2-F43
|
|
2-45
|
Class
LT2-F44
|
|
2-46
|
Class
LT2-F45
|
|
2-47
|
Class
LT2-F46
|
|
2-48
|
Class
LT2-F47
|
|
2-49
|
Class
LT2-F48
|
|
2-50
|
Class
LT2-F49
|
|
2-51
|
Class
LT2-F50
|
|
2-52
|
Class
LT2-F51
|
|
2-53
|
Class
LT2-F52
|
|
2-54
|
Class
LT2-F53
|
|
2-55
|
Class
LT2-F54
|
|
2-56
|
Class
LT2-F55
|
|
2-57
|
Class
LT2-F56
|
|
2-58
|
Class
LT2-F57
|
|
2-59
|
Class
LT2-F58
|
|
2-60
|
Class
LT2-F59
|
___________________________
|
(3)
|
This
interest shall have an initial class principal amount equal to one-half
of
the initial Class Principal Amount of its Corresponding Class of
Certificates.
|
|
(4)
|
This
interest shall have an initial class principal amount equal to the
excess
of (i) the Aggregate Pool Balance as of the Cut-off Date, over (ii)
the
aggregate initial class principal amount of each other regular interest
in
REMIC 3.
|
|
(5)
|
The
Class LT3-R interest is the sole class of residual interests in REMIC
3.
It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, interest shall be distributed on the Lower Tier Interests
in
REMIC 3 based on the above-described interest rates,
provided,
however,
that
interest that accrues on the Class LT3-Q Interest shall be deferred in an amount
equal to one-half of the increase, if any, in the Overcollateralization Amount
for such Distribution Date. Any interest so deferred shall itself bear interest
at the interest rate for the Class LT3-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the other
Lower Tier Interests in REMIC 3 having a principal balance in the manner
described under priority (a) below.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the Lower Tier Interests in REMIC 3 in the following order
of
priority:
(a)
First, to the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class LT3-A4,
Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4, Class LT3-M5, Class
LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class LT3-B1 and Class LT3-B2
Interests until the principal balance of each such Lower Tier Interest equals
one-half of the Class Principal Amount of the Corresponding Class of
Certificates immediately after such Distribution Date; and
8
(b)
Second, to the Class LT3-Q Interest, any remaining amounts.
On
each
Distribution Date, the Securities Administrator shall be deemed to have
distributed the Prepayment Premiums passed through with respect to the Class
LT2-F59 Lower Tier Interest in REMIC 2 on such Distribution Date to the Class
LT3-Q Interest
The
Certificates:
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount and minimum denomination for
each
Class of Certificates comprising interests in the Trust Fund created hereunder.
|
Class
Designation
|
Certificate
Interest
Rate
|
Initial
Class
Principal Amount
|
Minimum
Denomination
|
|||
|
Class
A1
|
(1)
|
$443,556,000
|
$
25,000
|
|||
|
Class
A2
|
(2)
|
$293,576,000
|
$
25,000
|
|||
|
Class
A3
|
(3)
|
$137,529,000
|
$
25,000
|
|||
|
Class
A4
|
(4)
|
$38,614,000
|
$
25,000
|
|||
|
Class
M1
|
(5)
|
$62,416,000
|
$100,000
|
|||
|
Class
M2
|
(6)
|
$45,340,000
|
$100,000
|
|||
|
Class
M3
|
(7)
|
$22,376,000
|
$100,000
|
|||
|
Class
M4
|
(8)
|
$20,609,000
|
$100,000
|
|||
|
Class
M5
|
(9)
|
$18,254,000
|
$100,000
|
|||
|
Class
M6
|
(10)
|
$11,188,000
|
$100,000
|
|||
|
Class
M7
|
(11)
|
$13,543,000
|
$100,000
|
|||
|
Class
M8
|
(12)
|
$10,010,000
|
$100,000
|
|||
|
Class
M9
|
(13)
|
$10,599,000
|
$100,000
|
|||
|
Class
B1
|
(14)
|
$16,487,000
|
$100,000
|
|||
|
Class
B2
|
(15)
|
$11,188,000
|
$100,000
|
|||
|
Class
X
|
(16)
|
(16)
|
10%
|
|||
|
Class
R
|
(17)
|
(17)
|
100%
|
|||
|
Class
P
|
(18)
|
$100
(19)
|
10%
|
|||
|
Class
LT-R
|
(20)
|
(20)
|
100%
|
|||
|
__________
|
|
|
(1)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.155% and (ii) with respect
to
any Distribution Date on which the Class Principal Amounts of the
Group 2
Senior Certificates are outstanding, the Pool 1 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amounts of the Group 2 Senior Certificates have been reduced
to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class A1 Certificates
will be LIBOR plus 0.310%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap; therefore,
on any Distribution Date on which the Certificate Interest Rate for
the
Class A1 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from the
Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on the
Class
A1 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A1 Certificates if the REMIC 3 Net
Funds
Cap were substituted for the Net Funds Cap shall be treated as having
been
paid by the Class A1 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
9
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.050% and (ii) with respect
to
any Distribution Date on which the Class Principal Amount of the
Group 1
Senior Certificates is outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amounts of the Group 1 Senior Certificates have been reduced
to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class A2 Certificates
will be LIBOR plus 0.100%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap; therefore,
on any Distribution Date on which the Certificate Interest Rate for
the
Class A2 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from the
Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on the
Class
A2 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A2 Certificates if the REMIC 3 Net
Funds
Cap were substituted for the Net Funds Cap shall be treated as having
been
paid by the Class A2 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.150% and (ii) with respect
to
any Distribution Date on which the Class Principal Amount of the
Group 1
Senior Certificates is outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amounts of the Group 1 Senior Certificates have been reduced
to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class A3 Certificates
will be LIBOR plus 0.300%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be
a reference to the REMIC 3 Net Funds Cap; therefore, on any Distribution
Date on which the Certificate Interest Rate for the Class A3 Certificates
exceeds the REMIC 3 Net Funds Cap, interest accruals based on such
excess
shall be treated as having been paid from the Basis Risk Reserve
Fund or
the Supplemental Interest Trust, as applicable; on any Distribution
Date
on which the Certificate Interest Rate on the Class A3 Certificates
is
based on a Net Funds Cap, the amount of interest that would have
accrued
on the Class A3 Certificates if the REMIC 3 Net Funds Cap were substituted
for the Net Funds Cap shall be treated as having been paid by the
Class A3
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 10.01(n)
hereof.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.240% and (ii) with respect
to
any Distribution Date on which the Class Principal Amount of the
Group 1
Senior Certificates is outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amount of the Group 1 Senior Certificates has been reduced
to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class A4 Certificates
will be LIBOR plus 0.480%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap; therefore,
on any Distribution Date on which the Certificate Interest Rate for
the
Class A4 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from the
Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on the
Class
A4 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A4 Certificates if the REMIC 3 Net
Funds
Cap were substituted for the Net Funds Cap shall be treated as having
been
paid by the Class A4 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
10
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.300% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M1 Certificates
will be LIBOR plus 0.450%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M1 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M1
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M1 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(6)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.310% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M2 Certificates
will be LIBOR plus 0.465%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M2 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M2
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M2 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.350% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M3 Certificates
will be LIBOR plus 0.525%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M3 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M3 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M3
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M3 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
11
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.450% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M4 Certificates
will be LIBOR plus 0.675%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M4 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M4 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M4
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M4 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.490% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M5 Certificates
will be LIBOR plus 0.735%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M5 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M5 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M5
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M5 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M6 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.500% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M6 Certificates
will be LIBOR plus 0.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M6 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M6 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M6
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M6 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(11)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M7 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.900% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M7 Certificates
will be LIBOR plus 1.350%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M7 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M7 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M7
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M7 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
12
|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M8 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.100% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M8 Certificates
will be LIBOR plus 1.650%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M8 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M8 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M8
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M8 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(13)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M9 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.300% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M9 Certificates
will be LIBOR plus 3.450%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M9 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M9 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M9
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M9 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(14)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class B1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class B1 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B1 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B1
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class B1 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(15)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class B2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class B2 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B2 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B2
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class B2 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
13
|
(16)
|
For
purposes of the REMIC Provisions, Class X shall have an initial principal
balance of $22,374,494.48 and the right to receive distributions
of such
amount represents a regular interest in the Upper Tier REMIC. The
Class X
Certificate shall also comprise two notional components, each of
which
represents a regular interest in the Upper Tier REMIC. The first
such
component has a notional balance that will at all times equal the
aggregate of the Class Principal Amounts of the Lower Tier Interests
in
REMIC 3, and, for each Distribution Date (and the related Accrual
Period)
this notional component shall bear interest at a per annum rate equal
to
the excess, if any, of (i) (a) the weighted average of the interest
rates
on the Lower Tier Interests in REMIC 3 (other than any interest-only
regular interest) minus (b) the Credit Risk Manager’s Fee Rate, over (ii)
the Adjusted Lower Tier WAC. The second notional component represents
the
right to receive all distributions in respect of the Class LT3-IO
Interest
in REMIC 3 (the “Class LT4-I” interest). In addition, for purposes of the
REMIC Provisions, the Class X Certificate shall represent beneficial
ownership of (i) the Basis Risk Reserve Fund; (ii) the Supplemental
Interest Trust, including the Swap Agreement, the Swap Account, the
Interest Rate Cap Agreement and the Interest Rate Cap Account, (iii)
any
PPTL Premiums, (iv) any FPD Premiums, and (v) an interest in the
notional
principal contracts described in Section 10.01(n)
hereof.
|
|
(17)
|
The
Class R Certificate will be issued without a Class Principal Amount
and
will not bear interest at a stated rate. The Class R Certificate
represents ownership of the residual interest in the Upper Tier REMIC,
as
well as ownership of the Class LT2-R Interest and Class LT3-R Interest.
The Class R Certificate will be issued as a single Certificate evidencing
the entire Percentage Interest in such
Class.
|
|
(18)
|
The
Class P Certificates shall not bear interest at a stated rate. Prepayment
Premiums paid with respect to the Mortgage Loans shall be paid to
the
Holders of the Class P Certificates as provided in Section 5.02(i).
For
purposes of the REMIC Provisions, Class P shall represent a regular
interest in the Upper Tier REMIC.
|
|
(19)
|
The
Class P Certificates will have an initial Class P Principal Amount
of
$100.
|
|
(20)
|
The
Class LT-R Certificate will be issued without a Class Principal Amount
and
will not bear interest at a stated rate. The Class LT-R Certificate
represents ownership of the residual interest in REMIC 1. The Class
LT-R
Certificate will be issued as a single Certificate evidencing the
entire
Percentage Interest in such Class.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$1,177,659,594.48.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Credit Risk Manager, the Master Servicer, the Securities
Administrator and the Trustee hereby agree as follows:
14
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that service
or
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Trustee or the Master Servicer, or (y) as provided
in
the applicable Servicing Agreement, to the extent applicable to the related
Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to each Class of LIBOR Certificates and any Distribution Date, the
period beginning on the Distribution Date in the calendar month immediately
preceding the month in which the related Distribution Date occurs (or, in the
case of the first Distribution Date, beginning on August 25, 2006) and ending
on
the day immediately preceding the related Distribution Date, as calculated
in
accordance with Section 1.03.
Act:
As
defined in Section 3.03(c).
Additional
Collateral:
None.
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Additional
Servicer:
Each
affiliate of a Servicer that Services any of the Mortgage Loans and each Person
who is not an affiliate of any Servicer, who Services 10% or more of the
Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for the adjustment
of the Mortgage Rate applicable thereto.
Adjusted
Lower Tier WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to (i)
two,
multiplied by (ii) the weighted average of the interest rates for such
Distribution Date for the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class
LT3-A4, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4, Class LT3-M5,
Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class LT3-B1, Class
LT3-B2 and Class LT3-Q Interests, weighted in proportion to their Class
Principal Amounts as of the beginning of the related Accrual Period and computed
by subjecting the rate on the Class LT3-Q Interest to a cap of 0.00%, and by
subjecting the rate on each of the Class LT3-A1, Class LT3-A2, Class LT3-A3,
Class LT3-A4, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4, Class
LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class LT3-B1
and
Class LT3-B2 Interests to a cap that corresponds to the Certificate Interest
Rate (determined by substituting the REMIC 3 Net Funds Cap for the applicable
Net Funds Cap) for the Corresponding Class of Certificates; provided,
however,
that
for each Class of LIBOR Certificates, the Certificate Interest Rate shall be
multiplied by an amount equal to (a) the actual number of days in the Accrual
Period, divided by (b) 30.
15
Advance:
With
respect to a Mortgage Loan other than a Simple Interest Mortgage Loan, an
advance of the aggregate of payments (other than Balloon Payments) of principal
and interest (net of the applicable Servicing Fee) on one or more Mortgage
Loans
that were due on a Due Date in the related Collection Period and not received
as
of the close of business on the related Determination Date, required to be
made
by or on behalf of the Master Servicer and any Servicer (or by the Trustee
as
successor to the Master Servicer) pursuant to Section 5.04, but only to the
extent that such amount is expected, in the reasonable judgment of the Master
Servicer or Servicer (or by the Trustee as successor to the Master Servicer),
to
be recoverable from collections or recoveries in respect of such Mortgage Loans.
With respect to a Simple Interest Mortgage Loan, an advance of an amount equal
to the interest accrual on such Simple Interest Mortgage Loan through the
related Due Date but not received as of the close of business on the related
Distribution Date (net of applicable Servicing Fee) required to be made by
or on
behalf of the Master Servicer or any Servicer (or by the Trustee as successor
to
the Master Servicer) pursuant to Section 5.04, but only to the extent that
such
amount is expected, in the reasonable judgment of the Master Servicer or
Servicer (or by the Trustee as successor to the Master Servicer), to be
recoverable from collections or recoveries in respect of such Simple Interest
Mortgage Loans.
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.
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
16
Aggregate
Expense Rate:
With
respect to any Mortgage Loan, the sum of the related Servicing Fee Rate and
the
applicable Insurance Fee Rate, in the case of any Mortgage Loan covered by
a
Bulk PMI Policy or a LPMI Policy.
Aggregate
Overcollateralization Release Amount:
With
respect to any Distribution Date, the lesser of (x) the aggregate of the
Principal Remittance Amounts for each Mortgage Pool for such Distribution Date
and (y) the amount, if any, by which (i) the Overcollateralization Amount for
such date, calculated for this purpose on the basis of the assumption that
100%
of the aggregate of the Principal Remittance Amounts for such Distribution
Date
is applied on such date in reduction of the aggregate Certificate Principal
Amount of the Certificates, exceeds (ii) the Targeted Overcollateralization
Amount.
Aggregate
Pool Balance:
As of
any date of determination, the aggregate of the Pool Balances of Pool 1 and
Pool
2 on such date.
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
Anniversary
Year:
The
one-year period beginning on the Closing Date and ending on the first
anniversary thereof, and each subsequent one-year period beginning on the day
after the end of the preceding Anniversary Year and ending on next succeeding
anniversary of the Closing Date.
Applied
Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the aggregate
Certificate Principal Amount of the LIBOR Certificates after giving effect
to
distributions of principal on such Distribution Date, but before giving effect
to any application of the Applied Loss Amount with respect to such date, exceeds
(y) the Aggregate Pool Balance for such Distribution Date.
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Trustee, which assignment, notice of transfer or equivalent instrument may
be in
the form of one or more blanket assignments covering the Mortgage Loans secured
by Mortgaged Properties located in the same jurisdiction, if permitted by law;
provided,
however,
that
neither a Custodian nor the Trustee shall be responsible for determining whether
any such assignment is in recordable form.
Authenticating
Agent:
Any
authenticating agent appointed by the Securities Administrator pursuant to
Section 6.10.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate on behalf of the
Depositor.
17
Aurora:
Aurora
Loan Services LLC.
B1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class M5, Class M6, Class M7, Class M8 and Class M9 Certificates, in each
case after giving effect to distributions on such Distribution Date and (ii)
the
Class Principal Amount of the Class B1 Certificates immediately prior to such
Distribution Date exceeds (y) the B1 Target Amount.
B1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 94.30% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
B2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class M5, Class M6, Class M7, Class M8, Class M9 and Class B1 Certificates,
in each case after giving effect to distributions on such Distribution Date
and
(ii) the Class Principal Amount of the Class B2 Certificates immediately prior
to such Distribution Date exceeds (y) the B2 Target Amount.
B2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 96.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
Back-Up
Certification:
As
defined in Section 6.20(e)(iv).
Balloon
Mortgage Loan:
Any
Mortgage Loan having an original term to maturity that is shorter than its
amortization schedule, and a final Scheduled Payment that is disproportionately
large in comparison to other Scheduled Payments.
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
Bankruptcy Code or any other similar state laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
18
Basis
Risk Payment:
With
respect to any Distribution Date, the sum of (i) any Basis Risk Shortfall for
such Distribution Date, (ii) any Unpaid Basis Risk Shortfall from previous
Distribution Dates and (iii) any Required Reserve Fund Deposit for such
Distribution Date. The amount of the Basis Risk Payment for any Distribution
Date cannot exceed the amount of Monthly Excess Cashflow otherwise available
for
distribution pursuant to Section 5.02(f)(iv) of this Agreement.
Basis
Risk Reserve Fund:
A fund
created as part of the Trust Fund pursuant to Section 5.06 of this Agreement
but
which is not an asset of any of the REMICs.
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of LIBOR Certificates, the amount
by which the amount of interest calculated at the Certificate Interest Rate
applicable to such Class for such date, determined without regard to the Pool
1
Net Funds Cap, Pool 2 Net Funds Cap or Subordinate Net Funds Cap, as applicable,
for such date but subject to a cap equal to the applicable Maximum Interest
Rate, exceeds the amount of interest calculated at the Pool 1 Net Funds Cap,
Pool 2 Net Funds Cap or Subordinate Net Funds Cap, as applicable.
Benefit
Plan Opinion:
An
Opinion of Counsel satisfactory to the Depositor and the Trustee to the effect
that any proposed transfer of Certificates will not (i) cause the assets of
the
Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the Depositor
or the Trustee, respectively.
Book-Entry
Certificates:
Beneficial interests in Certificates designated as “Book-Entry Certificates” in
this Agreement, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 3.09;
provided,
that after
the
occurrence of a condition whereupon book-entry registration and transfer are
no
longer permitted and Definitive Certificates are to be issued to Certificate
Owners, such Book-Entry Certificates shall no longer be “Book-Entry
Certificates.” As of the Closing Date, each Class of LIBOR Certificates
constitutes Book-Entry Certificates.
Bulk
PMI Policy:
Any of
the (A)(i) the MGIC Mortgage Guaranty Select Master Policy for Multiple Loan
Transactions No. 22-590-4-3599 and the MGIC Letter Agreement dated August 23,
2006 and (ii) Commitment Certificates covering $181,435,980.90 aggregate
principal balance of insurable Mortgage Loans and (B) PMI Mortgage Master Policy
No. ▇▇▇▇▇-▇▇▇▇-▇, Bulk No. 2006-0819,
subject to the terms and conditions of PMI Mortgage’s Bulk Primary First Lien
Master Policy UW 2510.00 (09/00) and the PMI Letter Agreement dated August
30,
2006, covering $129,997,809 aggregate principal balance of insurable Mortgage
Loans.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in New York, New York or, if other than New York or the city in which the
principal office of the Corporate Trust Office of the Securities Administrator
is located, or the States of Maryland, Massachusetts or Minnesota are closed,
or
(iii) with respect to any Servicer Remittance Date or any Servicer reporting
date, the States specified in the definition of “Business Day” in the related
Servicing Agreement, are authorized or obligated by law or executive order
to be
closed.
19
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Interest Rate Cap
Agreement, and any successor in interest or assigns. Initially, the Cap
Counterparty shall be HSBC Bank USA, National Association.
Cap
Replacement Receipts:
As
defined in Section 5.09(b).
Cap
Replacement Receipts Account:
As
defined in Section 5.09(b).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Interest Rate
Cap Agreement, the payment required to be made by the Cap Counterparty to the
Supplemental Interest Trust pursuant to the terms of the Interest Rate Cap
Agreement, and any unpaid amounts due on previous Interest Rate Cap Payment
Dates and accrued interest thereon as provided in the Interest Rate Cap
Agreement, as calculated by the Cap Counterparty and furnished to the Trustee
and the Securities Administrator.
Cap
Termination Receipts:
As
defined in Section 5.09(b).
Cap
Termination Receipts Account:
As
defined in Section 5.09(b).
Carryforward
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, the sum
of
(i) the amount, if any, by which (x) the sum of (A) Current Interest for such
Class for the immediately preceding Distribution Date and (B) any unpaid
Carryforward Interest for such Class from previous Distribution Dates exceeds
(y) the amount distributed in respect of interest on such Class on such
immediately preceding Distribution Date, and (ii) interest on such amount for
the related Accrual Period at the applicable Certificate Interest
Rate.
Certificate:
Any one
of the certificates signed and countersigned by the Securities Administrator
in
substantially the forms attached hereto as Exhibit A.
Certificate
Account:
The
account maintained by the Securities Administrator in accordance with the
provisions of Section 4.01.
Certificate
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate set forth or described under the heading “The Certificates” in
the Preliminary Statement hereto.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing Agency, or
on
the books of a Person maintaining an account with such Clearing Agency (directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency).
Certificate
Principal Amount:
With
respect to any LIBOR Certificate, the initial Certificate Principal Amount
thereof on the Closing Date, less the amount of all principal distributions
previously distributed with respect to such Certificate and, in the case of
the
Subordinate Certificates, any Applied Loss Amount previously allocated to such
Certificate; provided,
however,
that on
each Distribution Date on which a Subsequent Recovery is distributed, the
Certificate Principal Amount of any Class of Subordinate Certificates whose
Certificate Principal Amount has previously been reduced by application of
Applied Loss Amounts will be increased, in order of seniority, by an amount
(to
be applied pro
rata
to all
Certificates of such Class) equal to the lesser of (1) any Deferred Amount
for
each such Class immediately prior to such Distribution Date and (2) the total
amount of any Subsequent Recovery distributed on such Distribution Date to
Certificateholders, after application for this purpose to any more senior
Classes of Certificates. The Class X, Class R and Class LT-R Certificates are
issued without Certificate Principal Amounts. The Class P Certificates are
issued with an initial Class P Principal Amount of $100.
20
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certification
Parties:
As
defined in Section 6.20(e)(iv).
Certifying
Person:
As
defined in Section 6.20(e)(iv).
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
statute.
Class:
All
Certificates, in the case of REMIC 4, all interests bearing the same class
designation, and, in the case of REMIC 1, REMIC 2 and REMIC 3, all Lower Tier
Interests, bearing the same class designation.
Class
B Certificates:
Collectively, the Class B1 and Class B2 Certificates.
Class
I Shortfalls:
As
defined in Section 10.01(n) hereof. For purposes of clarity, the Class I
Shortfall for any Distribution Date shall equal the amount payable to the Swap
Counterparty on such Distribution Date in excess of the amount payable on the
Class LT4-I interest in the Upper Tier REMIC on such Distribution Date, all
as
further provided in Section 10.01(n) hereof.
Class
LT-R Certificate:
Each
Class LT-R Certificate executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A and evidencing the ownership of the residual
interest in REMIC 1.
Class
M1 Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of the aggregate Class Principal Amount of the
Subordinate Certificates (other than the Class M1 Certificates), the Class
B
Certificates and the Overcollateralization Amount for such Distribution Date
(which, for purposes of this definition only, will not be less than zero) and
the denominator of which is the Aggregate Pool Balance for such Distribution
Date, in each case after giving effect to distributions on such Distribution
Date.
Class
M Certificates:
Collectively, the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6,
Class M7, Class M8 and Class M9 Certificates.
21
Class
Notional Amount:
Not
applicable.
Class
P Principal Amount:
As of
the Closing Date, $100.
Class
Principal Amount:
With
respect to any Class of LIBOR Certificates and any date of determination, the
aggregate of the Certificate Principal Amounts of all Certificates of such Class
on such date. With respect to the Class X, Class P, Class LT-R and Class R
Certificates, zero. With respect to any Lower Tier Interest, the initial Class
Principal Amount as shown or described in the table set forth in the Preliminary
Statement to this Agreement for the issuing REMIC, as reduced by principal
distributed with respect to such Lower Tier Interest and Realized Losses
allocated to such Lower Tier Interest.
Class
R Certificate:
Each
Class R Certificate executed by the Securities Administrator, and authenticated
and delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit A and evidencing the ownership of the Class LT2-R Interest,
Class LT3-R Interest and the residual interest in the Upper Tier
REMIC.
Class
X Distributable Amount:
With
respect to any Distribution Date, the amount of interest that has accrued on
the
Class X Notional Balance, as described in the Preliminary Statement, but that
has not been distributed prior to such date. In addition, such amount shall
include the initial Overcollateralization Amount of $22,374,594.48 (less $100
of
such amount allocated to the Class P Certificates) to the extent such amount
has
not been distributed on an earlier Distribution Date as part of the Aggregate
Overcollateralization Release Amount.
Class
X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
principal balance of the regular interests in REMIC 3 as specified in the
Preliminary Statement hereto.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking Luxembourg, and any successor thereto.
Closing
Date:
August
30, 2006.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collection
Period:
With
respect to any Distribution Date, the period commencing on the second day of
the
month immediately preceding the month in which such Distribution Date occurs
and
ending on the first day of the month in which such Distribution Date
occurs.
22
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Distribution Date, an amount equal to the aggregate amount of
any
Prepayment Interest Shortfalls required to be paid by the Servicers with respect
to such Distribution Date. The Master Servicer (solely in its capacity as master
servicer) shall not be responsible for making any Compensating Interest
Payment.
Controlling
Person:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Department of Veterans
Affairs.
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 executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv) the
original executed Recognition Agreement and the 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-3 financing statements (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.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
principal corporate trust office of the Securities Administrator at which,
at
any particular time, its corporate trust business shall be administered, which
office at the date hereof is located at (a) for purposes of presentment and
surrender of the Certificates, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Client Service Manager - SASCO 2006-BC2 and (b)
for
all other purposes, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Client Service Manager - SASCO 2006-BC2.
23
Corresponding
Class:
The
Class of Certificates that corresponds to a Class of interests in REMIC 3 or
REMIC 4, as provided in the Preliminary Statement.
Countrywide
Servicing:
Countrywide Home Loans Servicing LP.
Credit
Risk Management Agreement:
Each
credit risk management agreement dated as of the Closing Date, entered into
by a
Servicer or the Master Servicer and the Credit Risk Manager, identified on
Exhibit L attached hereto.
Credit
Risk Manager:
▇▇▇▇▇▇▇
Fixed Income Services Inc., formerly known as The Murrayhill Company, a Colorado
corporation, and its successors and assigns.
Credit
Risk Manager’s Fee:
With
respect to any Distribution Date and each Mortgage Loan, an amount equal to
the
product of (a) one twelfth, (b) the Credit Risk Manager’s Fee Rate and (c) the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Collection Period.
Credit
Risk Manager’s Fee Rate:
0.011%
per annum.
Cumulative
Loss Trigger Event:
A
Cumulative Loss Trigger Event shall have occurred with respect to any
Distribution Date if the fraction, expressed as a percentage, obtained by
dividing (x) the aggregate amount of cumulative Realized Losses incurred on
the
Mortgage Loans from the Cut-off Date through the last day of the related
Collection Period by (y) the Cut-off Date Balance exceeds the applicable
percentages described below with respect to such Distribution Date:
|
Distribution
Date
|
Loss
Percentage
|
|
September
2008 to August 2009
|
1.25%
for the first month, plus
an
additional 1/12th
of
1.55% for each month thereafter
|
|
September
2009 to August 2010
|
2.80%
for the first month, plus
an
additional 1/12th
of
1.60% for each month thereafter
|
|
September
2010 to August 2011
|
4.40%
for the first month, plus
an
additional 1/12th
of
1.30% for each month thereafter
|
|
September
2011 to August 2012
|
5.70%
for the first month, plus
an
additional 1/12th
of
0.75% for each month thereafter
|
|
September
2012 and thereafter
|
6.45%
|
Current
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, the
aggregate amount of interest accrued at the applicable Certificate Interest
Rate
during the related Accrual Period on the Class Principal Amount of such Class
immediately prior to such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by a
Servicer pursuant to the related Servicing Agreement.
24
Custodial
Agreement:
Each
custodial agreement identified on Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee and acknowledged by the Master Servicer
substantially in the form thereof.
Custodial
Compensation:
The
transactional fees or charges (exclusive of the trustee acceptance fee and
annual administration fee) and reimbursement of out-of-pocket expenses paid
to
or allowed Deutsche Bank National Trust Company and ▇▇▇▇▇ Fargo Bank, N.A.,
in
their respective capacities as a Custodian, pursuant to the applicable Custodial
Agreement or any applicable side letter.
Custodian:
Each
custodian appointed by the Trustee pursuant to a Custodial Agreement, and any
successor thereto. The initial Custodians are Deutsche Bank National Trust
Company, LaSalle Bank National Association, U.S. Bank National Association
and
▇▇▇▇▇ Fargo Bank, N.A.
Cut-off
Date:
August
1, 2006.
Cut-off
Date Balance:
The
Aggregate Pool Balance as of the Cut-off Date.
DBRS:
Dominion Bond Rating Service, Inc.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of, or in
connection with, any proceeding under Bankruptcy law or any similar
proceeding.
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Amount:
With
respect to any Distribution Date and each Class of the Subordinate Certificates,
the amount by which (x) the aggregate of Applied Loss Amounts previously applied
in reduction of the Class Principal Amount thereof exceeds (y) the sum of (1)
the aggregate of amounts previously reimbursed in respect thereof and (2) the
amount by which the Class Principal Amount of such Class has been increased
due
to any Subsequent Recovery.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Delinquency
Default Mortgage Loan:
Any
Mortgage Loan originated by BNC Mortgage, Inc. which was 29 days or more
Delinquent as of the Cut-off Date which is not current in payment on or before
August 31, 2006.
Delinquency
Event:
Any
Distribution Date on which the Rolling Three Month Delinquency Rate as of the
last day of the immediately preceding calendar month equals or exceeds (1)
35.60% of the Senior Enhancement Percentage for such Distribution Date or (2)
with respect to any Distribution Date on or after which the aggregate Class
Principal Amount of the Senior Certificates has been reduced to zero, 46.60%
of
the Class M1 Enhancement Percentage.
25
Delinquency
Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding principal balance of all
Mortgage Loans 60 days Delinquent or more (including all foreclosures,
bankruptcies and REO Properties) as of the close of business on the last day
of
such month, and the denominator of which is the Aggregate Pool Balance as of
the
close of business on the last day of such month.
Delinquent:
For
reporting purposes, a Mortgage Loan is “delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor. Such Mortgage Loan is “30 days Delinquent” if such payment has
not been received by the close of business on the corresponding day of the
month
immediately succeeding the month in which such payment was first due, or, if
there is no such corresponding day (e.g.,
as when
a 30-day month follows a 31-day month in which a payment was due on the 31st
day
of such month), then on the last day of such immediately succeeding month.
Similarly for “60 days Delinquent” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding
month.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having its
principal place of business in New York, or its successors in
interest.
Determination
Date:
With
respect to each Distribution Date and any Servicer, the 18th day of the month
in
which such Distribution Date occurs, or, if such 18th day is not a Business
Day,
the next succeeding Business Day.
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distressed
Mortgage Loan:
Any
Mortgage Loan that at the date of determination is Delinquent in payment for
a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the applicable Servicer or the Trustee
has accepted a deed in lieu of foreclosure.
Distribution
Date:
The
25th day of each month or, if such 25th day is not a Business Day, the next
succeeding Business Day, commencing in September 2006.
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account or accounts the deposits in which are insured by the FDIC to
the
limits established by such corporation, provided that any such deposits not
so
insured shall be maintained in an account at a depository institution or trust
company whose commercial paper or other short term debt obligations (or, in
the
case of a depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other short term debt
or deposit obligations of such holding company or depository institution, as
the
case may be) have been rated by each Rating Agency in its highest short-term
rating category, or (iii) a segregated trust account or accounts (which shall
be
a “special deposit account”) maintained with the Trustee or any other federal or
state chartered depository institution or trust company, acting in its fiduciary
capacity, in a manner acceptable to the Trustee and the Rating Agencies.
Eligible Accounts may bear interest.
26
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
GNMA, FNMA or FHLMC with any registered broker/dealer subject to Securities
Investor Protection Corporation jurisdiction or any commercial bank insured
by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest short-term
rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to (a)
one
of the two highest short-term credit rating categories of S&P and ▇▇▇▇▇’▇
and (b) the highest short-term rating category of Fitch; provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate Pool Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
provided,
further,
that
such securities will not be Eligible Investments if they are published as being
under review with negative implications from any Rating Agency;
27
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment (including those managed or
advised by the Securities Administrator or any Affiliate thereof), (A) rated
in
the highest rating category by each Rating Agency rating such investment or
(B)
that would not adversely affect the then current rating assigned by each Rating
Agency of any of the Certificates or the NIM Securities and has a short term
rating of at least “A-1” or its equivalent by each Rating Agency. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which U.S. Bank National Association
(the “Bank”) in its capacity other than as Trustee, the Trustee, the Master
Servicer, any NIMS Insurer, the Securities Administrator or an affiliate thereof
serves as an investment advisor, administrator, shareholder servicing agent,
and/or custodian or subcustodian, notwithstanding that (x) the Bank, the
Trustee, the Master Servicer, any NIMS Insurer, the Securities Administrator
or
any affiliate thereof charges and collects fees and expenses from such funds
for
services rendered, (y) the Bank, the Trustee, the Master Servicer, any NIMS
Insurer, the Securities Administrator or any affiliate thereof charges and
collects fees and expenses for services rendered pursuant to this Agreement,
and
(z) services performed for such funds and pursuant to this Agreement may
converge at any time. The Trustee specifically authorizes the Bank or an
affiliate thereof to charge and collect from the Trustee such fees as are
collected from all investors in such funds for services rendered to such funds
(but not to exceed investment earnings thereon);
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided
that any
such investment will be a “permitted investment” within the meaning of Section
860G(a)(5) of the Code.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
28
ERISA-Restricted
Certificate:
Any
Class B1, Class B2, Class P, Class X, Class R or Class LT-R Certificate, and
any
Offered Certificate which does not have a rating of BBB- or above or Baa3 or
above.
ERISA-Restricted
Trust Certificate:
Any
Senior Certificate or Class M Certificate.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by each Servicer
satisfying the requirements of the related Servicing Agreement.
Escrow
Account:
Any
account established and maintained by each Servicer pursuant to the related
Servicing Agreement.
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
With
respect to any document to be filed in accordance with the Exchange Act other
than any Form 8-K (other than the initial Form 8-K), Form 10-D, Form 10-K or
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, the Depositor, and with respect to any Form 8-K
(other than the initial Form 8-K), Form 10-D, Form 10-K or ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification, the Master Servicer, or as otherwise determined by mutual
agreement between such parties.
Excluded
Trust Assets:
As
described in the Preliminary Statement.
▇▇▇▇▇▇
▇▇▇ or FNMA:
▇▇▇▇▇▇
Mae, f/k/a/ the Federal National Mortgage Association, a federally chartered
and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
The
fidelity bond required to be obtained by each Servicer satisfying the
requirements of the related Servicing Agreement.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates, the Distribution Date occurring in
September 2036.
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
First
Payment Default Administration Agreement:
The
first payment default administration agreement dated August 30, 2006, among
the
Depositor, the Seller, the Mortgage Loan Administrator, the Securities
Administrator and the Trustee for the monitoring of the First Payment Default
Mortgage Loans by the Mortgage Loan Administrator.
29
First
Payment Default Mortgage Loan:
Any
Mortgage Loan originated by Option One Mortgage Corporation or People’s Choice
Home Loan, Inc. which do not make first payments due to the Seller within the
time frame required under the related PPTLS or any Mortgage Loan originated
by
BNC Mortgage, Inc. in respect of which the related Mortgagor does not make
the
first payment due to the Seller within the time frame required under Section
1.04(e) of the Mortgage Loan Sale Agreement.
Fitch:
Fitch
Ratings, Inc., or any successor in interest.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for a fixed rate
of
interest throughout the term of such Note.
Form
8-K Disclosure Information:
As
defined in Section 6.20(f)(i).
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
FPD
Premium:
With
respect to any First Payment Default Mortgage Loan or Delinquency Default
Mortgage Loan purchased by the Seller, the excess, if any of the FPD Purchase
Price over the Purchase Price for such Mortgage Loan.
FPD
Purchase Price:
With
respect to any First Payment Default Mortgage Loan or Delinquency Default
Mortgage Loan, an amount equal to the sum of (a) 101.50% of the unpaid principal
balance of such Mortgage Loan and (b) accrued interest thereon at the applicable
Mortgage Rate from the date as to interest was last paid to (but not including)
the Due Date in the Collection Period immediately preceding the related
Distribution Date.
▇▇▇▇▇▇▇
Mac or FHLMC:
▇▇▇▇▇▇▇
Mac, f/k/a the Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
GMAC:
GMAC
Mortgage Corporation.
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Group:
The
Group 1 Senior Certificates or the Group 2 Senior Certificates, as the context
requires.
Group
1 Senior Certificates:
The
Class A1 Certificates.
Group
2 Senior Certificates: Collectively,
the Class A2, Class A3 and Class A4 Certificates.
30
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, the Securities
Administrator, any Servicer or the Credit Risk Manager or any Affiliate thereof
shall be deemed not to be outstanding in determining whether the requisite
percentage necessary to effect any such consent has been obtained, except that,
in determining whether the Securities Administrator shall be protected in
relying upon any such consent, only Certificates which a Responsible Officer
of
the Securities Administrator knows to be so owned shall be disregarded. The
Securities Administrator and any NIMS Insurer may request and conclusively
rely
on certifications by the Depositor, the Master Servicer, the Trustee, the
applicable Servicer or the Credit Risk Manager in determining whether any
Certificates are registered to an Affiliate of the Depositor, the Master
Servicer, the Trustee, any Servicer or the Credit Risk Manager. After a Section
7.01(c) Purchase Event, other than in Sections 5.02(b) through (h) and 11.03(a)
and (b) and, except in the case of the Class LT-R Certificates, Sections 3.03,
3.04, 3.05, 3.06, 3.07 and 3.09 herein, all references in this Agreement to
“Holder” or “Certificateholder” shall be deemed to be references to the
LTURI-holder, as recorded on the books of the Certificate Registrar, as holder
of the Lower Tier Uncertificated REMIC 1 Regular Interests.
HomEq:
HomEq
Servicing Corporation.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. 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 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, trustee,
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:
The
index specified in the related Mortgage Note for calculation of the Mortgage
Rate thereof.
Initial
LIBOR Rate:
5.32438%.
Initial
Optional Termination Date:
The
first Distribution Date following the date on which the Aggregate Pool Balance
is less than 5.00% of the Cut-off Date Balance.
Insurance
Fee Rate:
With
respect to each Mortgage Loan insured under any Bulk PMI Policy or LPMI Policy,
the per annum rate specified in the Mortgage Loan Schedule under the field
“Insurance Fee Rate,” plus any taxes due and payable with respect to any such
insured Mortgage Loan where the related Mortgaged Property is located in the
states of Kentucky and West Virginia.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy, any standard hazard insurance policy, flood
insurance policy, earthquake insurance policy or title insurance policy relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of the
Closing Date or thereafter during the term of this Agreement.
31
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to cover
expenses incurred by or on behalf of any Servicer or Master Servicer in
connection with procuring such proceeds, (ii) to be applied to restoration
or
repair of the related Mortgaged Property or (iii) required to be paid over
to
the Mortgagor pursuant to law or the related Mortgage Note.
Interest
Rate Cap Account:
The
account created pursuant to Section 5.07(b).
Interest
Rate Cap Agreement:
The
interest rate cap agreement dated August 30, 2006 entered into by the
Supplemental Interest Trust, which agreement provides for the monthly payment
specified therein to the Securities Administrator (for the benefit of the
Certificateholders) commencing with the Distribution Date in August 2007 and
ending on the Distribution Date in August 2011, by the Cap Counterparty, but
subject to the conditions set forth therein together with any schedules,
confirmations or other agreements relating thereto, attached hereto as Exhibit
N.
Interest
Rate Cap Amount:
With
respect to each Distribution Date, the amount of any Interest Rate Cap Payment
deposited into the Interest Rate Cap Account, and any investment earnings
thereon.
Interest
Rate Cap Payment:
With
respect to each Distribution Date, any payment required to be made by the Cap
Counterparty to the Supplemental Interest Trust pursuant to the terms of the
Interest Rate Cap Agreement.
Interest
Rate Cap Payment Date:
For so
long as the Interest Rate Cap Agreement is in effect or any amounts remain
unpaid thereunder, the Business Day immediately preceding each Distribution
Date.
Interest
Remittance Amount:
With
respect to each Mortgage Pool and any Distribution Date, an amount equal to
(a)
the sum of (1) all interest collected (other than Payaheads and Prepayment
Premiums) or advanced in respect of Scheduled Payments on the Mortgage Loans
in
such Mortgage Pool during the related Collection Period by the applicable
Servicers, the Master Servicer or the Trustee (solely in its capacity as
successor master servicer), minus
(w) the
PMI Insurance Premiums related to the Mortgage Loans in such Mortgage Pool
and
any state taxes imposed on such premiums, (x) the Servicing Fee with respect
to
such Mortgage Loans in such Mortgage Pool and (y) previously unreimbursed
Advances due to the Servicers, the Master Servicer or the Trustee (solely in
its
capacity as successor master servicer) to the extent allocable to interest
and
the allocable portion of previously unreimbursed Servicing Advances with respect
to such Mortgage Loans, (2) any amounts actually paid by the Servicers with
respect to Prepayment Interest Shortfalls and any Compensating Interest Payments
with respect to such Mortgage Loans and the related Prepayment Period, (3)
the
portion of any Purchase Price (or PPTL Purchase Price (excluding any PPTL
Premium) or FPD Purchase Price (excluding any FPD Premium) payable with respect
to a First Payment Default Mortgage Loan or Delinquency Default Mortgage Loan)
or Substitution Amount paid with respect to such Mortgage Loans during the
related Prepayment Period allocable to interest and (4) all Net Liquidation
Proceeds, Insurance Proceeds, any Subseqent Recoveries and any other recoveries
collected with respect to such Mortgage Loans during the related Prepayment
Period, to the extent allocable to interest, for each Mortgage Pool,
as
reduced by (b)
the
product of (i) the applicable Pool Percentage for such Distribution Date and
(ii) any other costs, expenses or liabilities reimbursable to the Trustee,
the Master Servicer, the Securities Administrator, each Custodian and each
Servicer to the extent provided in this Agreement, each Servicing Agreement
and
each Custodial Agreement; provided,
however,
that in
the case of the Trustee, such reimbursable amounts to the Trustee payable from
the Interest Remittance Amount and Principal Remittance Amount may not exceed
$200,000 during any Anniversary Year. In the event that the Trustee incurs
reimbursable amounts in excess of $200,000, it may seek reimbursement for such
amounts in subsequent Anniversary Years, but in no event shall more than
$200,000 be reimbursed to the Trustee per Anniversary Year. Notwithstanding
the
foregoing, costs and expenses incurred by the Trustee pursuant to Section
6.14(a) in connection with any transfer of servicing shall be excluded from
the
$200,000 per Anniversary Year limit on reimbursable amounts. For the avoidance
of doubt, (i) the Interest Remittance Amount available on each Swap Payment
Date
for distributions to the Swap Account shall be equal to the Interest Remittance
Amount on the related Distribution Date and (ii) the Interest Remittance Amount
for each Distribution Date shall be calculated without regard to any
distributions to the Swap Account on the related Swap Payment Date.
32
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
JPMorgan:
JPMorgan Chase Bank, National Association.
Latest
Possible Maturity Date:
The
Distribution Date occurring in September 2041.
LBH:
▇▇▇▇▇▇
Brothers Holdings Inc., or any successor in interest.
LIBOR:
(a)
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 British Bankers’
Association (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.
(b) 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 first
from
Reuters’ “page LIBOR 01,” or if such page is not available, then from
Bloomberg’s page “BBAM.” If any 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 (a copy of which
shall be furnished to the Trustee and any NIMS Insurer), which opinion shall
be
an expense reimbursed from the Certificate Account pursuant to Section 4.02,
that the selection of such index will not cause any of the REMICs to lose their
classification as REMICs for federal income tax purposes.
33
(c) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the Certificate Interest 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
Certificate:
Any
Class A1, Class A2, Class A3, Class A4, Class M1, Class M2, Class M3, Class
M4,
Class M5, Class M6, Class M7, Class M8, Class M9, Class B1 or Class B2
Certificate.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for any LIBOR Certificate.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the applicable
Servicer has determined that all amounts that it expects to recover on behalf
of
the Trust Fund from or on account of such Mortgage Loan have been
recovered.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or a Servicer in connection
with the liquidation of any defaulted Mortgage Loan and are not recoverable
under the related Primary Mortgage Insurance Policy, if any, including, without
limitation, foreclosure and rehabilitation expenses, legal expenses and
unreimbursed amounts, if any, expended pursuant to Sections 9.06, 9.16 or
9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff or otherwise, or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any amounts remaining in the
related Escrow Account.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgaged Property.
Lower
Tier Interest:
As
described in the Preliminary Statement.
Lower
Tier REMIC 1 Uncertificated Regular Interests:
Lower
Tier Interests of REMIC 1 constituting regular interests held in uncertificated
form pursuant to a Section 7.01(c) Purchase Event.
LPMI
Policy:
A
Primary Mortgage Insurance Policy issued by a Qualified Insurer pursuant to
which the related premium is to be paid from payments by the
mortgagee.
34
LTURI-holder:
The
holder of Lower Tier REMIC 1 Uncertificated Regular Interests, which upon the
occurrence of a Section 7.01(c) Purchase Event shall be the Master Servicer
or
its designee, and including any trustee in its capacity as trustee of any
privately placed securitization.
M1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal Amount
of the Senior Certificates after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M1
Certificates immediately prior to such Distribution Date exceeds (y) the M1
Target Amount.
M1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 65.70% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1 Certificates, in each case
after giving effect to distributions on such Distribution Date and (ii) the
Class Principal Amounts of the Class M2 Certificates immediately prior to such
Distribution Date exceeds (y) the M2 Target Amount.
M2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 73.40% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1 and Class M2 Certificates,
in each case after giving effect to distributions on such Distribution Date
and
(ii) the Class Principal Amount of the Class M3 Certificates immediately prior
to such Distribution Date exceeds (y) the M3 Target Amount.
M3
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 77.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2 and Class M3
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M4
Certificates immediately prior to such Distribution Date exceeds (y) the M4
Target Amount.
35
M4
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 80.70% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3 and
Class M4 Certificates, in each case after giving effect to distributions on
such
Distribution Date and (ii) the Class Principal Amount of the Class M5
Certificates immediately prior to such Distribution Date exceeds (y) the M5
Target Amount.
M5
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 83.80% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M6
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4 and Class M5 Certificates, in each case after giving effect to distributions
on such Distribution Date and (ii) the Class Principal Amount of the Class
M6
Certificates immediately prior to such Distribution Date exceeds (y) the M6
Target Amount.
M6
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 85.70% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M7
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class M5 and Class M6 Certificates, in each case after giving effect to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class M7 Certificates immediately prior to such Distribution Date exceeds
(y) the M7 Target Amount.
36
M7
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 88.00% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M8
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class M5, Class M6 and Class M7 Certificates, in each case after giving
effect to distributions on such Distribution Date and (ii) the Class Principal
Amount of the Class M8 Certificates immediately prior to such Distribution
Date
exceeds (y) the M8 Target Amount.
M8
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 89.70% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M9
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class M5, Class M6, Class M7 and Class M8 Certificates, in each case after
giving effect to distributions on such Distribution Date and (ii) the Class
Principal Amount of the Class M9 Certificates immediately prior to such
Distribution Date exceeds (y) the M9 Target Amount.
M9
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 91.50% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
Master
Servicer:
▇▇▇▇▇
Fargo Bank, N.A., or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicing Fee:
As to
any Distribution Date, any investment earnings from amounts on deposit in the
Certificate Account for the four-day period from and including four Business
Days immediately preceding the related Distribution Date to and including the
related Distribution Date minus any Trustee Fee and Custodial Compensation
for
such Distribution Date.
Material
Defect:
As
defined in Section 2.02(c) hereof.
Maximum
Interest Rate:
The
Pool 1 Maximum Interest Rate, the Pool 2 Maximum Interest Rate or the
Subordinate Maximum Interest Rate, as applicable.
37
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
MGIC:
Mortgage Guaranty Insurance Corporation, or any successor in
interest.
MGIC
Letter Agreement:
With
respect to the Bulk PMI Policy with MGIC, the Terms Letter for MGIC Mortgage
Insurance Coverage or approximately $181,435,980.90 in principal balance of
insurance mortgage loans dated as of August 23, 2006, among ▇▇▇▇▇▇ Brothers
Inc., MGIC and the Trustee.
Monthly
Excess Cashflow:
For
each Distribution Date, the aggregate of any remaining Interest Remittance
Amount pursuant to Section 5.02(d)(v) for
such
date, any Principal Distribution Amount remaining after distribution pursuant
to
Section 5.02(e)(ii)(C) or 5.02 (e)(iii)(O) for such date, and any Aggregate
Overcollateralization Release Amount for such date.
Moody’s:
▇▇▇▇▇’▇
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee pursuant to this
Agreement.
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured by
each such Mortgage conveyed, transferred, sold, assigned to or deposited with
the Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation each Mortgage Loan listed on the Mortgage Loan Schedule, as amended
from time to time.
Mortgage
Loan Administrator:
Aurora
Loan Services LLC, or any successor in interest.
Mortgage
Loan Sale Agreement:
The
mortgage loan sale and assignment agreement dated as of August 1, 2006, for
the
sale of the Mortgage Loans by the Seller to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii)
the city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate at origination;
(v) the monthly payment of principal and interest at origination;
(vi) Mortgage Pool in which such Mortgage Loan is included; (vii) the
applicable Servicer servicing such Mortgage Loan and the applicable Servicing
Fee Rate; (viii) the applicable Custodian with respect to the Mortgage File
related to such Mortgage Loan; (ix) where applicable, whether such Mortgage
Loan
is covered by any Bulk PMI Policy or LPMI Policy and the applicable PMI Insurer
and the applicable Insurance Fee Rate; (x) whether such Mortgage Loan is subject
to a Prepayment Premium for voluntary prepayments by the Mortgagor, the term
during which such Prepayment Premiums are imposed and the methods of calculation
of the Prepayment Premium; and (xi) whether such Mortgage Loan is a Simple
Interest Mortgage Loan. The Depositor shall be responsible for providing the
Trustee and the Master Servicer with all amendments to the Mortgage Loan
Schedule.
38
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Pool:
Any of
Pool 1 or Pool 2.
Mortgage
Rate:
With
respect to any Mortgage Loan, the per annum rate at which interest accrues
on
such Mortgage Loan, as determined under the related Mortgage Note as reduced
by
any Relief Act Reductions.
Mortgaged
Property:
Either
of (x) the fee simple 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.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Excess Spread:
With
respect to any Distribution Date, (A) the fraction, expressed as a percentage,
the numerator of which is equal to the product of (i) the amount, if any, by
which (a) the aggregate of the Interest Remittance Amounts for each Mortgage
Pool for such Distribution Date (as reduced by the aggregate Credit Risk
Manager’s Fee) exceeds (b) the Current Interest payable with respect to the
Certificates for such date and (ii) twelve, and the denominator of which is
the
Aggregate Pool Balance for such Distribution Date, multiplied
by (B) a
fraction, the numerator of which is thirty and the denominator of which is
the
greater of thirty and the actual number of days in the immediately preceding
calendar month minus
(C)
the
product, expressed as a percentage, of (i) the amount of any Net Swap Payment
owed to the Swap Counterparty for such Distribution Date divided by the
Aggregate Pool Balance as of the beginning of the related Collection Period
and
(ii) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date, plus
(D)
the
product, expressed as a percentage, of (i) the sum of (a) the amount of any
Net
Swap Payment and (b) any Interest Rate Cap Payment received by the Supplemental
Interest Trust for such Distribution Date divided by the Aggregate Pool Balance
as of the beginning of the related Collection Period and (ii) a fraction, the
numerator of which is 360 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date.
Net
Funds Cap:
The
Pool 1 Net Funds Cap, the Pool 2 Net Funds Cap or the Subordinate Net Funds
Cap,
as the context requires.
39
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds net
of
(i) unreimbursed expenses and (ii) any unreimbursed Advances, if any, received
and retained in connection with the liquidation of such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the Aggregate
Expense Rate for such Mortgage Loan.
Net
Prepayment Interest Shortfall:
With
respect to any Distribution Date, the excess, if any, of any Prepayment Interest
Shortfalls with respect to the Mortgage Loans for such date over any amounts
paid with respect to such shortfalls by the Servicers pursuant to the Servicing
Agreements.
Net
Simple Interest Excess:
With
respect to any Distribution Date, the excess, if any, of (a) the amount of
the
payments received by the Servicers and the Master Servicer in the related
Collection Period allocable to interest in respect of Simple Interest Mortgage
Loans, calculated in accordance with the Simple Interest Method, net of the
related Servicing Fees, over (b) 30 days’ interest at the weighted average (by
principal balance) of the Net Mortgage Rates of the Simple Interest Mortgage
Loans as of the first day of the related Collection Period, as determined by
the
related Servicer, on the aggregate principal balance of such Simple Interest
Mortgage Loans for such Distribution Date, carried to six decimal places,
rounded down, and calculated on the basis of a 360-day year consisting of twelve
30-day months. For this purpose, the amount of interest received in respect
of
the Simple Interest Mortgage Loans in any month shall be deemed (i) to include
any Advances of interest made by the related Servicer, the Master Servicer
or
the Trustee (solely in its capacity as successor master servicer) in such month
in respect of such Simple Interest Mortgage Loans and (ii) to be reduced by
any
amounts paid to the related Servicer, the Master Servicer or the Trustee (solely
in its capacity as successor master servicer) in such month in reimbursement
of
Advances previously made by the Servicer, the Master Servicer or the Trustee
(solely in its capacity as successor master servicer) in respect of such Simple
Interest Mortgage Loans.
Net
Simple Interest Shortfall:
With
respect to any Distribution Date, the excess, if any, of (a) 30 days’ interest
at the weighted average (by principal balance) of the Net Mortgage Rates of
the
Simple Interest Mortgage Loans as of the first day of the related Collection
Period, as determined by the related Servicer, on the aggregate principal
balance of such Simple Interest Mortgage Loans for such Distribution Date,
carried to six decimal places, rounded down, and calculated on the basis of
a
360-day year consisting of twelve 30-day months, over (b) the amount of the
payments received by the related Servicer or the Master Servicer in the related
Collection Period allocable to interest in respect of such Simple Interest
Mortgage Loans, calculated in accordance with the Simple Interest Method, net
of
the related Servicing Fees.
Net
Swap Payment:
With
respect to each Swap Payment Date, the sum of (i) net payment required to be
made pursuant to the terms of the Swap Agreement, which net payment shall not
take into account any Swap Termination Payment, and (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided in
the
Swap Agreement, as calculated by the Swap Counterparty and furnished to the
Securities Administrator.
40
Net
WAC Rate:
With
respect to any Distribution Date (and the related Accrual Period), a per annum
rate equal to the weighted average of the Net Mortgage Rates of the Mortgage
Loans as of the first day of the related Collection Period (not including for
this purpose Mortgage Loans for which prepayments in full have been received
and
distributed in the month prior to that Distribution Date).
NIM
Redemption Amount:
As
defined in Section 7.01(b).
NIM
Securities:
Any net
interest margin securities issued by a trust or other special purpose entity,
the principal assets of such trust including the Class P and Class X
Certificates and the payments received thereon, which principal assets back
such
securities.
NIMS
Agreement:
Any
agreement pursuant to which the NIM Securities are issued.
NIMS
Insurer:
One or
more insurers issuing financial guaranty insurance policies in connection with
the issuance of NIM Securities.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As
defined in Section 3.03(j).
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Notional
Amount:
Not
applicable.
Notional
Certificate:
Not
applicable.
Offered
Certificates:
The
Class A1, Class A2, Class A3, Class A4, Class M1, Class M2, Class M3, Class
M4,
Class M5, Class M6, Class M7, Class M8 and Class M9 Certificates.
Offering
Document:
Each of
the Prospectus and the Private Placement Memorandum.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee, and which may be in-house or outside counsel to the Depositor, the
Master Servicer or the Trustee but which must be Independent outside counsel
with respect to any such opinion of counsel concerning the transfer of any
Residual Certificate or concerning certain matters with respect to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or the taxation,
or the federal income tax status, of each REMIC.
Option
One: Option
One Mortgage Corporation.
Original
Mortgage Loan:
As
described in the Preliminary Statement.
41
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
Overcollateralization
Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the Aggregate
Pool Balance for such Distribution Date exceeds (y) the aggregate Class
Principal Amount of the LIBOR Certificates after giving effect to distributions
on such Distribution Date.
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the Targeted
Overcollateralization Amount exceeds (y) the Overcollateralization Amount for
such Distribution Date, calculated for this purpose after giving effect to
the
reduction on such Distribution Date of the Certificate Principal Amounts of
the
LIBOR Certificates resulting from the distribution of the Principal Distribution
Amount on such Distribution Date, but prior to allocation of any Applied Loss
Amount on such Distribution Date.
Overcollateralization
Floor:
An
amount equal to $5,888,297.97 (approximately 0.50% of the Cut-off Date
Balance).
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the applicable Servicer during any Collection Period in addition
to
the Scheduled Payment due on such Due Date, intended by the related Mortgagor
to
be applied on a subsequent Due Date or Due Dates.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate, its percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any LIBOR Certificate, the Percentage
Interest evidenced thereby shall equal the Certificate Principal Amount thereof
divided by the Class Principal Amount of all Certificates of the same Class.
With respect to the Class X, Class P, Class R and Class LT-R Certificates,
the
Percentage Interest evidenced thereby shall be as specified on the face thereof,
or otherwise be equal to 100%.
Permitted
Servicing Amendment:
Any
amendment to any Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
42
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
PMI
Insurance Premium:
With
respect to each Distribution Date and each Mortgage Loan covered by a Bulk
PMI
Policy or other lender-paid Primary Mortgage Insurance Policy, the product
of
(a) one-twelfth of the applicable Insurance Fee Rate and (b) the Scheduled
Principal Balance of such Mortgage Loan as of the first day of the related
Collection Period.
PMI
Insurer:
MGIC
and PMI Mortgage.
PMI
Letter Agreement:
With
respect to the Bulk PMI Policy with PMI Mortgage, the Terms Letter for PMI
Mortgage Insurance Coverage dated as of August 30, 2006, among LBH, PMI Mortgage
and the Trustee.
PMI
Mortgage:
PMI
Mortgage Insurance Co.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 1.
Pool
1
Maximum Interest Rate:
For the
Group 1 Senior Certificates, for each Distribution Date on or before the
Distribution Date on which the aggregate Class Principal Amount of the Group
2
Senior Certificates have been reduced to zero, an annual rate equal to (a)
the
product, expressed as a percentage, of (1) the amount, if any, by which the
weighted average of the excess of the maximum “lifetime” Mortgage Rates, as
specified in the related Mortgage Notes for the Pool 1 Mortgage Loans exceeds
the applicable weighted average Aggregate Expense Rate and (2) a fraction,
the
numerator of which is 30 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of any
Net
Swap Payment owed by the Swap Counterparty on
the
related Swap Payment Date
allocable to Pool 1 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 1 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 1 as of the beginning of the
related Collection Period and (2) a fraction, the numerator of which is 360
and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) a fraction, expressed as a
percentage, the numerator of which is the amount of any Net Swap Payment owed
to
the Swap Counterparty on the related Swap Payment Date allocable to Pool 1
(based on the applicable Pool Percentage) and the denominator of which is the
Pool Balance for Pool 1 as of the beginning of the related Collection Period
and
(2) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date.
Pool
1
Net Funds Cap:
With
respect to any Distribution Date and the Group 1 Senior Certificates, a per
annum rate equal to (a) a fraction, expressed as a percentage, the numerator
of
which is the product of (1) the excess, if any, of (i) the Pool 1 Optimal
Interest Remittance Amount for such date over (ii) any Net Swap Payment or
Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date allocable to Pool 1 (based
on
the applicable Pool Percentage) and (2) 12, and the denominator of which is
the
Pool Balance for Pool 1 as of the first day of the related Collection Period
(excluding for this purpose any Mortgage Loans in Pool 1 for which any Principal
Prepayments in full have been deposited into the Certificate Account and
distributed therefrom in accordance with Section 5.02 during the month prior
to
such Distribution Date), multiplied by (b) a fraction, the numerator of which
is
30 and the denominator of which is the actual number of days in the Accrual
Period related to such Distribution Date.
43
Pool
1
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a) the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 1 as of the first day of the related Collection Period, and (ii)
12 and (b) the Pool Balance for Pool 1 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any Mortgage
Loans in Pool 1 for which any Principal Prepayments in full have been deposited
into the Certificate Account and distributed therefrom in accordance with
Section 5.02 during the month prior to such Distribution Date).
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 2.
Pool
2
Maximum Interest Rate:
For the
Group 2 Senior Certificates, and for each Distribution Date on or before the
Distribution Date on which the aggregate Class Principal Amounts of the Group
1
Senior Certificates have been reduced to zero, an annual rate equal to (a)
the
product, expressed as a percentage, of (1) the amount, if any, by which the
weighted average of the excess of the maximum “lifetime” Mortgage Rates, as
specified in the related Mortgage Notes for the Pool 2 Mortgage Loans exceeds
the applicable weighted average Aggregate Expense Rate and (2) a fraction,
the
numerator of which is 30 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of any
Net
Swap Payment owed by the Swap Counterparty on the related Swap Payment Date
allocable to Pool 2 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 2 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 2 as of the beginning of the
related Collection Period and (2) a fraction, the numerator of which is 360
and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) a fraction, expressed as a
percentage, the numerator of which is the amount of any Net Swap Payment owed
to
the Swap Counterparty on the related Swap Payment Date allocable to Pool 2
(based on the applicable Pool Percentage) and the denominator of which is the
Pool Balance for Pool 2 as of the beginning of the related Collection Period
and
(2) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date.
Pool
2
Net Funds Cap:
With
respect to any Distribution Date and the Group 2 Senior Certificates, a per
annum rate equal to (a) a fraction, expressed as a percentage, the numerator
of
which is the product of (1) the excess, if any, of (i) the Pool 2 Optimal
Interest Remittance Amount for such date over (ii) any Net Swap Payment or
Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date allocable to Pool 2 (based
on
the applicable Pool Percentage) and (2) 12, and the denominator of which is
the
Pool Balance for Pool 2 as of the first day of the related Collection Period
(excluding for this purpose any Mortgage Loans in Pool 2 for which any Principal
Prepayments in full have been deposited into the Certificate Account and
distributed therefrom in accordance with Section 5.02 during the month prior
to
such Distribution Date), multiplied by (b) a fraction, the numerator of which
is
30 and the denominator of which is the actual number of days in the Accrual
Period related to such Distribution Date.
44
Pool
2
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a) the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 2 as of the first day of the related Collection Period, and (ii)
12 and (b) the Pool Balance for Pool 2 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any Mortgage
Loans in Pool 2 for which any Principal Prepayments in full have been deposited
into the Certificate Account and distributed therefrom in accordance with
Section 5.02 during the month prior to such Distribution Date).
Pool
Balance:
With
respect to each Mortgage Pool, the aggregate of the Scheduled Principal Balances
of all Mortgage Loans in such Mortgage Pool at the date of
determination.
Pool
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the fraction, expressed
as a percentage, the numerator of which is the Pool Balance for such Mortgage
Pool for such date and the denominator of which is the Aggregate Pool Balance
for such date.
Pool
Subordinate Amount:
As to
each Mortgage Pool and any Distribution Date, the excess of the Pool Balance
for
such Mortgage Pool as of the first day of the immediately preceding Collection
Period over (i) the Class Principal Amount of the Group 1 Senior Certificates
(in the case of Pool 1) or (ii) the Class Principal Amount of the Group 2 Senior
Certificates (in the case of Pool 2) immediately prior to the related
Distribution Date.
PPTL
Premium:
With
respect to any First Payment Default Mortgage Loan, the excess, if any, of
the
PPTL Purchase Price over the Purchase Price.
PPTL
Purchase Price:
The
purchase price paid for a First Payment Default Mortgage Loan which is required
to be repurchased by a Transferor pursuant to the related PPTLS.
PPTLS:
As to
any First Payment Default Mortgage Loan, (i)
the
Purchase Price and Terms Letter between ▇▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇
Brothers Holdings, Inc. and People’s Choice Home Loan Inc. dated as of May 1,
2006, (ii) the Purchase Price and Terms Letter between ▇▇▇▇▇▇ Brothers Bank,
FSB
and Option One Mortgage Corporation dated as of June 16, 2006 and (iii) the
Purchase Price and Terms Letter between ▇▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇
Brothers Holdings Inc. and People’s Choice Home Loan, Inc. dated as of April 28,
2006.
Prepayment
Interest Shortfall:
With
respect to any full or partial Principal Prepayment of a Mortgage Loan, the
excess, if any, of (i) one full month’s interest at the applicable Mortgage Rate
(as reduced by the Servicing Fee, as applicable, in the case of Principal
Prepayments in full) on the outstanding principal balance of such Mortgage
Loan
immediately prior to such prepayment over (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment.
45
Prepayment
Period:
With
respect to any Distribution Date and any Principal Prepayment in full in respect
of any Mortgage Loan serviced by Aurora, the period from the seventeenth
(17th)
day of
the preceding calendar month through the sixteenth (16th)
day of
the calendar month in which the Distribution Date occurs (except in the case
of
the September 2006 Distribution Date, for which the related Prepayment Period
will be the period from August 1, 2006 through September 16, 2006); with respect
to any Distribution Date and any Principal Prepayment in part in respect of
any
Mortgage Loan serviced by Aurora, the calendar month immediately preceding
the
month in which such Distribution Date occurs; with respect to any Distribution
Date and any Principal Prepayment in respect of any Mortgage Loan serviced
by
Countrywide Servicing, whether in part or in full, (including any Principal
Prepayment due to liquidation of a Mortgage Loan), the period from and including
the sixteenth (16th) day of the preceding calendar month through and including
the fifteenth (15th) day of the calendar month in which such Distribution Date
occurs (except in the case of the September 2006 Distribution Date, for which
such Prepayment Period shall be the period from August 1, 2006 through and
including September 15,
2006;
with respect to any Distribution Date and any Principal Prepayment in respect
of
any Mortgage Loan serviced by GMAC, whether in part or in full, the calendar
month immediately preceding the month in which such Distribution Date occurs;
with respect to any Distribution Date and any Principal Prepayment in full
in
respect of any Mortgage Loan serviced by HomEq, the period from the sixteenth
(16th)
day of
the preceding calendar month through the fifteenth (15th)
day of
the calendar month in which the Distribution Date occurs (except in the case
of
the September 2006 Distribution Date, for which the related Prepayment Period
will be the period from August 1, 2006 through September 15, 2006); with respect
to any Distribution Date and any Principal Prepayment in part in respect of
any
Mortgage Loan serviced by HomEq, the calendar month immediately preceding the
month in which such Distribution Date occurs; with respect to any Distribution
Date and any Principal Prepayment in respect of any Mortgage Loan serviced
by
Option One, whether in part or in full, (including any Principal Prepayment
due
to liquidation of a Mortgage Loan), the period from and including the fifteenth
(15th) day of the preceding calendar month through and including the fourteenth
(14th) day of the calendar month in which such Distribution Date occurs (except
in the case of the September 2006 Distribution Date, for which such Prepayment
Period shall be the period from August 1, 2006 through and including
September 14,
2006;
with respect to any Distribution Date and any Principal Prepayment in full
in
respect of any Mortgage Loan serviced by JPMorgan (including any Principal
Prepayment due to liquidation of a Mortgage Loan), the period from and including
the fifteenth (15th) day of the preceding calendar month through and including
the fourteenth (14th) day of the calendar month in which such Distribution
Date
occurs (except in the case of the September 2006 Distribution Date, for which
such Prepayment Period shall be the period from August 1, 2006 through and
including September 14,
2006,
with respect to any Distribution Date and any Principal Prepayment in part
in
respect of any Mortgage Loan serviced by JPMorgan, the calendar month
immediately preceding the month in which such Distribution Date occurs, and
in
the case of the Distribution Date related to the transfer of servicing from
Option One to JPMorgan, for which the related Prepayment Period shall be the
period beginning the first day of the preceding calendar month through the
fourteenth (14th)
day of
the calendar month in which the Distribution Date occurs); with respect to
any Distribution Date and any Principal Prepayment in full in respect of any
Mortgage Loan serviced by ▇▇▇▇▇
Fargo, the period from the fourteenth (14th) day of the preceding calendar
month
through the thirteenth (13th) day of the calendar month in which the
Distribution Date occurs (except in the case of the September 2006 Distribution
Date, for which the related Prepayment Period will be the period from August
1,
2006 through September 13,
2006,
and in the case of the Distribution Date relating to the transfer of servicing
from Option One to ▇▇▇▇▇ Fargo, for which the related Prepayment Period shall
be
the period beginning the first day of the preceding calendar month through
the
thirteenth (13th) day of the calendar month in which the Distribution Date
occurs);
and with respect to any Distribution Date and any Principal Prepayment in part
in respect of any Mortgage Loan serviced by ▇▇▇▇▇ Fargo, the calendar month
immediately preceding the month in which such Distribution Date
occurs.
46
Prepayment
Premiums:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage
Loan.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan, including
any Bulk PMI Policy or any LPMI Policy, as evidenced by a policy or certificate,
whether such policy is obtained by the originator, the lender, the borrower
or
the Seller on behalf of the Trust Fund.
Prime
Rate:
The
prime rate of the United States money center commercial banks as published
in
The
Wall Street Journal.
Principal
Distribution Amount:
With
respect to each Mortgage Pool and any Distribution Date, an amount equal to
the
Principal Remittance Amount for such Mortgage Pool for such date minus
the
Aggregate Overcollateralization Release Amount, if any, allocable to such
Mortgage Pool, for such Distribution Date (based on the applicable Pool
Percentage).
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the related Servicing Agreement.
Principal
Remittance Amount:
With
respect to each Mortgage Pool and any Distribution Date, (a) the sum of (i)
all
principal collected (other than Payaheads) or advanced in respect of Scheduled
Payments on the Mortgage Loans in such Mortgage Pool during the related
Collection Period whether by the applicable Servicers, the Master Servicer
or
the Securities Administrator (less unreimbursed Advances due to the Master
Servicer, any Servicer or the Securities Administrator with respect to the
related Mortgage Loans, to the extent allocable to principal), (ii) all
Principal Prepayments in full or in part received during the related Prepayment
Period on the Mortgage Loans in such Mortgage Pool, (iii) the outstanding
principal balance of each Mortgage Loan in such Mortgage Pool that was purchased
from the Trust Fund by the Seller or the Transferor during the related
Prepayment Period or the NIMS Insurer (in the case of certain Mortgage Loans
90
days or more delinquent) from such Mortgage Pool, (iv) the portion of the
Purchase Price (or the PPTL Purchase Price (excluding any PPTL Premium) or
FPD
Purchase Price (excluding any FPD Premium) payable with respect to a First
Payment Default Mortgage Loan or Delinquency Default Mortgage Loan) or
Substitution Amount paid with respect to any Deleted Mortgage Loan in such
Mortgage Pool during the related Prepayment Period allocable to principal and
(v) all Net Liquidation Proceeds, Insurance Proceeds, any Subsequent Recovery
and other recoveries collected with respect to the Mortgage Loans in such
Mortgage Pool during the related Prepayment Period, to the extent allocable
to
principal, as reduced by (b) to the extent not reimbursed from amounts otherwise
allocable to interest, the related Pool Percentage for such date of any other
costs, expenses or liabilities reimbursable to the Trustee, the Master Servicer,
the Securities Administrator, each Custodian and each Servicer to the extent
provided in this Agreement, each Servicing Agreement and each Custodial
Agreement and, with respect to the Trustee, to the extent the Interest
Remittance Amount is less than amounts reimbursable to the Trustee pursuant
to
Section 4.02, the product of (x) the applicable Pool Percentage for such
Distribution Date and (y) any amounts reimbursable during the related
Anniversary Year to the Trustee therefrom and not reimbursed from the Interest
Remittance Amount, or otherwise; provided,
however,
that
such reimbursable amounts from the Interest Remittance Amount and Principal
Remittance Amount may not exceed $200,000 in the aggregate during any
Anniversary Year. In the event that the Trustee incurs reimbursable amounts
in
excess of $200,000, it may seek reimbursement for such amounts in subsequent
Anniversary Years, but in no event shall more than $200,000 be reimbursed to
the
Trustee per Anniversary Year. Notwithstanding the foregoing, costs and expenses
incurred by the Trustee pursuant to Section 6.14(a) in connection with any
transfer of servicing shall be excluded from the $200,000 per Anniversary Year
limit on reimbursable amounts. For the avoidance of doubt, (i) the Principal
Remittance Amount available on each Swap Payment Date for distributions to
the
Swap Account shall be equal to the Principal Remittance Amount on the related
Distribution Date and (ii) the Principal Remittance Amount for each Distribution
Date shall be calculated without regard to any distributions to the Swap Account
on the related Swap Payment Date.
47
Private
Placement Memorandum:
The
private placement memorandum dated August 28, 2006, relating to the Class B1
and
Class B2 Certificates.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
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
prospectus supplement dated August 28, 2006, together with the accompanying
prospectus dated August 11, 2006, relating to the Offered
Certificates.
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
this Agreement, an amount equal to the sum of (a) 100% of the unpaid principal
balance of such Mortgage Loan; (b) accrued interest thereon at the applicable
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date in the Collection Period immediately preceding the
related Distribution Date; (c) the amount of any costs and damages incurred
by
the Trust Fund as a result of any violation of any applicable federal, state
or
local predatory- or abusive-lending law arising from or in connection with
the
origination of such Mortgage Loan; and (d) any unreimbursed Servicing Advances
with respect to such Mortgage Loan. The Master Servicer, each Servicer, each
Custodian (or the Trustee or the Securities Administrator, if applicable) shall
be reimbursed from the Purchase Price for any Mortgage Loan or related REO
Property for any Advances made or other amounts advanced with respect to such
Mortgage Loan that are reimbursable to the Master Servicer or such Servicer
under this Agreement or the related Servicing Agreement (or to the Trustee
or
the Securities Administrator, if applicable), together with any accrued and
unpaid compensation due to the Master Servicer, the Securities Administrator,
any Servicer, any Custodian or the Trustee hereunder or thereunder.
48
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Certificate Account and insuring a minimum, fixed or floating
rate
of return on investments of such funds, which contract or surety bond
shall:
(i) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Trustee may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(iii) provide
that if at any time then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Certificates or the NIM Securities, the Trustee shall terminate such contract
without penalty and be entitled to the return of all funds previously invested
thereunder, together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the Trustee;
(iv) provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Certificate Account not later than the Business Day prior to any
Distribution Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer will
not
adversely affect the ratings of the Certificates.
49
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan pursuant to
the
terms of this Agreement, a Mortgage Loan that, on the date of such substitution,
(i) has an outstanding Scheduled Principal Balance (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Scheduled Principal Balance), after application of all Scheduled
Payments due during or prior to the month of substitution, not in excess of,
and
not more than 5% less than, the outstanding Scheduled Principal Balance of
the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) has a Mortgage Rate not less than the Mortgage Rate
on
the Deleted Mortgage Loan, (iii) if applicable, has a maximum Mortgage Rate
not
less than the maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) if
applicable, has a minimum Mortgage Rate not less than the minimum Mortgage
Rate
of the Deleted Mortgage Loan, (v) if applicable, has a gross margin equal to
or
greater than the gross margin of the Deleted Mortgage Loan, (vi) is not a
Cooperative Loan unless the related Deleted Mortgage Loan was a Cooperative
Loan, (vii) if applicable, has a next adjustment date not later than the next
adjustment date on the Deleted Mortgage Loan, (viii) has the same Due Date
as
the Deleted Mortgage Loan, (ix) has a remaining stated term to maturity not
longer than 18 months and not more than 18 months shorter than the remaining
stated term to maturity of the related Deleted Mortgage Loan; provided,
that
in
no case should such substitute Mortgage Loan have a maturity date later than
the
Final Scheduled Distribution Date; (x) is current as of the date of
substitution, (xi) has a Loan-to-Value Ratio as of the date of substitution
equal to or lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan
as
of such date, (xii) has been underwritten by the Transferor in accordance with
the same underwriting criteria and guidelines as the Deleted Mortgage Loan,
(xiii) has a risk grading determined by the Seller at least equal to the risk
grading assigned on the Deleted Mortgage Loan, (xiv) is secured by the same
property type as the Deleted Mortgage Loan, (xv) conforms to each representation
and warranty applicable to the Deleted Mortgage Loan made in the related
Mortgage Loan Sale Agreement, (xvi) has the same or higher lien position as
the
Deleted Mortgage Loan, (xvii) is covered by a Primary Mortgage Insurance Policy
if the Deleted Mortgage Loan was so covered, (xviii) contains provisions
covering the payment of Prepayment Premium by the Mortgagor for early prepayment
of the Mortgage Loan at least as favorable as the Deleted Mortgage Loan and
(xix) for any Mortgage Loan to be substituted into Pool 1, has an original
Scheduled Principal Balance within the maximum dollar amount limitations
prescribed by ▇▇▇▇▇▇ ▇▇▇ for conforming one-to-four family residential mortgaged
properties. 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 Scheduled Principal Balances, the
Mortgage Rates described in clause (ii) hereof shall be determined on the basis
of weighted average Mortgage Rates, the risk gradings described in clause (xiii)
hereof shall be satisfied as to each such mortgage loan, the terms described
in
clause (ix) hereof shall be determined on the basis of weighted average
remaining term to maturity; provided,
that
the
stated maturity date of any Qualifying Substitute Mortgage Loan shall not be
later than the Final Scheduled Distribution Date, the Loan-to-Value Ratios
described in clause (xi) 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 (xv) hereof must be satisfied
as to each Qualifying Substitute Mortgage Loan or in the aggregate, as the
case
may be.
Rating
Agency:
Each of
DBRS, Fitch, ▇▇▇▇▇’▇ and S&P.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation,
minus
(ii)
Liquidation Proceeds received, to the extent allocable to principal, net of
amounts that are reimbursable therefrom to the Master Servicer or any Servicer
with respect to such Mortgage Loan (other than Advances of principal) including
expenses of liquidation. In determining whether a Realized Loss is a Realized
Loss of principal, Liquidation Proceeds shall be allocated, first, to payment
of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
50
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.
Record
Date:
With
respect to any Class of Book-Entry Certificates and any Distribution Date,
the
close of business on the Business Day immediately preceding such Distribution
Date. With respect to any Class of Definitive Certificates and any Distribution
Date, the last Business Day of the month immediately preceding the month in
which the Distribution Date occurs (or, in the case of the first Distribution
Date, the Closing Date).
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
Regulation
S Global Security:
The
meaning specified in Section 3.01(d).
Related
Senior Principal Distribution Amount:
For
each Mortgage Pool and any Distribution Date on or after the Stepdown Date
and
for as long as a Trigger Event is not in effect, an amount equal to the lesser
of (x) the Class Principal Amount of the Group 1 Senior Certificates (with
respect to Pool 1) or the sum of the Class Principal Amounts of the Group 2
Senior Certificates (with respect to Pool 2) immediately prior to such date
and
(y) the product of (a) the Senior Principal Distribution Amount and (b) the
related Senior Proportionate Percentage, in each case for such
date.
Related
Senior Priority:
With
respect to each of Group 1 Senior Certificates and Group 2 Senior Certificates,
the priority of distribution on the Senior Certificates relating to such Groups
as described in 5.02(e)(i)(A)(3) and 5.02(e)(i)(B)(3),
respectively.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit S 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 Paying Agent, the Securities Administrator, the Credit Risk
Manager, the 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 Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the Civil
Relief Act, any amount by which interest collectible on such Mortgage Loan
for
the Due Date in the related Collection Period is less than interest accrued
thereon for the applicable one-month period at the Mortgage Rate without giving
effect to such reduction.
51
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to the
Preliminary Statement.
REMIC
1:
As
described in the Preliminary Statement.
REMIC
2:
As
described in the Preliminary Statement.
REMIC
3:
As
described in the Preliminary Statement.
REMIC
3 Net Funds Cap:
For any
Distribution Date (and the related Accrual Period) and any Class of
Certificates, an amount equal to (i) the weighted average of the interest rates
on the Lower Tier Interests in REMIC 3 (other than an interest-only regular
interest), weighted in proportion to their Class Principal Amounts as of the
beginning of the related Accrual Period, multiplied by (ii) an amount equal
to
(a) 30, divided by (b) the actual number of days in the Accrual
Period.
REMIC
4:
As
described in the Preliminary Statement.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
REMIC
Swap Rate:
For
each Distribution Date (and the related Accrual Period), a per annum rate equal
to the product of: (i) the “Rate of Payment (%)” under the Swap Agreement for
such Distribution Date, as set forth in Annex C-1 to the Prospectus, (ii) 2,
and
(iii) the quotient of (a) the actual number of days in the related Accrual
Period divided by (b) 30.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Required
Reserve Fund Deposit:
With
respect to any Distribution Date on which the Net Excess Spread is less than
0.25%, the amount, if any by which (a) the product of 1.00% and the Aggregate
Pool Balance for such date exceeds (b) the amount on deposit in the Basis Risk
Reserve Fund immediately prior to such date. With respect to any Distribution
Date on which the Net Excess Spread is equal to or greater than 0.25%, the
amount, if any, by which (i) $1,000 exceeds the amount on deposit in the Basis
Risk Reserve Fund immediately prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amount of each Class of
Offered Certificates, the Class B1 Certificates and the Class B2 Certificates
has been reduced to zero, the Required Reserve Fund Deposit shall be
zero.
52
Residual
Certificate:
Any
Class R or Class LT-R Certificate.
Responsible
Officer:
When
used with respect to the Trustee, any vice president, assistant vice president,
the secretary, any assistant secretary, or any officer, working in its Corporate
Trust Office and having responsibility for the administration of this Agreement,
and any other officer to whom a matter arising under this Agreement may be
referred.
Restricted
Certificate:
Any
Class B1, Class B2, Class P, Class X, Class R or Class LT-R
Certificate.
Restricted
Global Security:
As
defined in Section 3.01(c).
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to the average of the Delinquency Rates for each of the three (or one and two,
in the case of the first and second Distribution Dates, respectively)
immediately preceding calendar months.
Rules:
As
defined in Section 6.20(c).
S&P:
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., or any successor in interest.
▇▇▇▇▇▇▇▇-▇▇▇▇▇
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 Exchange Act Signing Party that
complies with Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as amended from time to
time.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
(excluding all amounts of principal and interest that were due on or before
the
Cut-off Date, whenever received) and, in the case of an REO Property, an amount
equivalent to the Scheduled Payment that would have been due on the related
Mortgage Loan if such Mortgage Loan had remained in existence.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan (other than a Simple Interest Mortgage Loan)
as
of any Distribution Date, the principal balance of such Mortgage Loan at the
close of business on the Cut-off Date after giving effect to principal payments
due on or before the Cut-off Date, whether or not received, less an amount
equal
to principal payments due after the Cut-off Date, and on or before the Due
Date
in the related Collection Period, whether or not received from the Mortgagor
or
advanced by any Servicer or the Master Servicer, and all amounts allocable
to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the related Prepayment Period)
and (ii) any REO Property as of any Distribution Date, the Scheduled Principal
Balance of the related Mortgage Loan on the Due Date immediately preceding
the
date of acquisition of such REO Property by or on behalf of the Trustee (reduced
by any amount applied as a reduction of principal on the Mortgage Loan). With
respect to any Mortgage Loan as of the Cut-off Date, the principal balance
of
such Mortgage Loan as specified in the Mortgage Loan Schedule. The Scheduled
Principal Balance of any Liquidated Mortgage Loan shall be zero. In the case
of
a Simple Interest Mortgage Loan, references herein to such Mortgage Loan’s
Scheduled Principal Balance shall mean its actual unpaid principal balance.
The
actual unpaid principal balance of a Simple Interest Mortgage Loan with respect
to any Distribution Date shall be determined by subtracting from such Mortgage
Loan’s unpaid principal balance as of the end of the preceding Collection Period
the amount of the borrower’s fixed monthly payment for the related Collection
Period that is not allocated to the payment of interest applying the Simple
Interest Method.
53
Section
7.01(c) Purchase Event:
The
purchase of all the Lower Tier REMIC 1 Uncertificated Regular
Interests.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Administrator:
▇▇▇▇▇
Fargo Bank, N.A., not in its individual capacity but solely as Securities
Administrator, or any successor in interest, or if any successor Securities
Administrator shall be appointed as herein provided, then such successor
Securities Administrator.
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:
▇▇▇▇▇▇
Brothers Holdings Inc., or any successor in interest.
Seller
Remittance Amount:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Senior
Certificate:
Any
Class A1, Class A2, Class A3 or Class A4 Certificate.
Senior
Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of the aggregate Class Principal Amount of the
Subordinate Certificates and the Overcollateralization Amount (which amount,
for
purposes of this definition only, shall not be less than zero and assuming
for
purposes of this definition that the Principal Distribution Amount has been
distributed on such Distribution Date and no Trigger Event has occurred) and
the
denominator of which is the Aggregate Pool Balance for such Distribution Date,
in each case after giving effect to distributions on such Distribution
Date.
Senior
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
lesser of (x) the aggregate Principal Distribution Amount for both Mortgage
Pools and (y) the amount, if any by which (A) the aggregate Class Principal
Amount of the Senior Certificates immediately prior to such Distribution Date
exceeds (B) the Senior Target Amount.
54
Senior
Proportionate Percentage:
With
respect to Pool 1 and any Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Principal Remittance Amount for Pool
1
for such Distribution Date and the denominator of which is the aggregate of
the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution Date.
With respect to Pool 2 and any Distribution Date, the fraction, expressed as
a
percentage, the numerator of which is the Principal Remittance Amount for Pool
2
for such Distribution Date and the denominator of which is the aggregate of
the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution Date.
Senior
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 55.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the Collection Period exceeds (ii) the
Overcollateralization Floor.
Servicer
Remittance Date:
The day
in each calendar month on which each Servicer (other than Countrywide Servicing)
is required to remit payments to the Certificate Account, as specified in the
related Servicing Agreement, which is the 18th
day of
each calendar month (or, if such 18th
day is
not a Business Day, the next succeeding Business Day). With respect Countrywide
Servicing, the 24th
day of
each calendar month (or, if such 24th
day is
not a Business Day, the preceding Business Day).
Servicers:
As of
the Closing Date, each of Aurora, Countrywide Servicing, GMAC, HomEq, JPMorgan,
Option One or ▇▇▇▇▇ Fargo, or any of their respective successors in
interest.
Service(s)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments on
the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 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
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Advances (including reasonable attorneys’ fees and disbursements) incurred
in the performance by a Servicer of its servicing obligations, including, but
not limited to, the cost of (a) the preservation, inspection, restoration and
protection of the Mortgaged Property, (b) any enforcement or administrative
or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage, (d) taxes, assessments, water rates, sewer rents and other
charges which are or may become a lien upon the Mortgaged Property, and Bulk
PMI
Policy premiums and fire and hazard insurance coverage and (e) any losses
sustained by a Servicer with respect to the liquidation of the Mortgaged
Property.
55
Servicing
Agreement:
Each
servicing agreement, subservicing agreement or reconstituted servicing agreement
identified on Exhibit E hereto, dated as of August 1, 2006, among the Seller,
the Master Servicer and one of the above-named Servicers, and any other
servicing agreement entered into between a successor servicer and the Seller
pursuant to the terms of this Agreement.
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:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
(a) one-twelfth of the Servicing Fee Rate and (b) the outstanding principal
balance of such Mortgage Loan as of the first day of the related Collection
Period.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the related Servicing
Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than each Servicer, each
Custodian, the Master Servicer, the Paying Agent and the Securities
Administrator, that is participating in the servicing function within the
meaning of Regulation AB, unless such Person’s activities relate only to 5% or
less of the Mortgage Loans.
Simple
Interest Method:
With
respect to a Simple Interest Mortgage Loan, the method of allocating a payment
to principal and interest, pursuant to which the portion of such payment that
is
allocated to interest is equal to the product of the applicable rate of interest
multiplied by the unpaid principal balance multiplied by the period of time
elapsed since the preceding payment of interest was made and divided by either
360 or 365, as specified in the related Mortgage Note and the remainder of
such
payment is allocated to principal.
Simple
Interest Mortgage Loan:
Any
Mortgage Loan specified as a “DSI Loan” in the Mortgage Loan Schedule attached
hereto as Schedule A. As of the Closing Date, there are no Simple Interest
Mortgage Loans included in the Trust Fund.
Sponsor:
▇▇▇▇▇▇
Brothers Holdings Inc., or any successor in interest.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Stepdown
Date:
The
earlier of (i) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Senior Certificates have each been
reduced to zero or (ii) the later to occur of (x) the Distribution Date in
September 2009 and (y) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose after giving effect to
payments or other recoveries in respect of the Mortgage Loans during the related
Collection Period but before giving effect to distributions on the Certificates
on such Distribution Date) is greater than or equal to 44.90%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one or
more discrete functions identified in Item 1122(d) of Regulation AB with respect
to the Mortgage Loans under the direction or authority of the Trustee, the
Master Servicer, a Custodian, a Servicer, the Securities Administrator or the
Credit Risk Manager.
56
Subordinate
Certificate:
Any
Class M Certificate or Class B Certificate.
Subordinate
Maximum Interest Rate:
For (i)
the Subordinate Certificates; (ii) the Group 1 Senior Certificates, with respect
to each Distribution Date after the Distribution Date on which the aggregate
Class Principal Amount of the Group 2 Senior Certificates has been reduced
to
zero and (iii) the Group 2 Senior Certificates, with respect to each
Distribution Date after the Distribution Date on which the Class Principal
Amount of the Group 1 Senior Certificates has been reduced to zero, the weighted
average of the Pool 1 Maximum Interest Rate and the Pool 2 Maximum Interest
Rate
for such Distribution Date, weighted on the basis of (i) in the case of any
Distribution Date on or before the date on which the aggregate Class Principal
Amounts of the Senior Certificates relating to any Mortgage Pool have been
reduced to zero, the Pool Subordinate Amount and (ii) for any Distribution
Date
thereafter, such weighting shall be on the basis of the Pool Balance of each
Mortgage Pool.
Subordinate
Net Funds Cap:
With
respect to any Distribution Date, an amount equal to the weighted average of
the
Pool 1 Net Funds Cap and the Pool 2 Net Funds Cap, weighted on the basis of
the
Pool Subordinate Amount for each Mortgage Pool; provided,
however,
that on
any Distribution Date after which the aggregate Class Principal Amount of the
Senior Certificates relating to any Mortgage Pool have been reduced to zero,
such weighting shall be on the basis of the Pool Balance of each Mortgage
Pool.
Subordinate
Priority:
To the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class
M8,
Class M9, Class B1 and Class B2 Certificates, sequentially, in that
order.
Subsequent
Recovery:
Any
amount recovered by a Servicer or the Master Servicer with respect to a
Liquidated Mortgage Loan with respect to which a Realized Loss was incurred
after the liquidation or disposition of such Mortgage Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer or Additional 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.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus
unpaid
interest thereon, any related unpaid Advances or Servicing Advances or unpaid
Servicing Fees and the amount of any costs and damages incurred by the Trust
Fund associated with a violation of any applicable federal, state or local
predatory or abusive lending law in connection with the origination of such
Deleted Mortgage Loan.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.07 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Account, the Interest Rate Cap Agreement, the Interest
Rate
Cap Account, the right to receive the Class X Distributable Amount as provided
in Section 5.02(f)(vi), the Class LT4-I interest in REMIC 4 and the right to
receive Class I Shortfalls.
57
Swap
Account:
The
account created pursuant to Section 5.07(a) of this Agreement.
Swap
Agreement:
The
interest rate swap agreement entered into by the Supplemental Interest Trust,
which agreement provides for, among other things, a Net Swap Payment to be
paid
pursuant to the conditions provided therein, together with any schedules,
confirmations or other agreements relating thereto, attached hereto as Exhibit
O.
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the sum
of
any Net Swap Payment and any Swap Termination Payment deposited into the Swap
Account, and any investment earnings thereon.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement, and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
HSBC Bank USA, National Association.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event with respect to which the Swap Counterparty is the sole Affected Party
or
an Additional Termination Event with respect to which the Swap Counterparty
is
the sole Affected Party has occurred.
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date and the related Swap Payment Date (and the
Accrual Period relating to such Distribution Date), the product of (i) the
Floating Rate Option (as defined in the Swap Agreement) for the related Swap
Payment Date, (ii) two, and (iii) the quotient of (a) the actual number of
days
in the Accrual Period for the LIBOR Certificates and (b) 30, as calculated
by
the Swap Counterparty and furnished to the Securities
Administrator.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Swap
Replacement Receipts:
As
defined in Section 5.09(a).
Swap
Replacement Receipts Account:
As
defined in Section 5.09(a).
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Trustee and the Securities Administrator.
58
Swap
Termination Receipts:
As
defined in Section 5.09(a).
Swap
Termination Receipts Account:
As
defined in Section 5.09(a).
Target
Amount:
With
respect to any Distribution Date, an amount equal to the Aggregate Pool Balance
for such Distribution Date minus
the
Targeted Overcollateralization Amount.
Targeted
Overcollateralization Amount:
For any
Distribution Date prior to the Stepdown Date, an amount equal to $22,374,594.48
(or approximately 1.90% of the Cut-off Date Balance). For any Distribution
Date
on or after the Stepdown Date and provided a Trigger Event is not in effect,
an
amount equal to the greater of (i) the lesser of (a) $22,374,594.48 (or
approximately 1.90% of the Cut-off Date Balance) and (b) 3.80% of the Aggregate
Pool Balance after giving effect to distributions on such Distribution Date
and
(ii) the Overcollateralization Floor. With respect to any Distribution Date
on
or after the Stepdown Date and provided a Trigger Event is in effect, an amount
equal to the Targeted Overcollateralization Amount for the immediately preceding
Distribution Date.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Reuters Telerate Service
(or such other page selected by the Securities Administrator as may replace
Page
3750 on that service for the purpose of displaying daily comparable rates on
prices).
Termination
Event:
As
defined in the Swap Agreement.
Termination
Price:
As
defined in Section 7.01.
Threshold
Calculation:
For
each PMI Insurer and each Distribution Date, the percentage obtained by dividing
(a) the aggregate of the maximum amount payable for each Mortgage Loan covered
under the related Bulk PMI Policy as of the last day of the related Collection
Period by (b) the aggregate Class Principal Amount of the Certificates as of
the
last day of the related Collection Period.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the aggregate of the Interest
Remittance Amounts for such date; (ii) the aggregate of the Principal Remittance
Amounts for such date; and (iii) all Prepayment Premiums collected during the
related Prepayment Period.
Transfer
Agreements:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to the Seller pursuant to the Transfer
Agreements.
59
Trigger
Event:
A
Trigger Event shall have occurred with respect to any Distribution Date if
either a Delinquency Event or a Cumulative Loss Trigger Event is in effect
for
such Distribution Date.
Trust
Fund:
The
corpus of the trust created pursuant to this Agreement, consisting of the
Mortgage Loans, the assignment of the Depositor’s rights under the Transfer
Agreements, the Mortgage Loan Sale Agreement and each Servicing Agreement,
such
amounts as shall from time to time be held in the Certificate Account, any
Custodial Account and any Escrow Account, the Swap Termination Receipts Account,
the Swap Replacement Receipts Account, the Cap Termination Receipts Account,
the
Cap Replacement Receipts Account, the Basis Risk Reserve Fund, the Insurance
Policies, any REO Property and the other items referred to in, and conveyed
to
the Trustee under, Section 2.01(a).
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
U.S.
Bank National Association, not in its individual capacity but solely as Trustee,
or any successor in interest, or if any successor trustee shall be appointed
as
herein provided, then such successor in interest or successor trustee, as the
case may be.
Trustee
Fee:
A fixed
annual fee of $3,500 which is paid by the Master Servicer from the Master
Servicing Fee.
UCC
or
Uniform Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from time
to
time.
Underwriter:
▇▇▇▇▇▇
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any LIBOR Certificate, the aggregate of
all
Basis Risk Shortfalls with respect to such Certificate remaining unpaid from
previous Distribution Dates, plus interest accrued thereon at the applicable
Certificate Interest Rate (calculated without giving effect to the applicable
Net Funds Cap) but limited to a rate no greater than the applicable Maximum
Interest Rate.
Upper
Tier REMIC:
REMIC
4.
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement, 97.00% of all Voting Interests shall
be
allocated to the LIBOR Certificates. Voting Interests shall be allocated among
the Classes of LIBOR Certificates (and among the Certificates within each such
Class) in proportion to their Class Principal Amounts (or Certificate Principal
Amounts). At all times during the term of this Agreement, 1% of all Voting
Interests shall be allocated to each of the Class P, Class R and Class X
Certificates while they remain outstanding. Voting Interests shall be allocated
among the other Classes of Certificates (and among the Certificates within
each
such Class) in proportion to their Class Principal Amounts (or Certificate
Principal Amounts) or Percentage Interests. In the case of the purchase by
the
Master Servicer of the Lower Tier REMIC 1 Uncertificated Regular Interests
pursuant to a Section 7.01(c) Purchase Event, the LTURI-holder shall be
allocated 100% of the Voting Interests and upon such purchase any provision
in
this Agreement which requires a vote by, a direction or notice given by, an
action taken by, a request in writing by or the consent of, any percentage
of
the Holders of the Certificates or any Class of Certificates may be exercised
by
the LTURI-holder.
60
▇▇▇▇▇
Fargo:
▇▇▇▇▇
Fargo Bank, N.A.
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the terms
of the Mortgage Loans and reports of payments received from the Mortgagor on
such Mortgage Loans and payments to be made to the Securities Administrator
as
supplied to the Securities Administrator by the Master Servicer. The Securities
Administrator shall not be required to recompute, verify or recalculate the
information supplied to it by the Master Servicer, any Servicer or the Credit
Risk Manager.
|
Section
1.03.
|
Calculations
Respecting Accrued Interest.
|
Accrued
interest, if any, on any LIBOR Certificate shall be calculated based upon a
360-day year and the actual number of days in each Accrual Period.
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all payments of
principal and interest received on or with respect to the Mortgage Loans on
and
after the Cut-off Date (other than payments of principal and interest due on
or
before such date), and all such payments due after such date but received prior
to such date and intended by the related Mortgagors to be applied after such
date together with all of the Depositor’s right, title and interest in and to
the Certificate Account and all amounts from time to time credited to and the
proceeds of the Certificate Account (exclusive of investment earnings thereon),
any Custodial Accounts and all amounts from time to time credited to and the
proceeds of the Custodial Accounts, any Escrow Account established pursuant
to
Section 9.06 and any Basis Risk Reserve Fund established pursuant to Section
5.06 and all amounts from time to time credited to and the proceeds of each
such
account, any REO Property and the proceeds thereof, the Depositor’s rights under
any Insurance Policies related to the Mortgage Loans, the Depositor’s security
interest in any collateral pledged to secure the Mortgage Loans, including
the
Mortgaged Properties and any Additional Collateral, and any proceeds of the
foregoing, to have and to hold, in trust; and the Trustee declares that, subject
to the review provided for in Section 2.02, it has received and shall hold
the
Trust Fund, as trustee, in trust, for the benefit and use of the Holders of
the
Certificates and for the purposes and subject to the terms and conditions set
forth in this Agreement, and, concurrently with such receipt, has caused to
be
executed, authenticated and delivered to or upon the order of the Depositor,
in
exchange for the Trust Fund, Certificates in the authorized denominations
evidencing the entire ownership of the Trust Fund.
61
Concurrently
with the execution of this Agreement, the MGIC Letter Agreement and the PMI
Letter Agreement shall be delivered to the Trustee on behalf of the Issuing
Entity. In connection therewith, the Depositor hereby directs the Trustee
(solely in its capacity as such) and the Trustee is hereby authorized to execute
and deliver the MGIC Letter Agreement and the PMI Letter Agreement for the
benefit of the Certificateholders. The Seller, the Master Servicer, the
Securities Administrator, the Depositor, the Servicers and the
Certificateholders (by their acceptance of such Certificates) acknowledge and
agree that the Trustee is executing and delivering the MGIC Letter Agreement
and
the PMI Letter Agreement solely in its capacity as Trustee of the Trust Fund,
and not in its individual capacity.
Concurrently
with the execution of this Agreement, the Swap Agreement and the Interest Rate
Cap Agreement shall be delivered to the Securities Administrator. In connection
therewith, the Depositor hereby directs the Securities Administrator (solely
in
its capacity as such) and the Securities Administrator is hereby authorized
to
execute and deliver the Swap Agreement and the Interest Rate Cap Agreement
(each
on behalf of the Supplemental Interest Trust) for the benefit of, the
Certificateholders. The Seller, the Master Servicer, the Trustee, the Depositor,
the Servicers and the Certificateholders (by their acceptance of such
Certificates) acknowledge and agree that the Securities Administrator is
executing and delivering the Swap Agreement and the Interest Rate Cap Agreement
solely in its capacity as Securities Administrator of the Supplemental Interest
Trust and the Trust Fund, and not in its individual capacity. The Securities
Administrator shall have no duty or responsibility to enter into any other
swap
agreement upon the expiration or termination of the Swap Agreement or the
Interest Rate Cap Agreement.
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
Sale Agreement, including all rights of the Seller under each Servicing
Agreement and the Transfer Agreement (including the rights to enforce the
related Transferor’s obligation to repurchase First Payment Default Mortgage
Loans pursuant to the related PPTLS), but only to the extent assigned under
the
Mortgage Loan Sale Agreement. The Trustee hereby accepts such assignment, and
shall be entitled to exercise all the rights of the Depositor under the Mortgage
Loan Sale Agreement as if, for such purpose, it were the Depositor.
It
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be (i) a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home
Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a “High Cost Home Loan” as defined in the
Indiana Home Loan Practices Act effective January 1, 2005.
62
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance does
not
and is not intended to result in the creation or assumption by the Trustee
of
any obligation of the Depositor, the Seller or any other Person in connection
with the Mortgage Loans.
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
(b) In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or the Custodian acting on the Trustee’s behalf, the following
documents or instruments with respect to each Mortgage Loan (each a “Mortgage
File”) so transferred and assigned:
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, or in blank (in each case,
with all necessary intervening endorsements, as applicable) or with respect
to
any lost Mortgage Note, a lost note affidavit stating that the original Mortgage
Note was lost, misplaced or destroyed, together with a copy of the related
Mortgage Note;
(ii) the
original of any guarantee executed in connection with the Mortgage Note,
assigned to the Trustee;
(iii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording indicated thereon and the original
recorded power of attorney, with evidence of recording thereon. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage
or
power of attorney with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage or power
of
attorney has been lost, the Depositor shall deliver or cause to be delivered
to
the Trustee (or the Custodian), in the case of a delay due to recording, a
true
copy of such Mortgage or power of attorney, pending delivery of the original
thereof, together with an Officer’s Certificate of the Depositor certifying that
the copy of such Mortgage or power of attorney delivered to the Trustee (or
the
Custodian) is a true copy and that the original of such Mortgage or power of
attorney has been forwarded to the public recording office, or, in the case
of a
Mortgage or power of attorney that has been lost, a copy thereof (certified
as
provided for under the laws of the appropriate jurisdiction) and a written
Opinion of Counsel acceptable to the Trustee and the Depositor that an original
recorded Mortgage or power of attorney is not required to enforce the Trustee’s
interest in the Mortgage Loan;
63
(iv) the
original 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
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or the Custodian) is a true
copy and that the original of such agreement has been forwarded to the public
recording office;
(v) with
respect to each Non-MERS Mortgage Loan other than a Cooperative Loan, an
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank, without recourse or (B)
to
“U.S. Bank National Association, as Trustee of the Structured Asset Securities
Corporation Mortgage Loan Trust, 2006-BC2,” without recourse;
(vi) if
applicable, such original intervening assignments of the Mortgage, notice of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the originator, or, in
the
case of an Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Trustee and any NIMS Insurer that such original
Intervening Assignment is not required to enforce the Trustee’s interest in the
Mortgage Loan;
(vii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy (or, in lieu thereof, a commitment to issue
such title insurance policy with an original or certified copy of such title
insurance policy to follow as soon after the Closing Date as reasonably
practicable) or attorney’s opinion of title and abstract of title;
(viii) the
original Primary Mortgage Insurance Policy or certificate or, an electronic
certification evidencing the existence of the Primary Mortgage Insurance Policy
or certificate, if private mortgage guaranty insurance is required;
(ix) the
original of any security agreement, chattel mortgage or equivalent instrument
executed in connection with the Mortgage or as to any security agreement,
chattel mortgage or their equivalent instrument that cannot be delivered on
or
prior to the Closing Date because of a delay caused by the public recording
office where such document has been delivered for recordation, a photocopy
of
such document, pending delivery of the original thereof, together with an
Officer’s Certificate of the Depositor certifying that the copy of such security
agreement, chattel mortgage or their equivalent instrument delivered to the
Trustee (or the Custodian) is a true copy and that the original of such document
has been forwarded to the public recording office;
(x) with
respect to any Cooperative Loan, the Cooperative Loan Documents;
and
64
(xi) with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation
interest.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee, for
the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
(c) (i)
Assignments of Mortgage with respect to each Non-MERS Mortgage Loan other than
a
Cooperative Loan shall be recorded; provided, however, that such Assignments
need not be recorded if, on or prior to the Closing Date, the Depositor
delivers, at its own expense, an Opinion of Counsel addressed to the Trustee
(which must be Independent counsel) acceptable to the Trustee and the Rating
Agencies, to the effect that recording in such states is not required to protect
the Trustee’s interest in the related Non-MERS Mortgage Loans; provided,
further, that notwithstanding the delivery of any Opinion of Counsel, the Master
Servicer shall direct the applicable Servicer to submit each Assignment of
Mortgage for recording upon 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 Master Servicer, at the expense of
the
Depositor and with the cooperation of the applicable Servicer, shall direct
to
be properly recorded by each Servicer in each public recording office where
the
related Mortgages are recorded each Assignment of Mortgage referred to in
subsection (b)(v) above with respect to each Non-MERS Mortgage Loan.
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer shall direct the
applicable Servicer, at the expense of the Depositor, to take such actions
as
are necessary to cause the Trustee to be clearly identified as the owner of
each
such Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
With respect to each Cooperative Loan, the Master Servicer, at the expense
of
the Depositor and with the cooperation of the applicable Servicer, shall direct
such Servicer to take such actions as are necessary under applicable law in
order to perfect the interest of the Trustee in the related Mortgaged
Property.
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee or the Custodian on behalf of the Trustee under clause (b)(vii) above
and is not so delivered, the Depositor will provide a copy of such Title
Insurance Policy to the Trustee, or to the Custodian on behalf of the Trustee,
as promptly as practicable after the execution and delivery hereof, but in
any
case within 180 days of the Closing Date.
(e) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to any NIMS Insurer and 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 Certificate Account pursuant
to Section 4.01 have been so deposited. All original documents that are not
delivered to the Trustee or the Custodian on behalf of the Trustee shall be
held
by the Master Servicer or the applicable Servicer in trust for the benefit
of
the Trustee and the Certificateholders.
65
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
(a) The
Trustee, by execution and delivery hereof, acknowledges receipt by it or by
the
Custodian on its behalf of the Mortgage Files pertaining to the Mortgage Loans
listed on the Mortgage Loan Schedule, subject to review thereof by the Trustee,
or by the Custodian on behalf of the Trustee, under this Section 2.02. The
Trustee, or the Custodian on behalf of the Trustee, will execute and deliver
to
the Depositor, the Master Servicer, the Trustee and any NIMS Insurer on the
Closing Date an Initial Certification in the form annexed hereto as Exhibit
B-1
(or in the form annexed to the Custodial Agreement as Exhibit B-1, as
applicable).
(b) Within
45
days after the Closing Date, the Trustee or the Custodian on behalf of the
Trustee, will, for the benefit of Holders of the Certificates, review each
Mortgage File to ascertain that all required documents set forth in Section
2.01
have been received and appear on their face to contain the requisite signatures
by or on behalf of the respective parties thereto, and shall deliver to the
Trustee, the Depositor, the Master Servicer and any NIMS Insurer an Interim
Certification in the form annexed hereto as Exhibit B-2 (or in the form annexed
to the Custodial Agreement as Exhibit B-2, as applicable) to the effect that,
as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan prepaid in full or any Mortgage Loan specifically identified
in
such certification as not covered by such certification), (i) all of the
applicable documents specified in Section 2.01(b) are in its possession and
(ii)
such documents have been reviewed by it and appear to relate to such Mortgage
Loan. The Trustee, or the Custodian on behalf of the Trustee, shall determine
whether such documents are executed and endorsed, but shall be under no duty
or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that the same are valid, binding,
legally effective, properly endorsed, genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded or are in
recordable form or that they are other than what they purport to be on their
face. Neither the Trustee nor the Custodian shall have any responsibility for
verifying the genuineness or the legal effectiveness of or authority for any
signatures of or on behalf of any party or endorser.
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
Custodian discovers any document or documents constituting a part of a Mortgage
File that is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the Custodian on behalf of the
Trustee, discovering such Material Defect shall promptly identify the Mortgage
Loan to which such Material Defect relates in the Interim Certification
delivered to the Depositor and the Master Servicer. Within 90 days of its
receipt of such notice, the Transferor, or, if the Transferor does not do so,
the Depositor shall be required to cure such Material Defect (and, in such
event, the Depositor shall provide the Trustee with an Officer’s Certificate
confirming that such cure has been effected). If the Transferor or the
Depositor, as applicable, does not so cure such Material Defect, the Transferor,
or, if the Transferor does not do so, the Depositor, shall, if a loss has been
incurred with respect to such Mortgage Loan that would, if such Mortgage Loan
were not purchased from the Trust Fund, constitute a Realized Loss, and such
loss is attributable to the failure of the Depositor to cure such Material
Defect, repurchase the related Mortgage Loan from the Trust Fund at the Purchase
Price. A loss shall be deemed to be attributable to the failure of the Depositor
to cure a Material Defect if, as determined by the Depositor, upon mutual
agreement with the Trustee each acting in good faith, absent such Material
Defect, such loss would not have been incurred. Within the two-year period
following the Closing Date, the Depositor may, in lieu of repurchasing a
Mortgage Loan pursuant to this Section 2.02, substitute for such Mortgage Loan
a
Qualifying Substitute Mortgage Loan subject to the provisions of Section 2.05.
The failure of the Trustee or the Custodian to give the notice contemplated
herein within 45 days after the Closing Date shall not affect or relieve the
Depositor of its obligation to repurchase any Mortgage Loan pursuant to this
Section 2.02 or any other Section of this Agreement requiring the repurchase
of
Mortgage Loans from the Trust Fund.
66
(d) Within
180 days following the Closing Date, the Trustee, or the Custodian, shall
deliver to the Trustee, the Depositor, the Master Servicer and any NIMS Insurer
a Final Certification substantially in the form attached as Exhibit B-3 (or
in
the form annexed to the Custodial Agreement as Exhibit B-3, as applicable)
evidencing the completeness of the Mortgage Files in its possession or control,
with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee, the Custodian or the Certificateholders of any unsatisfied
duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Each
of
the parties hereto acknowledges that the Custodian shall perform the applicable
review of the Mortgage Loans and respective certifications thereof as provided
in this Section 2.02 and the Custodial Agreement. The Trustee is hereby
authorized and directed by the Depositor to appoint the Custodian and to execute
and deliver the Custodial Agreement and to execute and deliver Transaction
Addendum SASCO 2006-BC2 to the Master Consulting Agreement with the Credit
Risk
Manager.
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee and
the Trustee acknowledges a receipt of the Mortgage Loan Sale Agreement, each
Servicing Agreement and the Bulk PMI Policies. The Depositor hereby directs
the
Trustee, solely in its capacity as Trustee hereunder, to execute and deliver,
concurrently with the execution and delivery of this Agreement, the Bulk PMI
Policies and each Servicing Agreement to which the Trustee is a
party.
|
Section
2.03.
|
Representations
and Warranties of the
Depositor.
|
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, the Master Servicer, the Securities Administrator and any
NIMS Insurer as of the Closing Date or such other date as is specified,
that:
(i) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
67
(iii) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or taken
prior to the date hereof;
(iv) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee, the Master Servicer,
the Credit Risk Manager and the Securities Administrator, constitutes a valid
and binding obligation of the Depositor enforceable against it in accordance
with its terms except as such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in equity
or at law;
(v) there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor, before
or by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to perform
its obligations under this Agreement; and
(vi) immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan, and
the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly subject which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement.
68
(b) The
representations and warranties of the Transferor with respect to the related
Mortgage Loans in the Transfer Agreement, which have been assigned to the
Trustee hereunder, were made as of the date specified in the Transfer Agreement
(or underlying agreement, if such Transfer Agreement is in the form of an
assignment of a prior agreement). To the extent that any fact, condition or
event with respect to a Mortgage Loan constitutes a breach of both (i) a
representation or warranty of the Transferor under the Transfer Agreement and
(ii) a representation or warranty of the Seller under the Mortgage Loan Sale
Agreement, the only right or remedy of the Trustee, any Certificateholder or
any
NIMS Insurer hereunder shall be their rights to enforce the obligations of
the
Transferor under any applicable representation or warranty made by it. The
Trustee acknowledges that, except as otherwise provided in the Mortgage Loan
Sale Agreement, the Seller shall not have any obligation or liability with
respect to any breach of a representation or warranty made by it with respect
to
the Mortgage Loans sold by it if the fact, condition or event constituting
such
breach also constitutes a breach of a representation or warranty made by the
Transferor in the Transfer Agreement, without regard to whether such Transferor
fulfills its contractual obligations in respect of such representation or
warranty. The Trustee further acknowledges that the Depositor shall have no
obligation or liability with respect to any breach of any representation or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
|
Section
2.04.
|
Discovery
of Breach.
|
It
is
understood and agreed that the representations and warranties (i) of the
Depositor set forth in Section 2.03, (ii) of the Seller set forth in the
Mortgage Loan Sale Agreement and assigned to the Depositor by the Seller under
the Mortgage Loan Sale Agreement and to the Trustee by the Depositor hereunder
and (iii) of the Transferor and of each Servicer assigned by the Seller to
the
Depositor pursuant to the Mortgage Loan Sale Agreement and assigned to the
Trustee by the Depositor hereunder, shall each survive delivery of the Mortgage
Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and
shall continue throughout the term of this Agreement. Upon discovery by any
of
the Depositor, the Master Servicer, the Securities Administrator or the Trustee
of a breach of any of such representations and warranties that adversely and
materially affects the value of the related Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties. Within 90
days of the discovery of a breach of any representation or warranty given to
the
Trustee by the Depositor or given by the Transferor or the Seller and assigned
to the Trustee, the Depositor, the Transferor or the Seller, as applicable,
shall either (a) cure such breach in all material respects, (b) repurchase
such
Mortgage Loan or any property acquired in respect thereof from the Trustee
at
the Purchase Price (or in the case of a First Payment Default Mortgage Loan
or a
Delinquency Default Mortgage Loan, the PPTL Purchase Price (excluding any PPTL
Premium) or FPD Purchase Price (excluding any FPD Premium)) or (c) within the
two-year period following the Closing Date, substitute a Qualifying Substitute
Mortgage Loan for the affected Mortgage Loan. In the event of discovery of
a
breach of any representation and warranty of the Transferor assigned to the
Trustee, the Trustee shall enforce its rights under the Transfer Agreement
and
the Mortgage Loan Sale Agreement for the benefit of Certificateholders and
any
NIMS Insurer. As provided in the Mortgage Loan Sale Agreement, if the Transferor
substitutes a mortgage loan for a Deleted Mortgage Loan pursuant to the Transfer
Agreement and such substitute mortgage loan is not a Qualifying Substitute
Mortgage Loan, then pursuant to the terms of the Mortgage Loan Sale Agreement
the Seller will, in exchange for such substitute mortgage loan, (i) pay to
the
Trust Fund the applicable Purchase Price for the affected Mortgage Loan or
(ii) within two years of the Closing Date, substitute a Qualifying
Substitute Mortgage Loan.
69
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage
Loans.
|
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by the Seller pursuant to the Mortgage Loan Sale Agreement or by
the
Transferor pursuant to the Transfer Agreement, the principal portion of the
funds (including the FPD Purchase Price (excluding any FPD Premium) or PPTL
Purchase Price (excluding any PPTL Premium) in the case of a First Payment
Default Mortgage Loan or Delinquency Default Mortgage Loan) received by the
Trustee in respect of such repurchase of a Mortgage Loan will be considered
a
Principal Prepayment and the Purchase Price, PPTL Purchase Price (excluding
any
PPTL Premium) or FPD Purchase Price (excluding any FPD Premium), as applicable,
shall be deposited in the Certificate Account or a Custodial Account, as
applicable. The Trustee (i) upon receipt of the full amount of the Purchase
Price for a Deleted Mortgage Loan, (ii) upon receipt of a written certification
from the Master Servicer that it has received the full amount of the Purchase
Price for a Deleted Mortgage Loan and has deposited such amount in the
Certificate Account or (iii) upon receipt of notification from the Custodian
that it had received the Mortgage File for a Qualifying Substitute Mortgage
Loan
substituted for a Deleted Mortgage Loan (and any applicable Substitution
Amount), shall release or cause to be released and reassign to the Depositor,
the Seller or the Transferor, as applicable, the related Mortgage File for
the
Deleted Mortgage Loan and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, representation or warranty, as
shall be necessary to vest in such party or its designee or assignee title
to
any Deleted Mortgage Loan released pursuant hereto, free and clear of all
security interests, liens and other encumbrances created by this Agreement,
which instruments shall be prepared by the related Servicer and the Trustee
shall have no further responsibility with respect to the Mortgage File relating
to such Deleted Mortgage Loan. The Seller indemnifies and holds the Trust Fund,
the Master Servicer, the Securities Administrator, the Trustee, the Depositor,
and NIMS Insurer and each Certificateholder harmless against any and all taxes,
claims, losses, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments, and any other costs, fees and expenses that the Trust Fund,
the Trustee, the Master Servicer, the Securities Administrator, the Depositor,
any NIMS Insurer and any Certificateholder may sustain in connection with any
actions of such Seller relating to a repurchase of a Mortgage Loan other than
in
compliance with the terms of this Section 2.05 and the Mortgage Loan Sale
Agreement, to the extent that any such action causes an Adverse REMIC
Event.
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or the Custodian) pursuant to the terms of this Article II in exchange
for a Deleted Mortgage Loan: (i) the Depositor, the Transferor or the Seller,
as
applicable, must deliver to the Trustee (or the Custodian) the Mortgage File
for
the Qualifying Substitute Mortgage Loan containing the documents set forth
in
Section 2.01(b) along with a written certification certifying as to the delivery
of such Mortgage File and containing granting language substantially comparable
to that set forth in the first paragraph of Section 2.01(a); and (ii) the
Depositor will be deemed to have made, with respect to such Qualifying
Substitute Mortgage Loan, each of the representations and warranties made by
it
with respect to the related Deleted Mortgage Loan. As soon as practicable after
the delivery of any Qualifying Substitute Mortgage Loan hereunder, the Master
Servicer, at the expense of the Depositor and at the direction and with the
cooperation of the applicable Servicer, shall (i) with respect to a
Qualifying Substitute Mortgage Loan that is a Non-MERS Mortgage Loan, cause
the
Assignment of Mortgage to be recorded by the applicable Servicer if required
pursuant to Section 2.01(c), or (ii) with respect to a Qualifying Substitute
Mortgage Loan that is a MERS Mortgage Loan, cause to be taken such actions
as
are necessary to cause the Trustee to be clearly identified as the owner of
each
such Mortgage Loan on the records of MERS if required pursuant to Section
2.01(c).
70
(c) Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee and any NIMS Insurer has received an
Opinion of Counsel addressed to the Trustee (at the expense of the party seeking
to make the substitution) that, under current law, such substitution will not
cause an Adverse REMIC Event.
|
Section
2.06.
|
Grant
Clause.
|
(a) It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders of
the
Certificates a first priority security interest to secure repayment of an
obligation in an amount equal to the aggregate Class Principal Amount of the
Certificates (or the aggregate principal balance of the Lower Tier REMIC 1
Uncertificated Regular Interests, if applicable) in all of the Depositor’s
right, title and interest in, to and under, whether now owned or hereafter
acquired, the Trust Fund, the Supplemental Interest Trust and all proceeds
of
any and all property constituting the Trust Fund and the Supplemental Interest
Trust to secure payment of the Certificates or Lower Tier REMIC 1 Uncertificated
Regular Interests, as applicable (such security interest being, to the extent
of
the assets that constitute the Supplemental Interest Trust, pari
passu
with the
security interest as provided in clause (4) below); (3) this Agreement shall
constitute a security agreement under applicable law; and (4) the Swap
Counterparty shall be deemed, during the term of such agreement and while such
agreement is the property of the Trustee, to have a security interest in all
of
the assets that constitute the Supplemental Interest Trust, but only to the
extent of such Swap Counterparty’s right to payment under the Swap Agreement
(such security interest being pari
passu
with the
security interest as provided in clause (2) above). If such conveyance is deemed
to be in respect of a loan and the trust created by this Agreement terminates
prior to the satisfaction of the claims of any Person holding any Certificate
or
Lower Tier REMIC 1 Uncertificated Regular Interests, as applicable, the security
interest created hereby shall continue in full force and effect and the Trustee
shall be deemed to be the collateral agent for the benefit of such Person,
and
all proceeds shall be distributed as herein provided.
71
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and shall
be
maintained as such throughout the term of this Agreement. The Depositor shall,
at its own expense, make all initial filings on or about the Closing Date and
shall forward a copy of such filing or filings to the Trustee. Without limiting
the generality of the foregoing, the Depositor shall prepare and forward for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Seller, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Seller or the
Depositor, (3) any transfer of any interest of the Seller or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Seller nor the Depositor shall organize under the law of
any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and intermediate transferee, including the Trustee.
Before effecting such change, the Seller or the Depositor proposing to change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its immediate or intermediate transferee to file in any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
ARTICLE
III
THE
CERTIFICATES
|
Section
3.01.
|
The
Certificates.
|
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial ownership
of which will be held in the dollar denominations in Certificate Principal
Amount, or in the Percentage Interests, specified herein. Each Class of
Book-Entry Certificates will be issued in the minimum denominations in
Certificate Principal Amount specified in the Preliminary Statement hereto
and
in integral multiples of $1 in excess thereof. The Class P and Class X
Certificates shall each be maintained in definitive, fully registered form
in
the minimum denomination specified in the Preliminary Statement hereto and
in
integral multiples of 1% in excess thereof. Each of the Class R and Class LT-R
Certificate shall be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100% of
the
Percentage Interest of such Class. The Certificates may be issued in the form
of
typewritten certificates.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Securities Administrator by an authorized officer. Each Certificate shall, on
original issue, be authenticated by the Securities Administrator upon the order
of the Depositor upon receipt by the Trustee (or its Custodian) of the Mortgage
Files described in Section 2.01. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on
such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Securities Administrator
or
the Authenticating Agent, if any, by manual signature, and such certification
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 Depositor to the Securities
Administrator or the Authenticating Agent for authentication and the Securities
Administrator or the Authenticating Agent shall authenticate and deliver such
Certificates as in this Agreement provided and not otherwise.
72
(c) The
Class
B1 and Class B2 Certificates offered and sold in reliance on the exemption
from
registration under Rule 144A under the Securities Act 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 A added to the forms of such Certificates (each, a “Restricted Global
Security”), which shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Securities Administrator, as custodian
for The Depository Trust Company (“DTC”) and registered in the name of a nominee
of DTC, duly executed and authenticated by the Securities Administrator as
hereinafter provided. The aggregate principal amounts of the Restricted Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Securities Administrator or DTC or its nominee, as the
case may be, as hereinafter provided.
(d) The
Class
B1 and Class B2 Certificates sold in offshore transactions in reliance on
Regulation S 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 A hereto added to
the
forms of such Certificates (each, a “Regulation S Global Security”), which shall
be deposited on behalf of the subscribers for such Certificates represented
thereby with the Securities Administrator, as custodian for DTC and registered
in the name of a nominee of DTC, duly executed and authenticated by the
Securities Administrator as hereinafter provided. The aggregate principal
amounts of the Regulation S Global Securities may from time to time be increased
or decreased by adjustments made on the records of the Securities Administrator
or DTC or its nominee, as the case may be, as hereinafter provided.
(e) The
Class
B1 and Class B2 Certificates sold to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act shall be issued initially
in
the form of one or more Definitive Certificates.
|
Section
3.02.
|
Registration.
|
The
Securities Administrator is hereby appointed, and hereby accepts its appointment
as, Certificate Registrar in respect of the Certificates (and, after a Section
7.01(c) Purchase Event, the Lower Tier REMIC 1 Uncertificated Regular Interests)
and shall maintain books for the registration and for the transfer of
Certificates (and, after a Section 7.01(c) Purchase Event, the Lower Tier REMIC
1 Uncertificated Regular Interests) (the “Certificate Register”). The Securities
Administrator may appoint a bank or trust company to act as Certificate
Registrar. A registration book shall be maintained for the Certificates (and
Lower Tier REMIC 1 Uncertificated Regular Interests, as the case may be)
collectively. The Certificate Registrar may resign or be discharged or removed
and a new successor may be appointed in accordance with the procedures and
requirements set forth in Sections 6.06 and 6.07 hereof with respect to the
resignation, discharge or removal of the Securities Administrator and the
appointment of a successor Securities Administrator. The Certificate Registrar
may appoint, by a written instrument delivered to the Holders, any NIMS Insurer
and the Master Servicer, any bank or trust company to act as co-registrar under
such conditions as the Certificate Registrar may prescribe; provided,
however,
that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
73
Upon
the
occurrence of a Section 7.01(c) Purchase Event, the Master Servicer shall
provide the Securities Administrator with written notice of the identity of
any
transferee of the Master Servicer’s interest in the Lower Tier REMIC 1
Uncertificated Regular Interests, which notice shall contain a certification
that such transferee is a permitted LTURI-holder hereunder. The Lower Tier
REMIC
1 Uncertificated Regular Interests may only be transferred in whole and not
in
part to no more than one LTURI-holder at a time who is either (1) an affiliate
of the Master Servicer or (2) a trustee of a privately placed securitization.
The Securities Administrator and the Depositor shall treat the Person in whose
name the Lower Tier REMIC 1 Uncertificated Regular Interests are registered
on
the books of the Certificate Registrar as the LTURI-holder for all purposes
hereunder.
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
(a) A
Certificate (other than a Book-Entry Certificate which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, the Securities Administrator shall execute, and
the
Securities Administrator or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
or
Percentage Interest as the Certificate being transferred. No service charge
shall be made to a Certificateholder for any registration of transfer of
Certificates, 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 registration of transfer of Certificates.
(b) A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing in
the
aggregate the same Certificate Principal Amount or Percentage Interest as the
Certificate surrendered, upon surrender of the Certificate to be exchanged
at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, 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 exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, and the Securities Administrator or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
74
(c) By
acceptance of a Restricted Certificate or a Regulation S Global Security,
whether upon original issuance or subsequent transfer, each Holder of such
a
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth thereon and agrees that it will transfer such a Certificate only
as
provided herein. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Securities
Administrator, the Certificate Registrar and any of their respective successors
that: (i) such Person is not a U.S. person within the meaning of Regulation
S
and was, at the time the buy order was originated, outside the United States
and
(ii) such Person understands that such Certificates have not been registered
under the Securities Act, and that (x) until the expiration of the 40-day
distribution compliance period (within the meaning of Regulation S), no offer,
sale, pledge or other transfer of such Certificates or any interest therein
shall be made in the United States or to or for the account or benefit of a
U.S.
person (each as defined in Regulation S), (y) if in the future it decides to
offer, resell, pledge or otherwise transfer such Certificates, such Certificates
may be offered, resold, pledged or otherwise transferred only (A) to a person
which the seller reasonably believes is a “qualified institutional buyer” (a
“QIB”) as defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A or (B) in an offshore transaction (as defined in Regulation S) in
compliance with the provisions of Regulation S, in each case in compliance
with
the requirements of this Agreement; and it will notify such transferee of the
transfer restrictions specified in this Section.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or the Placement Agent, an
affiliate (as defined in Rule 405 under the Securities Act) of the Depositor
or
the Placement Agent or (y) being made to a “qualified institutional buyer” (a
“QIB”) as defined in Rule 144A under the Securities Act by a transferor that has
provided the Securities Administrator with a certificate in the form of Exhibit
F hereto; and
(ii) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act, or to any Person all of
the
equity owners in which are such accredited investors, by a transferor who
furnishes to the Securities Administrator a letter of the transferee
substantially in the form of Exhibit G hereto.
75
(d) (i)
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person unless the Securities Administrator
has
received (A) a certificate substantially in the form of Exhibit H hereto (or
Exhibit D-1, in the case of a Residual Certificate) from such transferee or
(B)
an Opinion of Counsel satisfactory to the Securities Administrator, to the
effect that the purchase and holding of such a Certificate will not constitute
or result in prohibited transactions under Title I of ERISA or Section 4975
of
the Code and will not subject the Trustee, the Master Servicer, any Servicer,
the Securities Administrator, any NIMS Insurer or the Depositor to any
obligation in addition to those undertaken in the Agreement; provided,
however,
that the
Securities Administrator will not require such certificate or opinion in the
event that, as a result of a change of law or otherwise, counsel satisfactory
to
the Securities Administrator, has rendered an opinion to the effect that the
purchase and holding of an ERISA-Restricted Certificate by a Plan or a Person
that is purchasing or holding such a Certificate with the assets of a Plan
will
not constitute or result in a prohibited transaction under Title I of ERISA
or
Section 4975 of the Code. Each Transferee of an ERISA-Restricted Certificate
that is a Book-Entry Certificate shall be deemed to have made the
representations set forth in Exhibit H. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the Trust
Fund, the Trustee, the Master Servicer, the Securities Administrator, any NIMS
Insurer or the Depositor.
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Securities Administrator
shall have no obligation to monitor transfers of Book-Entry Certificates that
are ERISA-Restricted Certificates and shall have no liability for transfers
of
such Certificates in violation of the transfer restrictions. The Securities
Administrator shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Certificate that is in fact not permitted
by
this Section 3.03(d) or for making any payments due on such Certificate to
the
Holder thereof or taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the transfer was registered by the
Securities Administrator in accordance with the foregoing requirements. The
Securities Administrator shall be entitled, but not obligated, to recover from
any Holder of any ERISA-Restricted Certificate that was in fact a Plan or a
Person acting on behalf of any such Plan any payments made on such
ERISA-Restricted Certificate at and after either such time. Any such payments
so
recovered by the Securities Administrator shall be paid and delivered by the
Securities Administrator to the last preceding Holder of such Certificate that
is not such a Plan or Person acting on behalf of a Plan.
(ii) No
transfer of an ERISA-Restricted Trust Certificate shall be made prior to the
termination of the Swap Agreement and the Interest Rate Cap Agreement, unless
the Securities Administrator shall have received a representation letter from
the transferee of such Certificate, substantially in the form set forth in
Exhibit H, to the effect that either (i) such transferee is neither a Plan
nor a
Person acting on behalf of any such Plan or using the assets of any such Plan
to
effect such transfer or (ii) the acquisition and holding of the ERISA-Restricted
Trust Certificate are eligible for exemptive relief under Prohibited Transaction
Class Exemption (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ 95-60 or PTCE 96-23.
Notwithstanding anything else to the contrary herein, prior to the termination
of the Swap Agreement and the Interest Rate Cap Agreement, any purported
transfer of an ERISA-Restricted Trust Certificate on behalf of a Plan without
the delivery to the Securities Administrator of a representation letter as
described above shall be void and of no effect. If the ERISA-Restricted Trust
Certificate is a Book-Entry Certificate, prior to the termination of the Swap
Agreement and the Interest Rate Cap Agreement, the transferee will be deemed
to
have made a representation as provided in clause (i) or (ii) of this paragraph,
as applicable.
76
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired or
held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to the
extent permitted by law and hold harmless the Depositor, the Securities
Administrator, the Trustee, any NIMS Insurer and the Master Servicer from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Securities Administrator shall be under no liability to any Person for
any
registration of transfer of any ERISA-Restricted Trust Certificate that is
in
fact not permitted by this Section 3.03(d)(ii) or for making any payments due
on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Securities Administrator in accordance with the foregoing
requirements.
(e) As
a
condition of the registration of transfer or exchange of any Certificate, the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however,
that the
Certificate Registrar shall have no obligation to require such payment or to
determine whether or not any such tax or charge may be applicable. No service
charge shall be made to the Certificateholder for any registration, transfer
or
exchange of a Certificate.
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person
that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Securities Administrator with an effective Internal Revenue Service W-8ECI
or
successor form at the time and in the manner required by the Code (any such
person who is not covered by clause (A) or (B) above is referred to herein
as a
“Non-permitted Foreign Holder”).
77
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Securities Administrator an affidavit in substantially the form attached
hereto as Exhibit D-1 representing and warranting, among other things, that
such
transferee is neither a Disqualified Organization, an agent or nominee acting
on
behalf of a Disqualified Organization, nor a Non-Permitted Foreign Holder (any
such transferee, a “Permitted Transferee”), and the proposed transferor shall
deliver to the Securities Administrator an affidavit in substantially the form
attached hereto as Exhibit D-2. In addition, the Securities Administrator may
(but shall have no obligation to) require, prior to and as a condition of any
such transfer, the delivery by the proposed transferee of an Opinion of Counsel,
addressed to the Depositor, the Master Servicer, the Securities Administrator,
any NIMS Insurer and the Trustee satisfactory in form and substance to the
Depositor, that such proposed transferee or, if the proposed transferee is
an
agent or nominee, the proposed beneficial owner, is not a Disqualified
Organization, agent or nominee thereof, or a Non-Permitted Foreign Holder.
Notwithstanding the registration in the Certificate Register of any transfer,
sale, or other disposition of a Residual Certificate to a Disqualified
Organization, an agent or nominee thereof, or Non-Permitted Foreign Holder,
such
registration shall be deemed to be of no legal force or effect whatsoever and
such Disqualified Organization, agent or nominee thereof, or Non-Permitted
Foreign Holder shall not be deemed to be a Certificateholder for any purpose
hereunder, including, but not limited to, the receipt of distributions on such
Residual Certificate. The Securities Administrator shall not be under any
liability to any person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof or
Non-permitted Foreign Holder or for the maturity of any payments due on such
Residual Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of the Agreement, so long as the
transfer was effected in accordance with this Section 3.03(f), unless a
Responsible Officer of the Securities Administrator shall have actual knowledge
at the time of such transfer or the time of such payment or other action that
the transferee is a Disqualified Organization, or an agent or nominee thereof,
or Non-permitted Foreign Holder. The Securities Administrator shall be entitled,
but not obligated, to recover from any Holder of a Residual Certificate that
was
a Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder at the time it became a Holder or any subsequent time it became a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder, all payments made on such Residual Certificate at and after either
such
times (and all costs and expenses, including but not limited to attorneys’ fees,
incurred in connection therewith). Any payment (not including any such costs
and
expenses) so recovered by the Securities Administrator shall be paid and
delivered to the last preceding Holder of such Residual
Certificate.
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt of
written notice to the Securities Administrator that the registration of transfer
of such Residual Certificate was not in fact permitted by this Section 3.03(f),
the last preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of such registration of transfer of
such
Residual Certificate. The Securities Administrator shall be under no liability
to any Person for any registration of transfer of a Residual Certificate that
is
in fact not permitted by this Section 3.03(f), for making any payment due on
such Certificate to the registered Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement so long
as
the transfer was registered upon receipt of the affidavit described in the
preceding paragraph of this Section 3.03(f).
(g) Each
Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, or an interest therein, by such Holder’s or
Owner’s acceptance thereof, shall be deemed for all purposes to have consented
to the provisions of this section.
78
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any Class B1 or Class B2 Certificate remains outstanding and is held by or
on
behalf of DTC, transfers of a Global Security representing any such
Certificates, in whole or in part, shall only be made in accordance with Section
3.01 and this Section 3.03(h).
(A) Subject
to clauses (B) and (C) of this Section 3.03(h), transfers of a Global Security
representing any Class B1 or Class B2 Certificate shall be limited to transfers
of such Global Security, in whole or in part, to nominees of DTC or to a
successor of DTC or such successor’s nominee.
(B) 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 DTC
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 DTC, exchange or cause the exchange of such interest for an
equivalent beneficial interest in the Regulation S Global Security. Upon receipt
by the Securities Administrator, as Certificate Registrar, of (I) instructions
from DTC directing the Securities Administrator, as Certificate Registrar,
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 holder’s
Certificates held through a Regulation S Global Security, (II) a written order
given in accordance with DTC’s procedures containing information regarding the
participant account of DTC 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 (III) a certificate in the form of Exhibit
M-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
Securities Administrator, as 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.
79
(C) 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 DTC
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 DTC, exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Restricted Global Security. Upon receipt by the
Securities Administrator, as Certificate Registrar, of (I) instructions from
DTC
directing the Securities Administrator, as 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 holder’s
Certificates held through a Restricted Global Security, to be exchanged, such
instructions to contain information regarding the participant account with
DTC
to be credited with such increase, and (II) a certificate in the form of Exhibit
M-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 QIB, is obtaining such beneficial interest
in a
transaction meeting the requirements of Rule 144A under the Securities Act
and
in accordance with any applicable securities laws of any State of the United
States or any other jurisdiction, then the Securities Administrator, as
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 Securities Administrator,
as Certificate Registrar, shall instruct DTC, 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.
(D) Other
Exchanges. In the event that a Global Security is exchanged for Certificates
in
definitive registered form without interest coupons, pursuant to Section 3.09(c)
hereof, 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, comply with Rule 501(a)(1), (2), (3) or (7) or are to
non-U.S. persons in compliance with Regulation S under the Securities Act,
as
the case may be), and as may be from time to time adopted by the Securities
Administrator.
(E) 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 3.03(l)(C).
|
Section
3.04.
|
Cancellation
of Certificates.
|
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with the Securities Administrator’s normal
retention policies with respect to cancelled certificates maintained by the
Securities Administrator or the Certificate Registrar.
|
Section
3.05.
|
Replacement
of Certificates.
|
If
(i)
any Certificate is mutilated and is surrendered to the Securities Administrator
or any Authenticating Agent or (ii) the Securities Administrator or any
Authenticating Agent receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and there is delivered to the Securities
Administrator and the Authenticating Agent and any NIMS Insurer such security
or
indemnity as may be required by them to save each of them harmless, then, in
the
absence of notice to the Securities Administrator and any Authenticating Agent
that such destroyed, lost or stolen Certificate has been acquired by a bona
fide
purchaser, the Securities Administrator shall execute and the Securities
Administrator or any Authenticating Agent 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 Certificate Principal Amount.
Upon the issuance of any new Certificate under this Section 3.05, the Securities
Administrator and Authenticating Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
relation thereto and any other expenses (including the fees and expenses of
the
Securities Administrator or the Authenticating Agent) connected therewith.
Any
replacement Certificate issued pursuant to this Section 3.05 shall constitute
complete and indefeasible evidence of ownership in the applicable Trust Fund,
as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
80
|
Section
3.06.
|
Persons
Deemed Owners.
|
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Master Servicer, the Securities Administrator, the Trustee,
the
Certificate Registrar, any NIMS Insurer and any agent of any of them may treat
the Person in whose name any Certificate is registered upon the books of the
Certificate Registrar as the owner of such Certificate for the purpose of
receiving distributions pursuant to Sections 5.01 and 5.02 and for all other
purposes whatsoever, and neither the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, the Certificate Registrar, any NIMS
Insurer nor any agent of any of them shall be affected by notice to the
contrary.
|
Section
3.07.
|
Temporary
Certificates.
|
(a) Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Securities Administrator shall execute and shall authenticate and deliver
temporary Certificates that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Certificates in lieu of which they are issued and with
such variations as the authorized officers executing such Certificates may
determine, as evidenced by their execution of such Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Securities Administrator without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Certificates,
the
Securities Administrator shall execute and authenticate and deliver in exchange
therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to
the
same benefits under this Agreement as definitive Certificates of the same
Class.
81
|
Section
3.08.
|
Appointment
of Paying Agent.
|
(a) The
Securities Administrator, subject to the consent of the NIMS Insurer, may
appoint a Paying Agent (which may be the Securities Administrator) for the
purpose of making distributions to Certificateholders hereunder. The Securities
Administrator shall cause such Paying Agent (if other than the Securities
Administrator) to execute and deliver to the Securities Administrator an
instrument in which such Paying Agent shall agree with the Securities
Administrator that such Paying Agent will hold all sums held by it for the
payment to Certificateholders in an Eligible Account in trust for the benefit
of
the Certificateholders entitled thereto until such sums shall be paid to the
Certificateholders. All funds remitted by the Securities Administrator to any
such Paying Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Securities Administrator. If the
Paying Agent is not the Securities Administrator, the Securities Administrator
shall cause to be remitted to the Paying Agent on or before the Business Day
prior to each Distribution Date, by wire transfer in immediately available
funds, the funds to be distributed on such Distribution Date. Any Paying Agent
shall be either a bank or trust company or otherwise authorized under law to
exercise corporate trust powers. The initial paying agent hereunder shall be
▇▇▇▇▇ Fargo Bank, N.A.
(b) Any
Paying Agent (other than the Securities Administrator) shall comply with its
reporting obligations under Regulation AB with respect to the Trust Fund in
form
and substance similar to those of the Securities Administrator pursuant to
Section 6.20, and the related assessment of compliance shall cover, at a
minimum, the elements of the servicing criteria applicable to the Paying Agent
indicated in Exhibit S attached hereto. The Paying Agent shall give prior
written notice to the Sponsor, the Master Servicer and the Depositor of the
appointment of any Subcontractor by it and a written description (in form and
substance satisfactory to the Sponsor and the Depositor) of the role and
function of each Subcontractor utilized by the Paying Agent, as applicable,
specifying (A) the identity of each such Subcontractor and (B) which elements
of
the servicing criteria set forth under Item 1122(d) of Regulation AB will be
addressed in assessments of compliance provided by each such Subcontractor.
In
addition, the Paying Agent shall notify the Sponsor, the Master Servicer and
the
Depositor within five (5) calendar days of knowledge thereof (i) of any legal
proceedings pending against the Paying Agent of the type described in Item
1117
(§ 229.1117) of Regulation AB, (ii) any merger, consolidation or sale of
substantially all of the assets of the Paying Agent and (iii) if the Paying
Agent shall become (but only to the extent not previously disclosed) at any
time
an affiliate of any of the parties listed on Exhibit V hereto or any of their
affiliates.
(c) Any
Paying Agent agrees to indemnify the Depositor, the Trustee, the Securities
Administrator and the Master Servicer, and each of their respective directors,
officers, employees and agents and the Trust Fund and hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures, legal
fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon the failure
by such Paying Agent to deliver any information, report or certification when
and as required under Section 6.20 and Section 9.25(a). This indemnification
shall survive the termination of this Agreement or the termination of such
Paying Agent hereunder.
82
|
Section
3.09.
|
Book-Entry
Certificates.
|
(a) Each
Class of Book-Entry Certificates, upon original issuance, shall be issued in
the
form of one or more typewritten Certificates representing the Book-Entry
Certificates. The Book-Entry Certificates shall initially be registered on
the
Certificate Register in the name of the nominee of the Clearing Agency, and
no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner’s interest in the Book-Entry Certificates, except as provided
in Section 3.09(c). Unless Definitive Certificates have been issued to
Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the
provisions of this Section 3.09 shall be in full force and effect;
(ii) the
Depositor, the Master Servicer, the Securities Administrator, the Paying Agent,
the Registrar, any NIMS Insurer and the Trustee may deal with the Clearing
Agency for all purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate Owners and
the Clearing Agency shall be responsible for crediting the amount of such
distributions to the accounts of such Persons entitled thereto, in accordance
with the Clearing Agency’s normal procedures;
(iii) to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever
notice or other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Securities Administrator
shall give all such notices and communications specified herein to be given
to
Holders of the Book-Entry Certificates to the Clearing Agency.
83
(c) If
(i)
(A) the Depositor advises the Securities Administrator in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Depositor is unable to locate a qualified successor or (ii) after the occurrence
of an Event of Default, Certificate Owners representing beneficial interests
aggregating not less than 50% of the Class Principal Amount of a Class of
Book-Entry Certificates identified as such to the Securities Administrator
by an
Officer’s Certificate from the Clearing Agency advise the Securities
Administrator and the Clearing Agency through the Clearing Agency Participants
in writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Certificate Owners of a Class
of Book-Entry Certificates, the Securities Administrator shall notify any NIMS
Insurer and shall notify or cause the Certificate Registrar to notify the
Clearing Agency to effect notification to all Certificate Owners, through the
Clearing Agency, of the occurrence of any such event and of the availability
of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Securities Administrator of the Book-Entry Certificates by
the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Securities Administrator shall issue the Definitive
Certificates. Neither the Depositor nor the Securities Administrator 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 all references herein to obligations imposed upon
or
to be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Securities Administrator, to the extent applicable, with
respect to such Definitive Certificates and the Securities Administrator shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder. Notwithstanding the foregoing, the Securities Administrator, upon
the
instruction of the Depositor, shall have the right to issue Definitive
Certificates on the Closing Date in connection with credit enhancement
programs.
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
|
Section
4.01.
|
Certificate
Account.
|
(a) On
the
Closing Date, the Securities Administrator shall open and shall thereafter
maintain a segregated account held in trust (the “Certificate Account”),
entitled “Certificate Account, ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator, in trust for the benefit of the Holders of Structured Asset
Securities Corporation Mortgage Loan Trust Mortgage Pass-Through Certificates,
Series 2006-BC2.” The Certificate Account shall relate solely to the
Certificates and to the Lower Tier REMIC 1 Uncertificated Regular Interests
issued by the Trust Fund hereunder, and funds in such Certificate Account shall
not be commingled with any other monies.
(b) The
Certificate Account shall be an Eligible Account. If an existing Certificate
Account ceases to be an Eligible Account, the Securities Administrator shall
establish a new Certificate Account that is an Eligible Account within 10 days
and transfer all funds and investment property on deposit in such existing
Certificate Account into such new Certificate Account.
(c) The
Securities Administrator shall give to the Trustee prior written notice of
the
name and address of the depository institution at which the Certificate Account
is maintained and the account number of such Certificate Account. The Securities
Administrator shall take such actions as are necessary to cause the depository
institution holding the Certificate Account to hold such account in the name
of
the Securities Administrator under this Agreement.
(d) The
Master Servicer shall deposit or cause to be deposited into the Certificate
Account, no later than the second Business Day following the Closing Date,
any
amounts received with respect to the Mortgage Loans representing Scheduled
Payments (or in the case of Simple Interest Mortgage Loans, representing
scheduled interest payments, but actual principal payments) on the Mortgage
Loans due after the Cut-off Date and unscheduled payments received on or after
the Cut-off Date and on or before the Closing Date. Thereafter, the Master
Servicer shall deposit or cause to be deposited in the Certificate Account
on
the earlier of the applicable Servicer Remittance Date and two Business Days
following receipt thereof, the following amounts received or payments made
by it
(other than in respect of principal of and interest on the Mortgage Loans due
on
or before the Cut-off Date):
84
(i) all
payments on account of principal, including Principal Prepayments, any
Subsequent Recovery and any Scheduled Payment attributable to principal received
after its related Due Date, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, including Prepayment
Premiums, in all cases, net of the Servicing Fee and the PMI Insurance Premiums,
if any, with respect to each such Mortgage Loan, but only to the extent of
the
amount permitted to be withdrawn or withheld from the Certificate Account in
accordance with Sections 5.04 and 9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including all Net Liquidation
Proceeds with respect to the Mortgage Loans and REO Property, and all amounts
received in connection with the operation of any REO Property, net of (x) any
unpaid Servicing Fees with respect to such Mortgage Loans (but only to the
extent of the amount permitted to be withdrawn or withheld from the Certificate
Account in accordance with Sections 5.04 and 9.21) and (y) any amounts
reimbursable to a Servicer with respect to such Mortgage Loan under the
applicable Servicing Agreement and retained by such Servicer;
(iv) all
Insurance Proceeds;
(v) all
Advances made by the Master Servicer or any Servicer pursuant to Section 5.04
or
the applicable Servicing Agreement;
(vi) any
Seller Remittance Amounts remitted by a Servicer;
(vii) all
amounts paid by any Servicer with respect to Net Simple Interest Shortfalls
and
Prepayment Interest Shortfalls; and
(viii) the
Purchase Price, FPD Purchase Price or PPTL Purchase Price of any Mortgage Loan
repurchased by the Depositor, the Seller, the Master Servicer or any other
Person and any Substitution Amount related to any Qualifying Substitute Mortgage
Loan and any purchase price paid by any NIMS Insurer for the purchase of any
Distressed Mortgage Loan under Section 7.04.
The
Master Servicer shall also deposit from its own funds into the Certificate
Account (to the extent not already received from the related Servicer), without
right of reimbursement, except from Net Simple Interest Excess, an amount equal
to any Net Simple Interest Shortfall (to the extent not offset by Net Simple
Interest Excess) for the related Collection Period.
85
(e) Funds
in
the Certificate Account for the period from each Servicer Remittance Date to
and
including four Business Days immediately preceding the related Distribution
Date
shall be invested in Eligible Investments selected by and at the written
direction of LBH, which shall mature not later than one Business Day prior
to
the Distribution Date and any such Eligible Investment shall not be sold or
disposed of prior to its maturity. In the absence of written instructions from
LBH regarding the investment of any such funds on deposit in the Certificate
Account, such funds shall be invested in the ▇▇▇▇▇ Fargo Advantage Prime Money
Market Fund. All such Eligible Investments shall be made in the name of the
Master Servicer in trust for the benefit of the Trustee and Holders of the
Structured Asset Securities Corporation Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2006-BC2. Funds in the Certificate Account
for
the period from four Business Days immediately preceding the related
Distribution Date through and including the related Distribution Date (the
“Master Servicer Investment Period”) may be invested in Eligible Investments
selected by the Master Servicer (which shall mature not later than such
applicable Distribution Date). All income and gain realized from any Eligible
Investment (i) during the Master Servicer Investment Period shall be
compensation (1) to the Trustee, in payment of its Trustee Fee, to the extent
not paid in accordance with Section 6.12, (2) to Deutsche Bank National Trust
Company and ▇▇▇▇▇ Fargo Bank, N.A., in their respective capacities as
Custodians, in payment of their Custodial Compensation, to the extent not paid
when due in accordance with Section 6.12 and (3) to the Master Servicer and
Securities Administrator, any income and gain remaining and (ii) other than
during the Master Servicer Investment Period shall be shall be for the benefit
of LBH, in either case subject to its withdrawal or order from time to time,
and
shall not be part of the Trust Fund. The amount of any losses incurred in
respect of any such investments during the Master Servicer Investment Period
shall be deposited in such Certificate Account by the Master Servicer out of
its
own funds, without any right of reimbursement therefor, immediately as realized.
The amount of any losses incurred in respect of any such investments for any
period other than during the Master Servicer Investment Period shall be
deposited in such Certificate Account by LBH out of its own funds, without
any
right of reimbursement therefor, immediately as realized. The foregoing
requirements for deposit in the Certificate Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
(i) payments of interest on funds in the Certificate Account need not be
deposited by the Master Servicer in the Certificate Account and may be retained
by the Master Servicer or remitted directly to LBH, as applicable, and (ii)
payments in the nature of late payment charges, assumption fees and other
incidental fees and charges relating to the Mortgage Loans (other than
Prepayment Premiums) need not be deposited by the Master Servicer in the
Certificate Account and may be retained by the Master Servicer or the applicable
Servicer as additional servicing compensation. If the Master Servicer deposits
in the Certificate Account any amount not required to be deposited therein,
it
may at any time withdraw such amount from such Certificate Account.
|
Section
4.02.
|
Application
of Funds in the Certificate
Account.
|
The
Master Servicer (or if applicable, the Securities Administrator), may, from
time
to time, make, or cause to be made, withdrawals from the Certificate Account
for
the following purposes:
(i) to
reimburse itself or any Servicer for Advances or Servicing Advances made by
it
or by such Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; such right to reimbursement pursuant to this subclause (i) is limited
to amounts received on or in respect of a particular Mortgage Loan (including,
for this purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related Mortgage) which
represent late recoveries (net of the applicable Servicing Fee) of payments
of
principal or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
86
(ii) to
reimburse itself or any Servicer, following a final liquidation of a Mortgage
Loan (except as otherwise provided in the related Servicing Agreement) for
any
previously unreimbursed Advances or Servicing Advances made by it or by such
Servicer (A) that it determines in good faith will not be recoverable from
amounts representing late recoveries of payments of principal or interest
respecting the particular Mortgage Loan as to which such Advance or Servicing
Advance was made or from Liquidation Proceeds or Insurance Proceeds with respect
to such Mortgage Loan and/or (B) to the extent that such unreimbursed Advances
or Servicing Advances exceed the related Liquidation Proceeds or Insurance
Proceeds, it being understood, in the case of each such reimbursement, that
such
Master Servicer's or Servicer's right thereto shall be prior to the rights
of
the Certificateholders;
(iii) to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Section 9.22(c) or the
applicable Servicing Agreement in good faith in connection with the restoration
of damaged property and, to the extent that Liquidation Proceeds after such
reimbursement exceed the unpaid principal balance of the related Mortgage Loan,
together with accrued and unpaid interest thereon at the applicable Mortgage
Rate less the applicable Servicing Fee Rate for such Mortgage Loan to the Due
Date next succeeding the date of its receipt of such Liquidation Proceeds,
to
pay to itself out of such excess the amount of any unpaid assumption fees,
late
payment charges or other Mortgagor charges on the related Mortgage Loan and
to
retain any excess remaining thereafter as additional servicing compensation,
it
being understood, in the case of any such reimbursement or payment, that such
Master Servicer’s or Servicer’s right thereto shall be prior to the rights of
the Certificateholders;
(iv) to
the
extent of any previous Advances made by the Master Servicer with respect to
Simple Interest Mortgage Loans, to pay itself an amount equal to Net Simple
Interest Excess for the related Collection Period to the extent not offset
by
Net Simple Interest Shortfalls;
(v) to
reimburse itself or any Servicer for expenses incurred by and recoverable by
or
reimbursable to it or any Servicer pursuant to this Agreement, including,
without limitation, Sections 9.04, 9.05(b), 9.07(a), 9.30 or 11.15;
(vi) to
pay to
the Seller any Seller Remittance Amount;
87
(vii) to
pay to
the Depositor, the Seller or the Transferor, as applicable, with respect to
each
Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
distributed on the date on which the related repurchase was effected, and to
pay
to the applicable Person any Advances and Servicing Advances to the extent
specified in the definition of Purchase Price (or FPD Purchase Price, FPD
Premium, PPTL Purchase Price and PPTL Premium, if any, (in the case of a First
Payment Default Mortgage Loan or Delinquency Default Mortgage
Loan));
(viii) to
pay
the PMI Insurance Premium with respect to each Bulk PMI Policy;
(ix) to
make
payment to the Trustee pursuant to any provision of this Agreement or to
reimburse the Trustee for any fees or expenses reimbursable to it pursuant
to
Section 6.12; provided, however, that any amounts in excess of the annual cap
described in clause (b) of the definition of “Interest Remittance Amount” and
clause (b) of the definition of “Principal Remittance Amount” in any Anniversary
Year, other than costs and expenses incurred by the Trustee pursuant to Section
6.14, in connection with any transfer of servicing, shall not be withdrawn
from
the Certificate Account and paid to the Trustee and the Trustee’s reimbursement
for such excess amounts shall be made pursuant to Section 5.02;
(x) subject
to Section 5.01, to pay to itself the Master Servicing Fee;
(xi) to
reimburse the Trustee and a successor master servicer (solely in its capacity
as
successor master servicer), for any fee or advance occasioned by a termination
of the Master Servicer, and the assumption of such duties by the Trustee or
a
successor master servicer appointed by the Trustee pursuant to Section 6.14,
in
each case to the extent not reimbursed by the terminated Master Servicer, it
being understood, in the case of any such reimbursement or payment, that the
right of the Master Servicer or the Securities Administrator thereto shall
be
prior to the rights of the Certificateholders;
(xii) to
make
payments out of the Master Servicing Fee (A) to the Trustee to pay the Trustee
Fee, if due and (B) to Deutsche Bank National Trust Company and ▇▇▇▇▇ Fargo
Bank, N.A., in their respective capacities as Custodians, to pay the Custodial
Compensation, if due;
(xiii) to
make
distributions to Certificateholders pursuant to Article V;
(xiv) to
make
payment to itself, the Securities Administrator, the Trustee, Deutsche Bank
National Trust Company and ▇▇▇▇▇ Fargo Bank, N.A., in their respective
capacities as Custodians, and others pursuant to any provision of this
Agreement;
(xv) to
withdraw funds deposited in error in the Certificate Account;
(xvi) to
clear
and terminate the Certificate Account pursuant to Section 7.02; and
88
(xvii) to
pay to
the Seller any income and gain realized on the Certificate Account from any
Eligible Investment other than during the Master Servicer Investment Period
in
accordance with Section 4.01(e) hereto;
In
connection with withdrawals made pursuant to subclauses (i), (iii), (iv), (vi)
and (vii) above, the Master Servicer’s, any Servicer’s or such other Person’s
entitlement thereto is limited to collections or other recoveries on the related
Mortgage Loan. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal made from the Certificate Account it maintains
pursuant to such subclause (i), (iii), (iv), (vi) and (vii).
|
Section
4.03.
|
Reports
to Certificateholders.
|
(a) On
each
Distribution Date, the Securities Administrator shall have prepared (based
solely on information provided by the Swap Counterparty or the Servicer to
the
Master Servicer or the Securities Administrator) and shall make available to
the
Trustee, any NIMS Insurer, the Swap Counterparty, the Credit Risk Manager,
the
Mortgage Loan Administrator, the Seller and each Certificateholder a report
(the
“Distribution Date Statement”) setting forth the following information (on the
basis of Mortgage Loan level information obtained from the Master
Servicer):
(i) the
aggregate amount of the distribution to be made on such Distribution Date to
the
Holders of each Class of Certificates, to the extent applicable, allocable
to
principal on the Mortgage Loans, including Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled principal
payments and unscheduled payments in the nature of principal;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date to
the
Holders of each Class of Certificates allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any distribution to the Holders of the Class P Certificate,
the Class X Certificates, the Class LT-R Certificates, and the Residual
Certificate;
(iv) (A) the
aggregate amount of any Advances required to be made as of the end of the month
immediately preceding the month in which the Distribution Date occurs by or
on
behalf of the Servicers (or the Master Servicer) with respect to such
Distribution Date, (B) the aggregate amount of such Advances actually made,
and (C) the amount, if any, by which (A) above exceeds (B)
above;
(v) by
Mortgage Pool and in the aggregate, the total number of Mortgage Loans, the
aggregate Scheduled Principal Balance of all the Mortgage Loans as of the close
of business on the last day of the related Collection Period, after giving
effect to payments allocated to principal reported under clause (i)
above;
(vi) the
Class
Principal Amount of each Class of Certificates, to the extent applicable, as
of
such Distribution Date after giving effect to payments allocated to principal
reported under clause (i) above, separately identifying any reduction of any
of
the foregoing Certificate Principal Amounts due to Applied Loss
Amounts;
89
(vii) the
amount of any Prepayment Premiums distributed to the Class P Certificates;
(viii) by
Mortgage Pool and in the aggregate, the amount of any Realized Losses incurred
with respect to the Mortgage Loans (x) in the applicable Prepayment Period
and
(y) in the aggregate since the Cut-off Date;
(ix) the
amount of the Servicing Fees, Credit Risk Manager’s Fees and PMI Insurance
Premiums paid during the Collection Period to which such distribution
relates;
(x) by
Mortgage Pool and in the aggregate, the number and aggregate Scheduled Principal
Balance of Mortgage Loans, as reported to the Securities Administrator by the
Master Servicer, (a) remaining outstanding, (b) Delinquent 30 to 59 days on
a
contractual basis, (c) Delinquent 60 to 89 days on a contractual basis, (d)
Delinquent 90 or more days on a contractual basis, (e) as to which foreclosure
proceedings have been commenced, all as of the close of business on the last
Business Day of the calendar month immediately preceding the month in which
such
Distribution Date occurs, (f) in bankruptcy and (g) that are REO Properties
(the
information in this item (x) to be calculated utilizing the OTS delinquency
method);
(xi) the
aggregate Scheduled Principal Balance of any Mortgage Loans with respect to
which the related Mortgaged Property became a REO Property as of the close
of
business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs;
(xii) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xiii) the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, if any, for each Class
of Certificates, after giving effect to the distribution made on such
Distribution Date;
(xiv) the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates;
(xv) with
respect to each Mortgage Pool, the Interest Remittance Amount and the Principal
Remittance Amount applicable to such Distribution Date;
(xvi) if
applicable, the amount of any shortfall (i.e., the difference between the
aggregate amounts of principal and interest which Certificateholders would
have
received if there were sufficient available amounts in the Certificate Account
and the amounts actually distributed);
90
(xvii) the
amount of any Overcollateralization Deficiency after giving effect to the
distributions made in such Distribution Date;
(xviii) the
aggregate amount of any insurance claim payments received with respect to the
Bulk PMI Policy and any LPMI Policy during the related Collection Period;
(xix) the
level
of LIBOR for such Distribution Date;
(xx) the
amount of any payments made by the Cap Counterparty to the Supplemental Interest
Trust made pursuant to Section 5.07(d);
(xxi) the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 5.07, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.07, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Sections 5.07 and any Swap Termination Payment to the Swap
Counterparty made pursuant to Section 5.07; and
(xxii) the
amount of any PPTL Premiums and FPD Premiums, if any, for such Distribution
Date.
In
addition to the information listed above, such Distribution Date Statement
shall
also include such other information as is required by Item 1121 (§ 229.1121) of
Regulation AB and as provided to the Securities Administrator pursuant to this
Agreement.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi) above,
the amounts shall also (except in the case of the report delivered to the holder
of the Class X Certificates) be expressed as a dollar amount per $1,000 of
original principal amount of Certificates.
On
any
Distribution Date after the occurrence of a Section 7.01(c) Purchase Event,
the
information required by subclauses (i), (iii), (iv), (v), (vii), (viii), (ix),
(x), (xi), (xii), (xv), (xvii), (xviii), (xx) and (xxi) shall be made available
to the Trustee, the NIMS Insurer, the Swap Counterparty, the Credit Risk
Manager, the Seller, the holder of the Class LT-R Certificate and the
LTURI-holder with regard to the Lower Tier REMIC 1 Uncertificated Regular
Interests in lieu of the Certificates.
The
Securities Administrator shall make such report and any additional loan level
information (and, at its option, any additional files containing the same
information in an alternative format) available each month to the Trustee,
any
NIMS Insurer, Certificateholders and the Rating Agencies 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 ▇-▇▇▇-▇▇▇-▇▇▇▇. Such parties that are
unable to use the website are entitled to have a paper copy mailed to them
via
first class mail by calling the customer service desk and indicating such.
The
Securities Administrator shall have the right to change the way such statements
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes.
91
The
foregoing information and reports shall be prepared and determined by the
Securities Administrator based solely on Mortgage Loan data provided to the
Securities Administrator by the Master Servicer (in a format attached hereto
as
Exhibit J) no later than 2:00 p.m. Eastern Time four Business Days prior to
the
Distribution Date, and on the information provided to the Securities
Administrator by the Swap Counterparty and the Cap Counterparty. In preparing
or
furnishing the foregoing information to the Trustee, Certificateholders and
any
NIMS Insurer, the Securities Administrator shall be entitled to rely
conclusively on the accuracy and completeness of the information or data (i)
regarding the Mortgage Loans and the related REO Property, that has been
provided to the Securities Administrator by the Master Servicer and each
Servicer, (ii) regarding the Swap Agreement, that has been provided to the
Securities Administrator by the Swap Counterparty and (iii) regarding the
Interest Rate Cap Agreement, that has been provided to the Securities
Administrator by the Cap Counterparty, and the Securities Administrator shall
not be obligated to verify, recompute, reconcile or recalculate any such
information or data. The Securities Administrator shall be entitled to
conclusively rely on the Mortgage Loan data provided by the Master Servicer
and
shall have no liability for any errors or omissions in such Mortgage Loan data.
The information and reports described in the first paragraph of this Section
4.03(a) shall be made available to the Trustee by the Securities Administrator
no later than 12:00 p.m. Eastern Time two Business Days prior to the
Distribution Date. Concurrently with the distribution by the Master Servicer
of
the Mortgage Loan data to the Securities Administrator, the Master Servicer
shall also make available a copy of such Mortgage Loan data to the Credit Risk
Manager no later than 2:00 p.m. Eastern Time four Business Days prior to the
Distribution Date.
(b) Upon
the
reasonable advance written request of any NIMS Insurer or any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee, shall be promptly forwarded to the Securities
Administrator, the Securities Administrator shall provide, or cause to be
provided, (or, to the extent that such information or documentation is not
required to be provided by a Servicer under the applicable Servicing Agreement,
shall use reasonable efforts to obtain such information and documentation from
such Servicer, and provide) to any NIMS Insurer and such Certificateholder
such
reports and access to information and documentation regarding the Mortgage
Loans
as any NIMS Insurer or such Certificateholder may reasonably deem necessary
to
comply with applicable regulations of the Office of Thrift Supervision or its
successor or other regulatory authorities with respect to an investment in
the
Certificates; provided,
however,
that the
Securities Administrator shall be entitled to be reimbursed by such
Certificateholder or the NIMS Insurer for the actual expenses incurred in
providing such reports and access.
(c) Upon
request of a Certificateholder and prior to a Section 7.01(c) Purchase Event,
the Trustee shall have prepared and the Trustee shall make available to any
NIMS
Insurer and each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to any NIMS Insurer and
the
Certificateholders pursuant to Sections 4.03(a)(i) and 4.03(a)(ii) on an annual
basis as may be required to enable any NIMS Insurer and such Holders to prepare
their federal income tax returns; provided,
however,
that
this Section 4.03(c) shall not be applicable where relevant reports or summaries
are required elsewhere in this Agreement. Such information shall also include
the amount of original issue discount accrued on each Class of Certificates
and
information regarding the expenses of the Trust Fund. The Trustee shall be
deemed to have satisfied this requirement if it forwards such information in
any
other format permitted by the Code. The Securities Administrator shall provide
the Trustee with such information as is necessary for the Trustee to prepare
such reports (and the Trustee may rely solely upon such
information).
92
(d) The
Securities Administrator shall furnish any other information that is required
by
the Code and regulations thereunder to be made available to Certificateholders.
The Master Servicer shall provide the Securities Administrator with such
information as is necessary for the Securities Administrator to prepare such
reports (and the Securities Administrator may rely solely upon such
information).
(e) The
Master Servicer shall provide to the Depositor or to any party designated by
the
Depositor, as promptly as practicable upon the Depositor's request, any and
all
loan-level information that the Depositor may request in any format reasonably
requested by the Depositor.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
|
Section
5.01.
|
Distributions
Generally.
|
(a) Subject
to Section 7.01 respecting the final distribution on the Certificates or Lower
Tier REMIC 1 Uncertificated Regular Interests, on each Distribution Date the
Securities Administrator shall make distributions based on the Distribution
Date
Statement for such Distribution Date prepared by it pursuant to Section 4.03(a).
Such distributions shall be made by wire transfer in immediately available
funds
to an account specified in writing to the Securities Administrator at least
five
(5) Business Days prior to the first Distribution Date to such Certificateholder
and at the expense of such Certificateholder.
(b) The
final
distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office of the
Securities Administrator; provided,
however,
that
the foregoing provisions shall not apply to any Class of Certificates as long
as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Notwithstanding such final payment of principal of any of the
Certificates, each Residual Certificate will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts due
with
respect to the Residual Certificates and at such time such final payment in
retirement of any Residual Certificate will be made only upon presentation
and
surrender of such Certificate at the Corporate Trust Office of the Securities
Administrator. If any payment required to be made on the Certificates or Lower
Tier REMIC 1 Uncertificated Regular Interests is to be made on a day that is
not
a Business Day, then such payment will be made on the next succeeding Business
Day.
93
(c) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Amounts (or Percentage Interests).
(d) The
Securities Administrator shall make payments to Certificateholders and to the
Swap Counterparty and any other person pursuant to this Article V and make
deposits to the Supplemental Interest Trust based on the Distribution Date
Statement prepared by it in accordance with Section 4.03(a).
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
(a) On
each
Distribution Date on or prior to a Section 7.01(c) Purchase Event or a Trust
Fund Termination Event, the Securities Administrator shall withdraw from the
Certificate Account the Total Distribution Amount (to the extent such amount
is
on deposit in the Certificate Account), and amounts that are available for
payment to the Swap Counterparty, and shall allocate such amount to the
interests issued in respect of each REMIC created pursuant to this Agreement
and
shall distribute such amount as specified in subparagraphs (b) through (i)
of
this Section; provided,
that
amounts that are available for payment to the Swap Counterparty shall be paid
on
the related Swap Payment Date. On each Distribution Date after a Section 7.01(c)
Purchase Event but on or prior to a Trust Fund Termination Event, the Securities
Administrator (or the Paying Agent on behalf of the Securities Administrator)
shall withdraw from the Certificate Account the Total Distribution Amount (to
the extent such amount is on deposit in the Certificate Account), and amounts
that are available for payment to the Swap Counterparty, and shall allocate
such
amount to the interests issued in respect of REMIC 1 created pursuant to this
Agreement and shall distribute such amount as specified in subparagraphs (j)
and
(l) of this Section; provided,
that
amounts that are available for payment to the Swap Counterparty shall be paid
on
the related Swap Payment Date.
(b) On
each
Distribution Date (or, with respect to clauses (i) and (ii) below, on the
related Swap Payment Date), the Securities Administrator shall distribute the
Interest Remittance Amount for Pool 1 for such date in the following order
of
priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date and (B) the Pool Percentage for Pool 1 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 1 for such
Distribution Date;
(ii) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to clause (i) above and subsection 5.02(c)(i) below)
for such Distribution Date;
(iii) to
the
Class A1 Certificates, Current Interest and any Carryforward Interest for such
Class and such Distribution Date; and
94
(iv) for
application pursuant to Section 5.02(d), any Interest Remittance Amount for
Pool
1 remaining undistributed after application pursuant to clause (i) through
(iii)
of this Section 5.02(b) for such Distribution Date.
(c) On
each
Distribution Date (or with respect to clauses (i) and (ii) below on the related
Swap Payment Date), the Securities Administrator shall distribute the Interest
Remittance Amount for Pool 2 for such date in the following order of priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date and (B) the Pool Percentage for Pool 2 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 2 for such
Distribution Date;
(ii) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to clause (i) above and subsection 5.02(b)(i) above)
for such Distribution Date;
(iii) concurrently,
to each Class of the Group 2 Certificates, Current Interest and any Carryforward
Interest for each such Class and such Distribution Date; provided,
however,
that any
shortfall in Current Interest and Carryforward Interest shall be allocated
among
such Classes in proportion to the amount of Current Interest and Carryforward
Interest that would otherwise be distributable thereon; and
(iv) for
application pursuant to Section 5.02(d), any Interest Remittance Amount for
Pool
2 remaining undistributed after application pursuant to clause (i) through
(iii)
of this Section 5.02(c) for such Distribution Date.
(d) On
each
Distribution Date, the Securities Administrator shall distribute the aggregate
of any remaining Interest Remittance Amounts from subsections 5.02(b)(iv) and
5.02(c)(iv) above in the following order of priority:
(i) concurrently,
to each Class of Senior Certificates, Current Interest and any Carryforward
Interest (taking into account distributions pursuant to subsections 5.02(b)(iii)
and 5.02(c)(iii)) above for each such Class and such Distribution Date;
provided, however, that any shortfall in Current Interest and Carryforward
Interest shall be allocated among such Classes in proportion to the amount
of
Current Interest and Carryforward Interest that would otherwise be distributable
thereon;
(ii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
Current Interest and any Carryforward Interest for each such Class and such
Distribution Date;
(iii) to
the
Credit Risk Manager, the Credit Risk Manager’s Fee;
95
(iv) to
the
Trustee, any amounts reimbursable pursuant to Section 4.02 and not previously
reimbursed to the Trustee; and
(v) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of this Section, any Interest Remittance Amount
remaining undistributed for such Distribution Date.
(e) On
each
Distribution Date or related Swap Payment Date, as applicable, the Securities
Administrator shall distribute the Principal Distribution Amount with respect
to
each Mortgage Pool for such date as follows:
(i) On
each
Distribution Date (or, with respect to clauses (A)(1), (A)(2), (B)(1) and (B)(2)
below, on the related Swap Payment Date) (a) prior to the Stepdown Date or
(b)
with respect to which a Trigger Event is in effect, until the aggregate
Certificate Principal Amount of the LIBOR Certificates equals the Target Amount
for such Distribution Date, the Securities Administrator shall make the
following distributions, concurrently:
(A) For
Pool 1:
The
Principal Distribution Amount for Pool 1 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 1 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 1 for such Distribution Date;
(2) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to subsections 5.02(e)(i)(A)(1) above and
5.02(e)(i)(B)(1) below, and to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date);
(3) to
the
Class A1 Certificates, until the Class Principal Amount of such class has been
reduced to zero; and
(4) for
application pursuant to subsection 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 1 remaining undistributed for such Distribution
Date.
(B) For
Pool 2:
The
Principal Distribution Amount for Pool 2 will be distributed in the following
order of priority:
96
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 2 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 2 for such Distribution Date;
(2) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to subsections 5.02(e)(i)(A)(1) above and
5.02(e)(i)(B)(1) above, and to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date);
(3) sequentially,
to the Class A2, Class A3 and Class A4 Certificates, in that order, until the
Class Principal Amount of each such class has been reduced to zero;
and
(4) for
application pursuant to subsection 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 2 remaining undistributed for such Distribution
Date.
(ii) On
each
Distribution Date, the Securities Administrator shall distribute the aggregate
of any remaining Principal Distribution Amounts from subsections
5.02(e)(i)(A)(4) and 5.02(e)(i)(B)(4) above, in the following order of priority:
|
(A)
|
concurrently,
in proportion to the aggregate Class Principal Amounts of the Group
1 and
Group 2 Certificates, after giving effect to principal distributions
on
such Distribution Date pursuant to subsections 5.02(e)(i)(A)(3) and
5.02(e)(i)(B)(3) above, to the Group 1 and Group 2 Certificates,
in each
case in accordance with the Related Senior Priority, until the Class
Principal Amount of each such class has been reduced to zero;
|
|
(B)
|
to
each Class of Subordinate Certificates, in accordance with the Subordinate
Priority, until the Class Principal Amount of each such Class has
been
reduced to zero; and
|
|
(C)
|
for
application as part of Monthly Excess Cashflow for such Distribution
Date,
as provided in subsection (f) of
this Section, any Principal Distribution Amount remaining after
application pursuant to clauses (A) and (B) of this Section
5.02(e)(ii).
|
97
Any
Principal Distribution Amount remaining on any Distribution Date after the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this
Section.
(iii) On
each
Distribution Date (or, with respect to clauses (A) and (B) below, on the related
Swap Payment Date) (a) on or after the Stepdown Date and (b) with respect to
which a Trigger Event is not in effect, the Principal Distribution Amount for
each Mortgage Pool for such date will be distributed in the following order
of
priority:
|
(A)
|
for
deposit into the Swap Account, an amount equal to the lesser of (x)
the
product of (1) the amount of any Net Swap Payment or Swap Termination
Payment (not due to a Swap Counterparty Trigger Event) owed to the
Swap
Counterparty on the related Swap Payment Date (to the extent not
paid
previously or from the Interest Remittance Amount for such Distribution
Date) and (2) the Pool Percentage for the related Mortgage Pool for
such
Distribution Date and (y) the Principal Remittance Amount for such
Mortgage Pool for such Distribution
Date;
|
|
(B)
|
for
deposit into the Swap Account, the amount of any Net Swap Payment
or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event)
owed to
the Swap Counterparty on the related Swap Payment Date (after giving
effect to distributions made pursuant to subsection 5.02(e)(iii)(A)
above,
and to the extent not paid previously or from the Interest Remittance
Amounts for such Distribution
Date);
|
|
(C)
|
(1)
so long as any of the Subordinate Certificates are outstanding, to
the
Class A1 Certificates (from amounts generated by Pool 1, except as
provided below) and to the Group 2 Senior Certificates in accordance
with
the Related Senior Priority (from amounts generated by Pool 2, except
as
provided below) in each case, an amount equal to the lesser of (x)
the
excess of (a) the Principal Distribution Amount for the related Mortgage
Pool for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account on
the
related Swap Payment Date pursuant to clauses (A) and (B) above and
(y)
the Related Senior Principal Distribution Amount for such Mortgage
Pool
for such Distribution Date, in each case, until the Class Principal
Amount
of each such Class has been reduced to zero; provided,
however,
to the extent that the Principal Distribution Amount for a Mortgage
Pool
exceeds the Related Senior Principal Distribution Amount for such
Mortgage
Pool, such excess shall be applied to the Senior Certificates related
to
the other Mortgage Pool (in accordance with the Related Senior Priority),
but in an amount not to exceed the Senior Principal Distribution
Amount
for such Distribution Date (as reduced by any distributions pursuant
to
subclauses (x) or (y) of this clause (1) on such Distribution Date);
or
(2) if none of the Subordinate Certificates are outstanding, to the
Group
1 and Group 2 Senior Certificates (in each case in accordance with
the
Related Senior Priority), the excess of (A) the Principal Distribution
Amount for the related Mortgage Pool for such Distribution Date over
(B)
the amount paid to the Supplemental Interest Trust for deposit into
the
Swap Account for the related Mortgage Pool on the related Swap Payment
Date pursuant to clauses (A) and (B) above, in each case until the
Class
Principal Amount of each such Class has been reduced to
zero;
|
98
|
(D)
|
to
the Class M1 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 2 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates on such date pursuant to clauses
(A) through (C) above, and (y) the M1 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been
reduced
to zero;
|
|
(E)
|
to
the Class M2 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1 Certificates
on
such date pursuant to clauses (A) through (D) above, and (y) the
M2
Principal Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to
zero;
|
|
(F)
|
to
the Class M3 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1 and Class
M2
Certificates on such date pursuant to clauses (A) through (E) above,
and
(y) the M3 Principal Distribution Amount for such date, until the
Class
Principal Amount of such Class has been reduced to
zero;
|
|
(G)
|
to
the Class M4 Certificates, an amount equal to the lesser of (x) the
excess of (a) the aggregate of the Principal Distribution Amounts
for Pool
1 and Pool 3 for such Distribution Date over (b) the amount paid
to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1, Class M2
and
Class M3 Certificates on such date pursuant to clauses (A) through
(F)
above, and (y) the M4 Principal Distribution Amount for such date,
until
the Class Principal Amount of such Class has been reduced to
zero;
|
99
|
(H)
|
to
the Class M5 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1, Class M2,
Class
M3 and Class M4 Certificates on such date pursuant to clauses (A)
through
(G) above, and (y) the M5 Principal Distribution Amount for such
date,
until the Class Principal Amount of such Class has been reduced to
zero;
|
|
(I)
|
to
the Class M6 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1, Class M2,
Class
M3, Class M4 and Class M5 Certificates on such date pursuant to clauses
(A) through (H) above, and (y) the M6 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been
reduced
to zero;
|
|
(J)
|
to
the Class M7 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1, Class M2,
Class
M3, Class M4, Class M5 and Class M6 Certificates on such date pursuant
to
clauses (A) through (I) above, and (y) the M7 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class
has
been reduced to zero;
|
|
(K)
|
to
the Class M8 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1, Class M2,
Class
M3, Class M4, Class M5, Class M6 and Class M7 Certificates on such
date
pursuant to clauses (A) through (J) above, and (y) the M8 Principal
Distribution Amount for such date, until the Class Principal Amount
of
such Class has been reduced to zero;
|
100
|
(L)
|
to
the Class M9 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1, Class M2,
Class
M3, Class M4, Class M5, Class M6, Class M7 and Class M8 Certificates
on
such date pursuant to clauses (A) through (K) above, and (y) the
M9
Principal Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
|
|
(M)
|
to
the Class B1 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1, Class M2,
Class
M3, Class M4, Class M5, Class M6, Class M7, Class M8 and Class M9
Certificates on such date pursuant to clauses (A) through (L) above,
and
(y) the B1 Principal Distribution Amount for such date, until the
Class
Principal Amount of such Class has been reduced to zero;
|
|
(N)
|
to
the Class B2 Certificates, an amount equal to the lesser of (x) the
excess
of (a) the aggregate of the Principal Distribution Amounts for Pool
1 and
Pool 3 for such Distribution Date over (b) the amount paid to the
Supplemental Interest Trust for deposit into the Swap Account or
distributed to the Senior Certificates and the Class M1, Class M2,
Class
M3, Class M4, Class M5, Class M6, Class M7, Class M8, Class M9 and
Class
B1 Certificates on such date pursuant to clauses (A) through (M)
above,
and (y) the B2 Principal Distribution Amount for such date, until
the
Class Principal Amount of such Class has been reduced to zero;
and
|
|
(O)
|
for
application as part of Monthly Excess Cashflow for such Distribution
Date,
as provided in Section 5.02(f), any Principal Distribution Amount
remaining after application pursuant to clauses (A) through (N) above.
|
(f) On
each
Distribution Date, the Securities Administrator shall distribute the Monthly
Excess Cashflow for such date in the following order of priority:
(i) for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the Stepdown Date but for which a Trigger Event is in effect, then until the
aggregate Certificate Principal Amount of the LIBOR Certificates equals the
Target Amount for such Distribution Date, in the following order of
priority:
101
|
(A)
|
concurrently,
to the Group 1 Senior Certificates and Group 2 Senior Certificates,
in
proportion to the aggregate Class Principal Amount of the Senior
Certificates related to each Group, after giving effect to previous
principal distributions on such Distribution Date pursuant to subsection
5.02(e)(ii)(A) above, to the Group 1 Senior Certificates and Group
2
Senior Certificates, in each case in accordance with the Related
Senior
Priority, in reduction of their respective Class Principal Amounts,
until
the Class Principal Amount of each such Class has been reduced to
zero;
and
|
|
(B)
|
to
each Class of Subordinate Certificates, in accordance with the Subordinate
Priority, in reduction of their respective Class Principal Amounts,
until
the Class Principal Amount of each such Class has been reduced to
zero.
|
(ii) for
each
Distribution Date occurring on or after the Stepdown Date and for which a
Trigger Event is not in effect, in the following order of priority:
|
(A)
|
concurrently,
to the Group 1 Senior Certificates and Group 2 Senior Certificates,
in
proportion to the aggregate Class Principal Amount of the Senior
Certificates related to each Group, after giving effect to previous
principal distributions on such Distribution Date pursuant to subsection
5.02(e)(iii)(C) above, to the Group 1 Senior Certificates and Group
2
Senior Certificates, in each case in accordance with the Related
Senior
Priority, in reduction of their respective Class Principal Amounts,
until
the aggregate Class Principal Amount of each such Class, after giving
effect to distributions on such Distribution Date, equals the Senior
Target Amount;
|
|
(B)
|
to
the Class M1 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class
and the
Senior Certificates, after giving effect to distributions on such
Distribution Date, equals the M1 Target
Amount;
|
|
(C)
|
to
the Class M2 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1 Certificates, after giving effect
to
distributions on such Distribution Date, equals the M2 Target
Amount;
|
|
(D)
|
to
the Class M3 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1 and Class M2 Certificates, after
giving effect to distributions on such Distribution Date, equals
the M3
Target Amount;
|
102
|
(E)
|
to
the Class M4 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1, Class M2 and Class M3 Certificates,
after giving effect to distributions on such Distribution Date, equals
the
M4 Target Amount;
|
|
(F)
|
to
the Class M5 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1, Class M2, Class M3 and Class
M4
Certificates, after giving effect to distributions on such Distribution
Date, equals the M5 Target Amount;
|
|
(G)
|
to
the Class M6 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1, Class M2, Class M3, Class M4
and
Class M5 Certificates, after giving effect to distributions on such
Distribution Date, equals the M6 Target Amount;
|
|
(H)
|
to
the Class M7 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1, Class M2, Class M3, Class M4,
Class
M5, and Class M6 Certificates, after giving effect to distributions
on
such Distribution Date, equals the M7 Target Amount;
|
|
(I)
|
to
the Class M8 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1, Class M2, Class M3, Class M4,
Class
M5, Class M6 and Class M7 Certificates, after giving effect to
distributions on such Distribution Date, equals the M8 Target Amount;
|
|
(J)
|
to
the Class M9 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1, Class M2, Class M3, Class M4,
Class
M5, Class M6, Class M7 and Class M8 Certificates, after giving effect
to
distributions on such Distribution Date, equals the M9 Target Amount;
and
|
|
(K)
|
to
the Class B1 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1, Class M2, Class M3, Class M4,
Class
M5, Class M6, Class M7, Class M8 and Class M9 Certificates, after
giving
effect to distributions on such Distribution Date, equals the B1
Target
Amount; and
|
103
|
(L)
|
to
the Class B2 Certificates, in reduction of their Class Principal
Amount,
until the aggregate of the Class Principal Amounts of such Class,
the
Senior Certificates and the Class M1, Class M2, Class M3, Class M4,
Class
M5, Class M6, Class M7, Class M8, Class M9 and Class B1 Certificates,
after giving effect to distributions on such Distribution Date, equals
the
B2 Target Amount;
|
(iii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any Deferred Amount for each such Class and such Distribution Date;
(iv) to
the
Basis Risk Reserve Fund, an amount equal to the Basis Risk Payment for such
Distribution Date, and then from the Basis Risk Reserve Fund, in the following
order of priority:
|
(A)
|
concurrently,
in proportion to their respective Basis Risk Shortfalls and Unpaid
Basis
Risk Shortfalls, to each Class of Senior Certificates, any applicable
Basis Risk Shortfall and Unpaid Basis Risk Shortfall for each such
Class
and such Distribution Date;
|
|
(B)
|
to
each Class of Subordinate Certificates, in accordance with the Subordinate
Priority, any applicable Basis Risk Shortfall and Unpaid Basis Risk
Shortfall for each such Class and such Distribution Date;
and
|
|
(C)
|
to
the Swap Account, for application pursuant to Section 5.02(f)(vi),
any
amounts remaining in the Basis Risk Reserve Fund, after taking into
account distributions pursuant to clauses (A) and (B) above, in
excess of the Required Reserve Fund Deposit for such Distribution
Date;
|
(v) on
the
Distribution Date occurring in August 2011 (or the next succeeding Distribution
Date on which sufficient funds are available in the Certificate Account to
make
such distributions to the Class P Certificates), $100 to the Class P
Certificates in payment of its Class P Principal Amount;
(vi) to
the
Swap Account, the Class X Distributable Amount (less any Basis Risk Payment
for
such Distribution Date) for such Distribution Date, for application pursuant
to
Section 5.02(g)(x) and (g)(xi) below; and
(vii) to
the
Class LT-R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (vi) above to the extent attributable to REMIC
1, and otherwise to the Class R Certificates.
104
(g) On
each
Distribution Date (or, with respect to clauses (i), (ii), (ix) and (x) below,
on
the related Swap Payment Date), the Securities Administrator shall distribute
the Swap Amount for such date as follows:
(i) to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for such Swap Payment Date;
(ii) to
the
Swap Counterparty, any Swap Termination Payment not due to a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap Agreement
for
such Swap Payment Date;
(iii) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class and such Distribution Date, to the extent unpaid (any shortfall
in Current Interest and Carryforward Interest to be allocated among such Classes
in proportion to the amount of Current Interest and Carryforward Interest that
would have otherwise been distributable thereon);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Current
Interest and any Carryforward Interest for each such Class and such Distribution
Date to the extent unpaid;
(v) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount as specified in Sections 5.02(f)(i) and (ii) above
for such Distribution Date, for application pursuant to the priorities set
forth
in such Sections, after giving effect to distributions pursuant to such
Sections; provided, however, that the sum of all such amounts distributed
pursuant to this Section 5.02(g)(v) and all amounts distributed pursuant to
Section 5.02(g)(vi) and Sections 5.02(h)(iii) and (iv) shall not exceed the
aggregate amount of cumulative Realized Losses incurred from the Cut-off Date
through the last day of the related Collection Period less any amounts
previously distributed pursuant to this Section 5.02(g)(v) and Section
5.02(g)(vi) together with any amounts previously distributed pursuant to
Sections 5.02(h)(iii) and (iv);
(vi) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such Class and such Distribution Date, to the extent
unpaid; provided, however, that the sum of all such amounts distributed pursuant
to this Section 5.02(g)(vi) and all amounts distributed pursuant to Section
5.02(g)(v) and Sections 5.02(h)(iii) and (iv) shall not exceed the aggregate
amount of cumulative Realized Losses incurred from the Cut-off Date through
the
last day of the related Collection Period less any amounts previously
distributed pursuant to this Section 5.02(g)(vi) and Section 5.02(g)(v) together
with any amounts previously distributed pursuant to Sections 5.02(h)(iii) and
(iv);
(vii) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class for such Distribution Date, for application pursuant to
the
priorities set forth in Section 5.02(f)(iv)(A), to the extent
unpaid;
105
(viii) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such class and for such Distribution Date, for application
pursuant to the priorities set forth Section 5.02(f)(iv)(B), to the extent
unpaid;
(ix) if
applicable, to the Swap Termination Receipts Account for application to the
purchase of a replacement swap agreement pursuant to Section
5.09(a);
(x) to
the
Swap Counterparty, any Swap Termination Payment due to a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement;
(xi) to
the
Class X Certificates, any amount deposited into the Swap Account pursuant to
Section 5.02(f)(iv)(C) or Section 5.02(f)(vi) and any remaining Swap Amount;
and
(xii) on
the
first Distribution Date on which the Class Principal Amount of each Class of
Certificates has been reduced to zero, to the Class X Certificates, all amounts
remaining in the Swap Account.
(h) On
each
Distribution Date, the Securities Administrator shall distribute the Interest
Rate Cap Amount for such date after making all distributions under Section
5.02(g) above as follows:
(i) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such class for such Distribution Date, to the extent unpaid pursuant to
Section 5.02(g)(iii) above (any shortfall in Current Interest and Carryforward
Interest to be allocated among such Classes in proportion to the amount of
Current Interest and Carryforward Interest that would have otherwise been
distributable thereon);
(ii) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Current
Interest and any Carryforward Interest for such class and such Distribution
Date
to the extent unpaid;
(iii) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount specified in Sections 5.02(f)(i) and (ii) above
for
such Distribution Date, for application pursuant to the priorities set forth
in
such Sections; provided, however, that the sum of all such amounts distributed
pursuant to this Section 5.02(h)(iii) and all amounts distributed pursuant
to
Section 5.02(h)(iv) and Sections 5.02(g)(v) and (vi) shall not exceed the
aggregate amount of cumulative Realized Losses incurred from the Cut-off Date
through the last day of the related Collection Period less any amounts
previously distributed pursuant to this Section 5.02(h)(iii) and Section
5.02(h)(iv) together with any amounts previously distributed pursuant to
Sections 5.02(g)(v) and (vi);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such class and such Distribution Date to the extent
unpaid; provided, however, that the sum of all such amounts distributed pursuant
to this Section 5.02(h)(iv) and all amounts distributed pursuant to Section
5.02(h)(iii) and Sections 5.02(g)(v) and (vi) shall not exceed the aggregate
amount of cumulative Realized Losses incurred from the Cut-off Date through
the
last day of the related Collection Period less any amounts previously
distributed pursuant to this Section 5.02(h)(iv) and Section 5.02(h)(iii)
together with any amounts previously distributed pursuant to Sections 5.02(g)(v)
and (vi);
106
(v) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such class and for such Distribution Date, for application pursuant
to
the priorities set forth in Section 5.02(f)(iv)(A), to the extent
unpaid;
(vi) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such class and for such Distribution Date, for application
pursuant to the priorities set forth in Section 5.02(f)(iv)(B), to the extent
unpaid;
(vii) to
the
Cap Termination Receipts Account for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and
(viii) to
the
Class X Certificates, any remaining Interest Rate Cap Amount.
(i) On
each
Distribution Date, an amount equal to the aggregate of all Prepayment Premiums
collected during the preceding Prepayment Period shall be distributed to the
Class P Certificates.
(j) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but on or
prior to a Trust Fund Termination Event, the Securities Administrator (or the
Paying Agent on behalf of the Securities Administrator), shall withdraw from
the
Certificate Account the Total Distribution Amount (to the extent such amount
is
on deposit in the Certificate Account), and shall allocate such amount to the
interests issued in respect of the Lower Tier REMIC 1 Uncertificated Regular
Interests created pursuant to this Agreement and shall distribute such amount
first,
for
deposit into the Swap Account, an amount equal to any Net Swap Payment or Swap
Termination Payment owed to the Swap Counterparty on the related Swap Payment
Date, second,
to the
Credit Risk Manager, the Credit Risk Manager’s Fee, third,
to the
Trustee, any amounts reimbursable pursuant to Section 4.02 and not previously
reimbursed to the Trustee and fourth,
to the
LTURI-holder, any remaining Total Distribution Amount to the extent payable
on
the Lower Tier REMIC I Uncertificated Regular Interests as provided in the
Preliminary Statement, and fifth,
to the
Class LT-R Certificates.
(k) On
each
Swap Payment Date occurring after a Section 7.01(c) Purchase Event but on or
prior to a Trust Fund Termination Event, the Securities Administrator shall
distribute the Swap Amount for such date first,
to the
Swap Counterparty to pay any Net Swap Payment owed to the Swap Counterparty
pursuant to the Swap Agreement for such Swap Payment Date; second,
to the
Swap Counterparty, to pay any Swap Termination Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Swap Payment Date,
third,
if
applicable, to the Swap Termination Receipts Account, for application to the
purchase of a replacement swap agreement pursuant to Section 5.09(a); and
fourth,
any
remaining amount of Swap Amount, to the LTURI-holder.
107
(l) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but on or
prior to a Trust Fund Termination Event, the Securities Administrator shall
distribute any amounts received from the Cap Counterparty under the Interest
Rate Cap Agreement for such Distribution Date first,
to the
Cap Termination Receipts Account, for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and second,
any
remaining amount from the Cap Counterparty under the Interest Rate Cap
Agreement, to the LTURI-holder
(m) On
each
Distribution Date, an amount equal to the aggregate PPTL Premium and FPD Premium
collected during the preceding Prepayment Period shall be distributed to the
Class X Certificates.
|
Section
5.03.
|
Allocation
of Losses.
|
On
each
Distribution Date, the Class Principal Amounts of the Subordinate Certificates
will be reduced by the amount of any Applied Loss Amount for such date, in
the
following order of priority:
(i) to
the
Class B2 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(ii) to
the
Class B1 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(iii) to
the
Class M9 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(iv) to
the
Class M8 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(v) to
the
Class M7 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(vi) to
the
Class M6 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(vii) to
the
Class M5 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(viii) to
the
Class M4 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(ix) to
the
Class M3 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(x) to
the
Class M2 Certificates, until the Class Principal Amount thereof has been reduced
to zero; and
108
(xi) to
the
Class M1 Certificates, until the Class Principal Amount thereof has been reduced
to zero.
|
Section
5.04.
|
Advances
by Master Servicer and
Servicers.
|
Subject
to Section 9.07, Advances shall be made not later than the Business Day
immediately preceding the related Distribution Date as provided herein. If,
on
any Determination Date, any Servicer determines that any Scheduled Payments
(or
in the case of Simple Interest Mortgage Loans, the amount of any scheduled
interest payments) due during the related Collection Period (other than Balloon
Payments) have not been received, such Servicer shall advance such amount to
the
extent provided in the applicable Servicing Agreement. If any Servicer fails
to
remit Advances required to be made under the applicable Servicing Agreement,
the
Master Servicer shall itself make, or shall cause the successor servicer to
make, such Advance not later than the Business Day immediately preceding the
related Distribution Date. If the Master Servicer determines that an Advance
is
required, it shall not later than the Business Day immediately preceding the
related Distribution Date deposit in the Certificate Account from its own funds
(or funds advanced by the applicable Servicer) immediately available funds
in an
amount equal to such Advance. The Master Servicer and each Servicer shall be
entitled to be reimbursed from the Certificate Account for all Advances made
by
it as provided in Section 4.02. Notwithstanding anything to the contrary herein,
in the event the Master Servicer determines in its reasonable judgment that
an
Advance is non-recoverable, the Master Servicer shall be under no obligation
to
make such Advance.
|
Section
5.05.
|
Compensating
Interest Payments.
|
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicers. Any Compensating Interest Payments made
by
the Servicers shall be a component of the Interest Remittance
Amount.
|
Section
5.06.
|
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 Certificateholders, a Basis Risk Reserve
Fund, into which ▇▇▇▇▇▇ Brothers Holdings Inc. (“LBH”) shall initially deposit
$1,000. The 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 monies, including, without limitation, other monies
of the Securities Administrator held pursuant to this Agreement.
(b) The
Securities Administrator shall make withdrawals from the Basis Risk Reserve
Fund
to make distributions pursuant to Section 5.02(f)(iv) hereof in accordance
with
the Distribution Date Reports.
(c) Funds
in
the Basis Risk Reserve Fund shall be invested in Eligible Investments.
The
Class
X Certificates shall evidence ownership of the Basis Risk Reserve Fund for
federal income tax purposes and LBH on behalf of the Holder thereof shall direct
the Securities Administrator, in writing, as to investment of amounts on deposit
therein. LBH shall be liable for any losses incurred on such investments. In
the
absence of written instructions from LBH as to investment of funds on deposit
in
the Basis Risk Reserve Fund, such funds shall be invested in the ▇▇▇▇▇ Fargo
Advantage Prime Money Market Fund. The Basis Risk Reserve Fund will be
terminated after the earlier of (A) a Section 7.01(c) Purchase Event or (B)
a
Trust Fund Termination Event and any funds remaining in such fund upon such
termination shall be released to Holders of the Class X
Certificates.
109
|
Section
5.07.
|
Supplemental
Interest Trust.
|
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee, in trust, for the benefit of
the
Certificateholders. The Securities Administrator, on behalf of the Supplemental
Interest Trust, shall establish an account (the “Swap Account”), into which LBH
shall initially deposit $1,000. The Swap Account shall be an Eligible Account,
and funds on deposit therein shall be held separate and apart from, and shall
not be commingled with, any other monies, including, without limitation, other
monies of the Securities Administrator held pursuant to this Agreement.
(b) In
addition, the Securities Administrator, on behalf of the Supplemental Interest
Trust, shall establish an account (the “Interest Rate Cap Account”), into which
LBH shall initially deposit $1,000. The Interest Rate Cap Account shall be
an
Eligible Account, and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other monies, including, without
limitation, other monies of the Securities Administrator held pursuant to this
Agreement.
(c) The
Securities Administrator shall deposit into the Swap Account any Net Swap
Payment required pursuant to Sections 5.02(b), (c), (e) and (j), any Swap
Termination Payment required pursuant to Sections 5.02(b), (c), (e) and (j),
any
amounts received from the Swap Counterparty under the Swap Agreement and any
amounts distributed from the Basis Risk Reserve Fund required pursuant to
Sections 5.02(f)(iv)(C) and (f)(vi), and shall distribute from the Swap Account
any Net Swap Payment required pursuant to Section 5.02(g)(i) or Section 5.02(k)
or Swap Termination Payment required pursuant to Sections 5.02(g)(ii), Section
5.02(g)(x), or Section 5.02(k), as applicable.
(d) The
Securities Administrator shall deposit into the Interest Rate Cap Account any
amounts received from the Cap Counterparty under the Interest Rate Cap
Agreement.
(e) Funds
in
the Swap Account shall be invested in Eligible Investments. Any earnings on
such
amounts shall be distributed on each Distribution Date pursuant to Section
5.02(g) or Section 5.02(k), as applicable. The Class X Certificates shall
evidence ownership of the Swap Account for federal income tax purposes and
the
Holder thereof shall direct the Securities Administrator, in writing, as to
investment of amounts on deposit therein. LBH shall be liable for any losses
incurred on such investments. In the absence of written instructions from the
Class X Certificateholders as to investment of funds on deposit in the Swap
Account, such funds shall be invested in the ▇▇▇▇▇ Fargo Advantage Prime Money
Market Fund or comparable investment vehicle. Any amounts on deposit in the
Swap
Account in excess of the Swap Amount on any Distribution Date shall be held
for
distribution pursuant to Section 5.02(g) or Section 5.02(k), as applicable,
on
the following Distribution Date.
110
(f) Funds
in
the Interest Rate Cap Account shall be invested in Eligible Investments. Any
earnings on such amounts shall be distributed on each Distribution Date pursuant
to Section 5.02(h) or Section 5.02(l), as applicable. The Class X Certificates
shall evidence ownership of the Interest Rate Cap Account for federal income
tax
purposes and the Holder thereof shall direct the Securities Administrator,
in
writing, as to investment of amounts on deposit therein. LBH shall be liable
for
any losses incurred on such investments. In the absence of written instructions
from the Class X Certificateholders as to investment of funds on deposit in
the
Interest Rate Cap Account, such funds shall be invested in the ▇▇▇▇▇ Fargo
Advantage Prime Money Market Fund or comparable investment vehicle. Any amounts
on deposit in the Interest Rate Cap Account in excess of the Interest Rate
Cap
Amount on any Distribution Date shall be held for distribution pursuant to
Section 5.02(h) or Section 5.02(l), as applicable, on the following Distribution
Date.
(g) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account shall
be distributed pursuant to the priorities set forth in Sections 5.02(g) or
5.02(k), as applicable.
(h) Upon
termination of the Trust Fund, any amounts remaining in the Interest Rate Cap
Account shall be distributed pursuant to the priorities set forth in Section
5.02(h) or Section 5.02(l), as applicable.
(i) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the holder of the Class X Certificates unless and until
the date when either (a) there is more than one Class X Certificateholder or
(b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes. Neither the Securities Administrator nor the
Trustee shall be responsible for any entity level tax reporting for the
Supplemental Interest Trust.
(j) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Trustee, any obligation of the Trustee or the Securities
Administrator under the Swap Agreement or the Interest Rate Cap Agreement shall
be deemed to be an obligation of the Supplemental Interest Trust.
|
Section
5.08.
|
Rights
of Swap Counterparty.
|
(a) The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement to
the
same extent as if it were a party hereto and shall have the right, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this Agreement, which rights include but are not
limited to the obligation of the Securities Administrator (A) to deposit any
Net
Swap Payment required pursuant to Sections 5.02(b), (c), (e) and (j), and any
Swap Termination Payment required pursuant to Sections 5.02(b), (c), (e) and
(j), into the Swap Account, (B) to deposit any amounts from the Basis Risk
Reserve Fund required pursuant to Sections 5.02(f)(iv)(C) and Section
5.02(f)(vi) into the Swap Account, (C) to pay any Net Swap Payment required
pursuant to Section 5.02(g)(i) or Section 5.02(k), as applicable, or Swap
Termination Payment required pursuant to Sections 5.02(g)(ii), Section
5.02(g)(x) or Section 5.02(k), as applicable to the Swap Counterparty and (D)
to
establish and maintain the Swap Account, to make such deposits thereto,
investments therein and distributions therefrom as are required pursuant to
Section 5.07. For the protection and enforcement of the provisions of this
Section the Swap Counterparty shall be entitled to such relief as can be given
either at law or in equity.
111
|
Section
5.09.
|
Termination
Receipts.
|
(a) In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Swap Account
and paid pursuant to Section 5.02(g)(ix), Section 5.02(j) or Section 5.02(k),
as
applicable (“Termination Receipts”) will be deposited in a segregated
non-interest bearing account which shall be an Eligible Account established
by
the Securities Administrator (the “Swap Termination Receipts Account”) and (ii)
any amounts received from a replacement Swap Counterparty (“Swap Replacement
Receipts”) will be deposited in a segregated non-interest bearing account which
shall be an Eligible Account established by the Securities Administrator (the
“Swap Replacement Receipts Account”). The Securities Administrator shall invest,
or cause to be invested, funds held in the Swap Termination Receipts Account
and
the Swap Replacement Receipts Account in time deposits of the Securities
Administrator as permitted by clause (ii) of the definition of Eligible
Investments or as otherwise directed in writing by a majority of the
Certificateholders. All such investments must be payable on demand or mature
on
a Swap Payment Date, a Distribution Date or such other date as directed by
the
Certificateholders. All such Eligible Investments will be made in the name
of
the Supplemental Interest Trust or its nominee. All income and gain realized
from any such investment shall be deposited in the Swap Termination Receipts
Account or the Swap Replacement Receipts Account, as applicable, and all losses,
if any, shall be borne by the related account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
and
the Securities Administrator shall promptly, with the assistance and cooperation
of the Depositor, use amounts on deposit in the Swap Termination Receipts
Account, if necessary, to enter into replacement Swap Agreement(s) which shall
be executed and delivered by the Securities Administrator on behalf of the
Supplemental Interest Trust upon receipt of written confirmation from each
Rating Agency that such replacement Swap Agreement(s) 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.
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such Swap
Agreement, be paid to the Class X Certificates.
(b) In
the
event of an “Early Termination Event” as defined under the Interest Rate Cap
Agreement, (i) any Cap Termination Payment made by the Cap Counterparty to
the
Interest Rate Cap Account and paid pursuant to Section 5.02(h)(vii) (“Cap
Termination Receipts”) shall be deposited in a segregated non-interest bearing
account which shall be an Eligible Account established by the Securities
Administrator (the “Cap Termination Receipts Account”) and (ii) any amounts
received from a replacement Cap Counterparty (“Cap Replacement Receipts”) will
be deposited in a segregated non-interest bearing account which shall be an
Eligible Account established by the Securities Administrator (the “Cap
Replacement Receipts Account”). The Securities Administrator shall invest, or
cause to be invested, funds held in the Cap Termination Receipts Account in
time
deposits of the Securities Administrator as permitted by clause (ii) of the
definition of Eligible Investments or as otherwise directed in writing by a
majority of the Certificateholders. All such investments must be payable on
demand or mature on a Interest Rate Cap Payment Date, a Distribution Date or
such other date as directed by the Certificateholders. All such Eligible
Investments shall be made in the name of the Supplemental Interest Trust or
its
nominee. All income and gain realized from any such investment shall be
deposited in the Cap Termination Receipts Account and all losses, if any, shall
be borne by such account.
112
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Interest Rate Cap
Agreement(s) and the Securities Administrator shall promptly, with the
assistance and cooperation of the Depositor, use amounts on deposit in the
Cap
Termination Receipts Account, if necessary, to enter into replacement Interest
Rate Cap Agreement(s) which shall be executed and delivered by the Securities
Administrator on behalf of the Supplemental Interest Trust upon receipt of
written confirmation from each Rating Agency that such replacement Interest
Rate
Cap Agreement(s) 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.
ARTICLE
VI
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR;
EVENTS
OF
DEFAULT
|
Section
6.01.
|
Duties
of Trustee and Securities
Administrator.
|
(a) The
Trustee, except during the continuance of an Event of Default, and the
Securities Administrator, undertake to perform such duties and only such duties
as are specifically set forth in this Agreement. Any permissive right of the
Trustee or the Securities Administrator provided for in this Agreement shall
not
be construed as a duty of the Trustee or the Securities Administrator. If an
Event of Default has occurred and has not otherwise been cured or waived, the
Trustee or the Securities Administrator shall exercise such of the rights and
powers vested in it by this Agreement and use the same degree of care and skill
in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person’s own affairs, unless the Securities
Administrator is acting as Master Servicer, in which case it shall use the
same
degree of care and skill as the Master Servicer hereunder.
(b) Each
of
the Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee or the Securities Administrator which
are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are on their face in
the
form required by this Agreement; provided,
however,
that
neither the Trustee nor the Securities Administrator shall be responsible for
the accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicer,
any Servicer, the Swap Counterparty, the Cap Counterparty or the Credit Risk
Manager to the Trustee or the Securities Administrator pursuant to this
Agreement, and shall not be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant
to
this Agreement. Subject to the immediately preceding sentence, if any such
resolution, certificate, statement, opinion, report, document, order or other
instrument is found not to conform on its face to the form required by this
Agreement in a material manner the Trustee or Securities Administrator, as
applicable, shall notify the Person providing such resolutions, certificates,
statements, opinions, reports or other documents of the non-conformity, and
if
the instrument is not corrected to the Trustee’s or Securities Administrator’s,
as applicable, satisfaction, the Trustee or Securities Administrator, as
applicable, will provide notice thereof to the Certificateholders and any NIMS
Insurer and will, at the expense of the Trust Fund, which expense shall be
reasonable given the scope and nature of the required action, take such further
action as directed by the Certificateholders and any NIMS Insurer.
113
(c) Neither
the Trustee nor the Securities Administrator shall have any liability arising
out of or in connection with this Agreement, except for its negligence or
willful misconduct. 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) Neither
the Trustee nor the Securities Administrator shall be liable with respect to
any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders as provided in Section 6.18
hereof;
(ii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have notice
of
any Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such
a
default is received by the Trustee at the address provided in Section 11.07,
and
such notice references the Holders of the Certificates and this
Agreement;
(iii) For
all
purposes under this Agreement, the Securities Administrator shall not be deemed
to have notice of any Event of Default (other than resulting from a failure
by
the Master Servicer to furnish information to the Securities Administrator
when
required to do so) unless a Responsible Officer of the Securities Administrator
has actual knowledge thereof or unless written notice of any event which is
in
fact such a default is received by the Securities Administrator at the Corporate
Trust Office, and such notice references the Holders of the Certificates and
this Agreement;
(iv) No
provision of this Agreement shall require the Trustee or the Securities
Administrator to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it; and none of the provisions
contained in this Agreement shall in any event require the Trustee or the
Securities Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement;
114
(v) Neither
the Trustee nor the Securities Administrator shall be responsible for any act
or
omission of the Master Servicer, any Servicer, the Credit Risk Manager, the
Depositor, the Seller or the Custodian and neither the Securities Administrator
nor the Trustee shall be responsible for any act or omission of the
other.
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however,
that the
Trustee shall promptly remit to the Master Servicer upon receipt any such
complaint, claim, demand, notice or other document (i) which is delivered to
the
address of the Trustee provided in Section 11.07 and makes reference to this
series of Certificate or this Agreement, (ii) of which a Responsible Officer
has
actual knowledge, and (iii) which contains information sufficient to permit
the
Trustee to make a determination that the real property to which such document
relates is a Mortgaged Property.
(e) 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 direction of any NIMS Insurer or the Certificateholders
of any Class holding Certificates which evidence, as to such Class, Percentage
Interests aggregating not less than 25% as to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or the
Securities Administrator or exercising any trust or power conferred upon the
Trustee or the Securities Administrator, as applicable, under this
Agreement.
(f) Neither
the Trustee nor the Securities Administrator shall be required to perform
services under this Agreement, or to expend or risk its own funds or otherwise
incur financial liability for the performance of any of its duties hereunder
or
the exercise of any of its rights or powers if there is reasonable ground for
believing that the timely payment of its fees and expenses or the repayment
of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee or the Securities Administrator, as
applicable, to perform, or be responsible for the manner of performance of,
any
of the obligations of the Master Servicer or any Servicer under this Agreement
or any Servicing 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.
(g) [Reserved.]
(h) The
Trustee shall not and, except as otherwise provided herein, the Securities
Administrator shall not have any duty (A) to see to any recording, filing,
or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing or
to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance or claim under any Insurance Policy, and (C) to see to the payment
or
discharge of any tax, assessment, or other governmental charge or any lien
or
encumbrance of any kind owing with respect to, assessed or levied against,
any
part of the Trust Fund or the Supplemental Interest Trust other than from funds
available in the Certificate Account. Except as otherwise provided herein,
neither the Trustee nor the Securities Administrator shall have any duty to
confirm or verify the contents of any reports or certificates of the Master
Servicer, any Servicer, the Swap Counterparty, the Cap Counterparty or the
Credit Risk Manager delivered to the Trustee or the Securities Administrator
pursuant to this Agreement believed by the Trustee or the Securities
Administrator, as applicable, to be genuine and to have been signed or presented
by the proper party or parties.
115
(i) Neither
the Securities Administrator nor the Trustee shall be liable in its individual
capacity for an error of judgment made in good faith by a Responsible Officer
or
other officers of the Trustee or the Securities Administrator, as applicable,
unless it shall be proved that the Trustee or the Securities Administrator,
as
applicable, was negligent in ascertaining the pertinent facts.
(j) Notwithstanding
anything in this Agreement to the contrary, none of the Securities
Administrator, any Paying Agent or the Trustee shall be liable for special,
indirect or consequential losses or damages of any kind whatsoever (including,
but not limited to, lost profits), even if the Securities Administrator, the
Paying Agent or the Trustee, as applicable, has been advised of the likelihood
of such loss or damage and regardless of the form of action, provided,
however,
that
this Subsection 6.01(j) shall not apply in connection with any failure by the
Securities Administrator to comply with the provisions of Subsections 6.01(l)
hereof and Subsections 9.25(a) and (b) hereof.
(k) Neither
the Securities Administrator nor the Trustee shall be responsible for the acts
or omissions of the other, it being understood that this Agreement shall not
be
construed to render them agents of one another, or of the Master Servicer or
any
Servicer.
(l) The
Securities Administrator shall give prior written notice to the Sponsor, the
Master Servicer and the Depositor of the appointment of any Subcontractor by
it
and a written description (in form and substance satisfactory to the Sponsor
and
the Depositor) of the role and function of each Subcontractor utilized by the
Securities Administrator specifying (A) the identity of each such Subcontractor
and (B) which elements of the servicing criteria set forth under Item 1122(d)
of
Regulation AB will be addressed in assessments of compliance provided by each
such Subcontractor.
|
Section
6.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
Except
as
otherwise provided in Section 6.01:
(a) Each
of
the Trustee and the Securities Administrator may request, and may rely and
shall
be protected in acting or refraining from acting upon any resolution, Officer’s
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(b) Each
of
the Trustee and the Securities Administrator may consult with counsel and any
advice of its counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
116
(c) Neither
the Trustee nor the Securities Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and reasonably believed
by
it to be authorized or within the discretion or rights or powers conferred
upon
it by this Agreement;
(d) Unless
an
Event of Default shall have occurred and be continuing, neither the Trustee
nor
the Securities Administrator shall be bound to make any investigation into
the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document (provided the same appears regular on its face), unless requested
in
writing to do so by any NIMS Insurer or the Holders of at least a majority
in
Class Principal Amount (or Percentage Interest) of each Class of Certificates;
provided,
however,
that, if
the payment within a reasonable time to the Trustee or the Securities
Administrator, as applicable, of the costs, expenses or liabilities likely
to be
incurred by it in the making of such investigation is, in the opinion of the
Trustee or the Securities Administrator, as applicable, not reasonably assured
to the Trustee or the Securities Administrator by the security afforded to
it by
the terms of this Agreement, the Trustee or the Securities Administrator, as
applicable, may require reasonable indemnity against such expense or liability
or payment of such estimated expenses from any NIMS Insurer or the
Certificateholders, as applicable, as a condition to proceeding. The reasonable
expense thereof shall be paid by the party requesting such investigation and
if
not reimbursed by the requesting party shall be reimbursed to the Trustee by
the
Trust Fund;
(e) Each
of
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, custodians or attorneys, which agents, custodians or attorneys
shall have any and all of the rights, powers, duties and obligations of the
Trustee and the Securities Administrator conferred on them by such appointment,
provided that each of the Trustee and the Securities Administrator shall
continue to be responsible for its duties and obligations hereunder to the
extent provided herein, and provided further that neither the Trustee nor the
Securities Administrator shall be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed with due care by the Trustee
or the Securities Administrator, as applicable;
(f) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto,
in
each case at the request, order or direction of any of the Certificateholders
or
any NIMS Insurer pursuant to the provisions of this Agreement, unless such
Certificateholders or any NIMS Insurer shall have offered to the Trustee or
the
Securities Administrator, as applicable, reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby;
(g) The
right
of the Trustee and 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
(h) Neither
the Trustee nor the Securities Administrator shall be required to give any
bond
or surety in respect of the execution of the Trust Fund or Supplemental Interest
Trust created hereby or the powers granted hereunder.
117
|
Section
6.03.
|
Trustee
and Securities Administrator Not Liable for
Certificates.
|
The
Trustee and the Securities Administrator make no representations as to the
validity or sufficiency of this Agreement, the Swap Agreement, the Interest
Rate
Cap Agreement, the Bulk PMI Policies, the Certificates (other than the
certificate of authentication on the Certificates) or the Lower Tier REMIC
1
Uncertificated Regular Interests, or of any Mortgage Loan, or related document
save that the Trustee and the Securities Administrator represent that, assuming
due execution and delivery by the other parties hereto, this Agreement has
been
duly authorized, executed and delivered by it and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms except
that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law.
The
Trustee and the Securities Administrator shall not be accountable for the use
or
application by the Depositor of funds paid to the Depositor in consideration
of
the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for
the use or application of any funds deposited into the Certificate Account,
any
Escrow Account or any other fund or account maintained with respect to the
Certificates. The Trustee and the Securities Administrator shall not be
responsible for the legality or validity of this Agreement, the Swap Agreement
or the Interest Rate Cap Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates or the Lower Tier REMIC 1
Uncertificated Regular Interests issued or intended to be issued hereunder.
The
Trustee shall not, and except as otherwise provided herein, the Securities
Administrator shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
|
Section
6.04.
|
Trustee
and the Securities Administrator May Own
Certificates.
|
The
Trustee and the Securities Administrator and any Affiliate or agent of either
of
them in its individual or any other capacity may become the owner or pledgee
of
Certificates and may transact banking and trust business with the other parties
hereto and their Affiliates with the same rights it would have if it were not
Trustee, Securities Administrator or such agent.
|
Section
6.05.
|
Eligibility
Requirements for Trustee and Securities
Administrator.
|
The
Trustee and the Securities Administrator hereunder shall at all times be (i)
an
institution whose accounts are insured by the FDIC, (ii) a corporation or
national banking association, organized and doing business under the laws of
any
State or the United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority and (iii) not an Affiliate of the Master Servicer or any Servicer
(except in the case of the Securities Administrator). If such corporation or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In addition, the Securities Administrator (i) may not
be
an originator of Mortgage Loans, the Master Servicer, a Servicer, the Depositor
or an affiliate of the Depositor unless the Securities Administrator is in
an
institutional trust department of the Securities Administrator, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization and (iii) must be rated at least “A/F1” by Fitch, if Fitch is a
Rating Agency that has rated the Securities Administrator, or the equivalent
rating by S&P or Moody’s. In case at any time the Trustee or the Securities
Administrator shall cease to be eligible in accordance with provisions of this
Section, the Trustee or the Securities Administrator, as applicable, shall
resign immediately in the manner and with the effect specified in Section
6.06.
118
|
Section
6.06.
|
Resignation
and Removal of Trustee and the Securities
Administrator.
|
(a) Each
of
the Trustee and the Securities Administrator may at any time resign and be
discharged from the trust hereby created by giving written notice thereof to
the
Trustee or the Securities Administrator, as applicable, the Depositor, the
Swap
Counterparty, the Cap Counterparty, any NIMS Insurer and the Master Servicer.
Upon receiving such notice of resignation, the Depositor will promptly appoint
a
successor trustee or a successor securities administrator, as applicable,
acceptable to any NIMS Insurer by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee and the resigning
Securities Administrator, as applicable, one copy to the successor trustee
or
successor securities administrator, as applicable, and one copy to each of
the
Master Servicer and any NIMS Insurer. If no successor trustee or successor
securities administrator shall have been so appointed and shall have accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or resigning Securities Administrator, as applicable, may
petition any court of competent jurisdiction for the appointment of a successor
trustee or successor securities administrator, as applicable.
(b) If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.05 and shall fail to resign after written request
therefor by the Depositor or any NIMS Insurer, (ii) the Trustee or the
Securities Administrator shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or the Securities
Administrator of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or the Securities Administrator or of
either of their property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii) the Securities Administrator shall fail
to
observe or perform in any material respect any of the covenants or agreements
of
the Securities Administrator contained in this Agreement, including any failure
to provide the information, reports, assessments or attestations required
pursuant to Subsection 9.25(a) or 9.25(b) hereof, (iv) a tax is imposed or
threatened with respect to the Trust Fund by any state in which the Trustee
or
the Trust Fund held by the Trustee is located, (v) the continued use of the
Trustee or Securities Administrator would result in a downgrading of the rating
by any Rating Agency of any Class of Certificates with a rating, (vi) the Paying
Agent shall fail to provide the information required pursuant to Subsection
3.08(b) hereof or (vii) the Depositor desires to replace the Securities
Administrator with a successor Securities Administrator, then the Depositor,
the
Master Servicer, the Trustee (with regard to clause (iii) only) or any NIMS
Insurer shall remove the Trustee, the Paying Agent or the Securities
Administrator, as applicable, and the Depositor shall appoint a successor
trustee or successor securities administrator, as applicable, acceptable to
any
NIMS Insurer and the Master Servicer by written instrument, one copy of which
instrument shall be delivered to the Trustee or Securities Administrator so
removed, one copy each to the successor trustee or successor securities
administrator, as applicable, and one copy to each of the Master Servicer and
any NIMS Insurer.
119
(c) The
Holders of more than 50% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates (or any NIMS Insurer in the event of failure
of
the Trustee or Securities Administrator, as applicable, to perform its
obligations hereunder) may at any time upon 30 days’ written notice to the
Trustee or the Securities Administrator, as applicable, and to the Depositor
remove the Trustee or the Securities Administrator, as applicable, by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized (or by any NIMS Insurer), one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee, one copy each to the Master
Servicer and any NIMS Insurer; the Depositor shall thereupon appoint a successor
trustee or successor securities administrator, as applicable, in accordance
with
this Section mutually acceptable to the Depositor, the Master Servicer and
any
NIMS Insurer.
(d) Any
resignation or removal of the Trustee or the Securities Administrator, as
applicable, and appointment of a successor trustee or successor securities
administrator pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee or the
successor securities administrator, as applicable, as provided in Section
6.07.
|
Section
6.07.
|
Successor
Trustee and Successor Securities
Administrator.
|
(a) Any
successor trustee or successor securities administrator appointed as provided
in
Section 6.06 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, any NIMS Insurer, the Swap Counterparty and to its predecessor trustee
or predecessor securities administrator, as applicable, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee or predecessor securities administrator, as applicable,
shall become effective and such successor trustee or successor securities
administrator, as applicable, 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, as applicable, herein. A predecessor trustee shall
deliver to the Trustee or any successor trustee (or assign to the Trustee its
interest under the Custodial Agreement, to the extent permitted thereunder),
all
Mortgage Files and documents and statements related to each Mortgage File held
by it hereunder, and shall duly assign, transfer, deliver and pay over to the
successor trustee the entire Trust Fund, together with all necessary instruments
of transfer and assignment or other documents properly executed necessary to
effect such transfer and such of the records or copies thereof maintained by
the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Master Servicer and
the
predecessor trustee or predecessor securities administrator, as applicable,
shall execute and deliver such other instruments and do such other things as
may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee or successor securities administrator, as applicable, all
such
rights, powers, duties and obligations.
(b) No
successor trustee or successor securities administrator shall accept appointment
as provided in this Section unless at the time of such appointment such
successor trustee or successor securities administrator shall be eligible under
the provisions of Section 6.05.
120
(c) Upon
acceptance of appointment by a successor trustee or successor securities
administrator, as applicable, as provided in this Section, the predecessor
trustee or predecessor securities administrator, as applicable, shall mail
notice of the succession of such trustee or securities administrator, as
applicable, to all Holders of Certificates at their addresses as shown in the
Certificate Register and to any Rating Agency. The expenses of such mailing
shall be borne by the predecessor trustee or predecessor securities
administrator, as applicable.
(d) Upon
the
resignation or removal of the Trustee pursuant to this Section 6.06, the Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee upon the appointment of the
successor trustee.
|
Section
6.08.
|
Merger
or Consolidation of Trustee or the Securities
Administrator.
|
Any
Person into which the Trustee or Securities Administrator may be merged or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee or Securities Administrator
shall be a party, or any Persons succeeding to the corporate trust business
of
the Trustee or Securities Administrator, shall be the successor to the Trustee
or Securities Administrator hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided
that, in
the case of the Trustee, such Person shall be eligible under the provisions
of
Section 6.05. As a condition to a succession to the Trustee or the Securities
Administrator under this Agreement by any Person (i) into which the Trustee
or
the Securities Administrator may be merged or consolidated, or (ii) which may
be
appointed as a successor to the Trustee or the Securities Administrator, the
Trustee or the Securities Administrator shall notify the Sponsor, the Master
Servicer and the Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, of such succession or appointment and
shall furnish to the Sponsor, the Master Servicer and the Depositor in writing
and in form and substance reasonably satisfactory to the Sponsor, the Master
Servicer and the Depositor, all information reasonably necessary for the
Securities Administrator to accurately and timely report, pursuant to Section
6.20, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or
Custodian.
|
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Percentage Interest) of every Class of Certificates shall
have the power from time to time to appoint one or more Persons, approved by
the
Trustee and any NIMS Insurer, to act either as co-trustees jointly with the
Trustee, or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee has been advised by the Master Servicer that such separate trustee
or
co-trustee is necessary or advisable) under the laws of any state in which
a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state
in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or
custodians so appointed shall be trustees or custodians for the benefit of
all
the Certificateholders and shall have such powers, rights and remedies as shall
be specified in the instrument of appointment; provided,
however,
that no
such appointment shall, or shall be deemed to, constitute the appointee an
agent
of the Trustee. The obligation of the Securities Administrator to make Advances
pursuant to Section 5.04 and 6.14 hereof shall not be affected or assigned
by
the appointment of a co-trustee. Notwithstanding the foregoing, no such
co-custodian or co-trustee shall be vested with any powers, rights and remedies
under this Agreement unless such party has agreed to comply with all Regulation
AB requirements set forth under this Agreement or the related Custodial
Agreement, as applicable.
121
(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of monies shall be exercised solely by the
Trustee;
(ii) all
other
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, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed 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 by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by it
or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(c) 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,
co-trustee or custodian shall refer to this Agreement and the conditions of
this
Article VI. 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 given to the Master
Servicer and any NIMS Insurer.
122
(d) Any
separate trustee, co-trustee or custodian 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, co-trustee
or
custodian 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.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g) The
Trustee shall pay the reasonable compensation of the co-trustees requested
by
the Trustee to be so appointed (which compensation shall not reduce any
compensation payable to the Trustee ) and, if paid by the Trustee, shall be
a
reimbursable expense pursuant to Section 6.12.
|
Section
6.10.
|
Authenticating
Agents.
|
(a) The
Securities Administrator may appoint one or more Authenticating Agents which
shall be authorized to act on behalf of the Securities Administrator in
authenticating Certificates. Wherever reference is made in this Agreement to
the
authentication of Certificates by the Securities Administrator or the Securities
Administrator’s certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Securities Administrator by an
Authenticating Agent and a certificate of authentication executed on behalf
of
the Securities Administrator by an Authenticating Agent. Each Authenticating
Agent must be a corporation organized and doing business under the laws of
the
United States of America or of any state, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business
and
subject to supervision or examination by federal or state authorities and
acceptable to any NIMS Insurer.
(b) Any
Person into which any Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Securities
Administrator or the Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Securities Administrator, the Trustee,
any
NIMS Insurer and the Depositor. The Securities Administrator may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent, any NIMS Insurer and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case
at
any time any Authenticating Agent shall cease to be eligible in accordance
with
the provisions of this Section 6.10, the Securities Administrator may appoint
a
successor Authenticating Agent, shall give written notice of such appointment
to
the Depositor and any NIMS Insurer and shall mail notice of such appointment
to
all Holders of Certificates. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect
as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No
Authenticating Agent shall have responsibility or liability for any action
taken
by it as such at the direction of the Securities Administrator. Any
Authenticating Agent shall be entitled to reasonable compensation for its
services and, if paid by the Securities Administrator, it shall be a
reimbursable expense pursuant to Section 6.12.
123
|
Section
6.11.
|
Indemnification
of Trustee and Securities
Administrator.
|
The
Trustee and the Securities Administrator and their respective directors,
officers, employees and agents shall be entitled to indemnification from the
Trust Fund for any loss, liability or expense incurred in connection with any
legal proceeding or incurred without negligence or willful misconduct on their
part, arising out of, or in connection with, the acceptance or administration
of
the trusts created hereunder or in connection with the performance of their
duties hereunder or under the Swap Agreement, the Interest Rate Cap Agreement,
the Mortgage Loan Sale Agreement, the Transfer Agreement, any Servicing
Agreement, the MGIC Letter Agreement or the PMI Letter Agreement or the
Custodial Agreement, including any applicable fees and expenses payable pursuant
to Section 6.12 and the costs and expenses of defending themselves against
any
claim in connection with the exercise or performance of any of their powers
or
duties hereunder, provided that:
(i) with
respect to any such claim, the Trustee or the Securities Administrator, as
applicable, shall have given the Depositor, the Master Servicer, any NIMS
Insurer and the Holders written notice thereof promptly after a Responsible
Officer of the Trustee or the Securities Administrator, as applicable, shall
have knowledge thereof provided that the failure to provide such prompt written
notice shall not affect the Trustee’s or Securities Administrator’s right to
indemnification hereunder;
(ii) while
maintaining control over its own defense, the Trustee or the Securities
Administrator, as applicable, shall cooperate and consult fully with the
Depositor, the Master Servicer and any NIMS Insurer in preparing such defense;
and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee or the Securities
Administrator, as applicable, entered into without the prior consent of the
Depositor, the Master Servicer and any NIMS Insurer, which consent shall not
be
unreasonably withheld.
The
Trustee shall be further indemnified by the Seller for and held harmless
against, any loss, liability or expense arising out of, or in connection with,
the provisions set forth in the fourth paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating to
the
provisions of such paragraph.
124
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee or the Securities Administrator,
as applicable, and shall be construed to include, but not be limited to any
loss, liability or expense under any environmental law.
|
Section
6.12.
|
Fees
and Expenses of Securities Administrator, Trustee and
Custodians.
|
The
Trustee shall be entitled, annually, to the Trustee Fee, which shall be paid
by
the Securities Administrator on the first Distribution Date of each Anniversary
Year from the Master Servicing Fee. The Securities Administrator shall be
entitled to the Master Servicing Fee (other than any amounts required to be
deducted in respect of the Trustee Fee and Custodial Compensation as provided
in
Section 4.01). Each of Deutsche Bank National Trust Company and ▇▇▇▇▇ Fargo
Bank, N.A., in their respective capacities as a Custodian, shall be entitled
to
the Custodial Compensation provided for in the applicable Custodial Agreement
which shall be paid by the Securities Administrator as invoiced by each such
Custodian. The Trustee and the Securities Administrator shall be entitled to
reimbursement of all reasonable expenses, disbursements and advances incurred
or
made by the Securities Administrator or Trustee, as applicable, in accordance
with this Agreement (including fees and expenses of its counsel and all persons
not regularly in its employment and any amounts described in Section 10.01
to
which such party is entitled as provided therein), except for expenses,
disbursements and advances that either (i) do not constitute “unanticipated
expenses” within the meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii)
or (ii) arise from its negligence, bad faith or willful misconduct. If either
the Trustee Fee or any Custodial Compensation is not fully paid from the Master
Servicing Fee, the Trust Fund shall immediately reimburse the Trustee or the
related Custodian, as applicable, upon demand for any shortfall from amounts
on
deposit in the Certificate Account. The Custodian shall receive compensation
and
reimbursement or payment of its expenses under the Custodial Agreement as
provided therein; provided
that,
to the
extent required under Section 6 or Section 20 of the Custodial Agreement, the
Securities Administrator is hereby authorized to pay such compensation from
amounts on deposit in the Certificate Account prior to any distributions to
Certificateholders pursuant to Section 5.02 hereof.
|
Section
6.13.
|
Collection
of Monies.
|
Except
as
otherwise expressly provided in this Agreement, the Securities Administrator
and
the Trustee, as applicable, may demand payment or delivery of, and shall receive
and collect, all money and other property payable to or receivable by it
pursuant to this Agreement. The Securities Administrator and the Trustee shall
hold all such money and property received by it as part of the Trust Fund and
shall distribute it as provided in this Agreement. If the Securities
Administrator shall not have timely received amounts to be remitted with respect
to the Mortgage Loans from the Master Servicer, the Securities Administrator
shall request the Master Servicer to make such distribution as promptly as
practicable or legally permitted. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Securities
Administrator, the Trustee shall request the Securities Administrator to make
such distribution as promptly as practicable or legally permitted. If the
Securities Administrator or the Trustee shall subsequently receive any such
amounts, each may withdraw such request, respectively.
125
|
Section
6.14.
|
Events
of Default; Trustee To Act; Appointment of
Successor.
|
(a) The
occurrence of any one or more of the following events shall constitute an “Event
of Default”:
(i) Any
failure by the Master Servicer to furnish to the Securities Administrator the
Mortgage Loan data sufficient to prepare the reports described in Section
4.03(a) (other than with respect to the information referred to in clauses
(xix), (xx) and (xxi) of such Section 4.03(a)) which continues unremedied for
a
period of two (2) Business Days after the date upon which written notice of
such
failure shall have been given to such Master Servicer by the Trustee or the
Securities Administrator or to such Master Servicer, the Securities
Administrator and the Trustee by the Holders of not less than 25% of the Class
Principal Amount of each Class of Certificates affected thereby; or
(ii) Any
failure by the Master Servicer to duly perform, within the required time period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 or 9.26; or
(iii) Except
with respect to those items listed in clause (ii) above, any failure by the
Servicer to duly perform, within the required time period, without notice or
grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv) Any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
by the Trustee or the Securities Administrator, or to the Master Servicer,
the
Securities Administrator and the Trustee by the Holders of more than 50% of
the
Aggregate Voting Interests of the Certificates or by any NIMS Insurer;
or
(v) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
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 or unstayed for a period of 60 days or any Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating of
the
Certificates because of the financial condition or loan servicing capability
of
such Master Servicer; or
(vi) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
the
Master Servicer or of or relating to all or substantially all of its property;
or
126
(vii) 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; or
(viii) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
9.27
hereof; or
(ix) If
a
representation or warranty set forth in Section 9.14 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 30 days after the date on which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or the Securities Administrator,
or
to the Master Servicer, the Securities Administrator and the Trustee by the
Holders of more than 50% of the Aggregate Voting Interests of the Certificates
or by any NIMS Insurer; or
(x) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Trustee, any
NIMS Insurer and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(xi) The
Master Servicer has notice or actual knowledge that any Servicer at any time
is
not either a ▇▇▇▇▇▇ ▇▇▇- or ▇▇▇▇▇▇▇ Mac- approved Seller/Servicer, and the
Master Servicer has not terminated the rights and obligations of such Servicer
under the applicable Servicing Agreement and replaced such Servicer with a
▇▇▇▇▇▇ Mae- or ▇▇▇▇▇▇▇ Mac -approved servicer within 60 days of the date the
Master Servicer receives such notice or acquires such actual
knowledge.
(xii) After
receipt of notice from the Trustee, Securities Administrator or any NIMS
Insurer, any failure of the Master Servicer to deposit into the Certificate
Account any payment required to be made for the benefit of Certificateholders
under the terms of this Agreement, including any Advance, on the Business Day
immediately preceding the related Distribution Date which such failure continues
unremedied for a period of one Business Day after the date upon which notice
of
such failure shall have been given to the Master Servicer by the
Trustee.
127
If
an
Event of Default described in clauses (i) through (xii) of this Section shall
occur, then, in each and every case, subject to applicable law, so long as
any
such Event of Default shall not have been remedied within any period of time
prescribed by this Section, the Trustee, by notice in writing to the Master
Servicer (with a copy to the Securities Administrator) may, and shall, if so
directed by Certificateholders evidencing more than 50% of the Class Principal
Amount of each Class of Certificates, terminate all of the rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. If an Event of Default described in clause (xii)
of
this Section shall occur, then, in each and every case, subject to applicable
law,
so long
as such Event of Default shall not have been remedied within the time period
prescribed by clause (xii) of this Section 6.14, the
Trustee, by notice in writing to the Master Servicer (with a copy to the
Securities Administrator), shall promptly terminate all of the rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. On or after the receipt by the Master Servicer of
such
written notice, all authority and power of the Master Servicer, and only in
its
capacity as Master Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee;
provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence there may be
a
transition period, not to exceed 90 days, in order to effect the transfer of
the
Master Servicing obligations to the Trustee. The Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the defaulting Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting Master
Servicer’s responsibilities and rights hereunder as Master Servicer including,
without limitation, notifying Servicers of the assignment of the master
servicing function and providing the Trustee or its designee all documents
and
records in electronic or other form reasonably requested by it to enable the
Trustee or its designee to assume the defaulting Master Servicer’s functions
hereunder and the transfer to the Trustee for administration by it of all
amounts which shall at the time be or should have been deposited by the
defaulting Master Servicer in the Certificate Account and any other account
or
fund maintained with respect to the Certificates or thereafter received with
respect to the Mortgage Loans. The Master Servicer being terminated (or the
Trust Fund, if the Master Servicer is unable to fulfill its obligations
hereunder) as a result of an Event of Default shall bear all reasonable costs
and expenses of a master servicing transfer.
The
Trustee shall be entitled to be reimbursed from the Master Servicer (or by
the
Trust Fund, if the Master Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of master servicing from
the predecessor Master Servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data
and
the completion, correction or manipulation of such servicing data as may be
required by the Trustee to correct any errors or insufficiencies in the master
servicing data or otherwise to enable the Trustee to master service the Mortgage
Loans properly and effectively. If the terminated Master Servicer does not
pay
such reimbursement within thirty (30) days of its receipt of an invoice
therefore, such reimbursement shall be an expense of the Trust and the Trustee
shall be entitled to withdraw such reimbursement from amounts on deposit in
the
Certificate Account pursuant to Section 4.02; provided
that the
terminated Master Servicer shall reimburse the Trust for any such expense
incurred by the Trust; and provided,
further,
that
the Trustee shall decide whether and to what extent it is in the best interest
of the Certificateholders to pursue any remedy against any party obligated
to
make such reimbursement.
128
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02 to the extent such reimbursement relates to the period prior
to
such Master Servicer’s termination.
If
any
Event of Default shall occur, the Trustee, upon a Responsible Officer of the
Trustee becoming aware of the occurrence thereof, shall promptly notify the
Securities Administrator, any NIMS Insurer, the Swap Counterparty, the Cap
Counterparty, and each Rating Agency of the nature and extent of such Event
of
Default.
(b) On
and
after the time the Master Servicer receives a notice of termination from the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28,
the Trustee, unless another master servicer shall have been appointed, shall
be
the successor in all respects to the Master Servicer in its capacity as such
under this Agreement and the transactions set forth or provided for herein
and
shall have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Master Servicer hereunder, including the obligation to make Advances;
provided,
however,
that
any failure to perform such duties or responsibilities caused by the Master
Servicer’s or the Trustee’s failure to provide information required by this
Agreement shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no responsibility for any act or omission
of
the Master Servicer prior to the issuance of any notice of termination. The
Trustee shall have no liability relating to the representations and warranties
of the Master Servicer set forth in Section 9.14. In the Trustee’s capacity as
such successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation therefor, the Trustee shall
be
entitled to receive all compensation payable to the Master Servicer under this
Agreement, including the Master Servicing Fee.
(c) Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint, or appoint on its own behalf any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of all
of
the responsibilities, duties or liabilities of the Master Servicer hereunder.
Any entity designated by the Trustee as a successor master servicer may be
an
Affiliate of the Trustee; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate’s actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of
payments on Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession
and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting the
termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Certificate Account and any other
account or fund maintained with respect to the Certificates or the Lower Tier
REMIC 1 Uncertificated Regular Interests or thereafter be received with respect
to the Mortgage Loans. Neither the Trustee nor any other successor master
servicer shall be deemed to be in default hereunder by reason of any failure
to
make, or any delay in making, any distribution hereunder or any portion thereof
caused by (i) the failure of the Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, (ii) the failure of the Master
Servicer to cooperate as required by this Agreement, (iii) the failure of the
Master Servicer to deliver the Mortgage Loan data to the Securities
Administrator as required by this Agreement or (iv) restrictions imposed by
any
regulatory authority having jurisdiction over the Master Servicer. Neither
the
Trustee nor any other successor master servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by the failure of the
Securities Administrator to deliver, or any delay in delivering cash, documents
or records to it.
129
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of
Default.
|
During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 6.14, shall have the right, in its own name and as trustee of an express
trust, to take all actions now or hereafter existing at law, in equity or by
statute to enforce its rights and remedies and to protect the interests, and
enforce the rights and remedies, of any NIMS Insurer and the Certificateholders
(including the institution and prosecution of all judicial, administrative
and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and
each
and every remedy shall be cumulative and in addition to any other remedy, and
no
delay or omission to exercise any right or remedy shall impair any such right
or
remedy or shall be deemed to be a waiver of any Event of Default.
|
Section
6.16.
|
Waiver
of Defaults.
|
More
than
50% of the Aggregate Voting Interests of Certificateholders (with the consent
of
any NIMS Insurer) may waive any default or Event of Default by the Master
Servicer in the performance of its obligations hereunder, except that a default
in the making of any required deposit to the Certificate Account that would
result in a failure of the Securities Administrator to make any required payment
of principal of or interest on the Certificates may only be waived with the
consent of 100% of the affected Certificateholders and with the consent of
any
NIMS Insurer. Upon any such waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived.
130
|
Section
6.17.
|
Notification
to Holders.
|
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Securities Administrator and the
Certificateholders at their respective addresses appearing on the Certificate
Register, any NIMS Insurer, the Swap Counterparty and the Cap Counterparty.
The
Trustee shall also, within 45 days after the occurrence of any Event of Default
known to a Responsible Officer of the Trustee, give written notice thereof
to
Securities Administrator, any NIMS Insurer and the Certificateholders, unless
such Event of Default shall have been cured or waived prior to the issuance
of
such notice and within such 45-day period.
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
Subject
to the provisions of Section 8.01 hereof, during the continuance of any Event
of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates affected
thereby may, with the consent of any NIMS Insurer, direct the time, method
and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided,
however,
that the
Trustee shall be under no obligation to pursue any such remedy, or to exercise
any of the trusts or powers vested in it by this Agreement (including, without
limitation, (i) the conducting or defending of any administrative action or
litigation hereunder or in relation hereto and (ii) the terminating of the
Master Servicer or any successor master servicer from its rights and duties
as
master servicer hereunder) at the request, order or direction of any of the
Certificateholders or any NIMS Insurer, unless such Certificateholders or any
NIMS Insurer shall have offered to the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which may be incurred therein or
thereby; and, provided further, that, subject to the provisions of Section
8.01,
the Trustee shall have the right to decline to follow any such direction if
the
Trustee, in accordance with an Opinion of Counsel acceptable to any NIMS
Insurer, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which it
is
not indemnified to its satisfaction or be unjustly prejudicial to the
non-assenting Certificateholders.
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
In
the
event that the Trustee or the Securities Administrator shall have actual
knowledge of any action or inaction of the Master Servicer that would become
an
Event of Default upon the Master Servicer’s failure to remedy the same after
notice, the Trustee or the Securities Administrator, as applicable, shall give
notice thereof to the Master Servicer, any NIMS Insurer, the Trustee, the
Securities Administrator, the Swap Counterparty and the Cap Counterparty, as
applicable.
|
Section
6.20.
|
Preparation
of Tax Returns and Other
Reports.
|
(a) The
Securities Administrator shall prepare or cause to be prepared on behalf of
the
Trust Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, and the Securities
Administrator shall file federal tax returns, all in accordance with Article
X
hereof. If the Securities Administrator determines that a state tax return
or
other return is required, then, at its sole expense, the Securities
Administrator shall prepare and file such state income tax returns and such
other returns as may be required by applicable law relating to the Trust Fund,
and, if required by state law, and shall file any other documents to the extent
required by applicable state tax law (to the extent such documents are in the
Securities Administrator’s possession). The Securities Administrator shall
forward copies to the Depositor of all such returns and supplemental tax
information and such other information within the Securities Administrator’s
control as the Depositor may reasonably request in writing. The Securities
Administrator shall furnish to the Trustee, who shall furnish to each
Certificateholder, such forms and such information within the control of the
Securities Administrator as are required by the Code and the REMIC Provisions
to
be furnished to them (other than any Form 1099s). The Master Servicer will
indemnify the Securities Administrator and the Trustee for any liability of
or
assessment against the Securities Administrator and the Trustee, as applicable,
resulting from any error in any of such tax or information returns directly
resulting from errors in the information provided by such Master
Servicer.
131
(b) The
Securities Administrator shall prepare and file with the Internal Revenue
Service (“IRS”), on behalf of the Trust Fund and each of the REMICs specified in
the Preliminary Statement, an application for an employer identification number
on IRS Form SS-4 or by any other acceptable method. The Securities Administrator
shall also file a Form 8811 as required. The Securities Administrator, upon
receipt from the IRS of the Notice of Taxpayer Identification Number Assigned,
shall upon request promptly forward a copy of such notice to the Trustee and
the
Depositor. The Trustee shall have no obligation to verify the information in
any
Form 8811 or Form SS-4 filing.
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, the Securities Administrator shall, in accordance with
industry standards and the rules of the Commission as in effect from time to
time (the “Rules”), prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (“▇▇▇▇▇”), the reports listed in subsections (d)
through (f) of this Section 6.20 in respect of the Trust Fund as and to the
extent required under the Exchange Act.
(d) 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 and a copy
of
each report made available by the Credit Risk Manager pursuant to Section 9.34
(provided each such report is made available to the Securities Administrator
in
a format compatible with ▇▇▇▇▇ filing requirements) 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 determined
and prepared by and at the direction of 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.
132
(ii) As
set
forth on Exhibit P-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the Structured Asset Securities
Corporation Mortgage Loan Trust 2006-BC2 transaction shall be required to
provide to the Securities Administrator and the Depositor, to the extent known
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, and include
with such Additional Form 10-D Disclosure Notification in the form attached
hereto as Exhibit P-4, and (B) 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 Sponsor 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
on 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 Exchange Act Signing Party for
review and approval. If the Master Servicer is the Exchange Act Signing Party
and the Form 10-D includes Additional Form 10-D Disclosure, then the Form 10-D
shall also be electronically distributed to the Depositor for review and
approval. No later than two Business Days prior to the 15th
calendar
day after the related Distribution Date, a duly authorized representative of
the
Exchange Act Signing Party shall sign the Form 10-D and return an electronic
or
fax copy of such signed Form 10-D (with an original executed hard copy to follow
by overnight mail) to the Securities Administrator. 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
(g)(ii) of this Section 6.20. Promptly (but no later than one Business Day)
after filing with the Commission, the Securities Administrator will make
available on its internet website a final executed copy of each Form 10-D filed
by the Securities Administrator. Each party to this Agreement acknowledges
that
the performance by the Securities Administrator of its duties under this Section
6.20(d) related to the timely preparation 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 6.20(d). The Securities Administrator shall
have no liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare and/or timely file such Form 10-D,
where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any 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.
(iv) Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the fifth calendar day after
the related Distribution Date with respect to the filing of a report on Form
10-D if the answer to the questions should be “no.” The Securities Administrator
shall be entitled to rely on such representations in preparing, executing and/or
filing any such report.
133
(e) Reports
Filed on Form 10-K.
(i) Within
90
days after the end of each fiscal year of the Trust Fund 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 and in the related
Servicing Agreements and Custodial Agreement, (A) an annual compliance statement
for each Servicer, each Additional Servicer and the Master Servicer, as
described under Section 9.26 hereof and in each Servicing Agreement, (B)(I)
the
annual reports on assessment of compliance with servicing criteria for each
Servicer, the Custodian, each Additional Servicer, the Master Servicer, the
Credit Risk Manager, any Servicing Function Participant, the Paying Agent and
the Securities Administrator (each, a “Reporting Servicer”), as described under
Section 9.25(a) hereof and in each Servicing Agreement and Custodial Agreement,
and (II) if any Reporting Servicer’s report on assessment of compliance with
servicing criteria described under Section 9.25(a) hereof or in any Servicing
Agreement or Custodial Agreement identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
any
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 9.25(a) hereof or in the any Servicing Agreement or
Custodial Agreement is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, (C)(I) the registered public accounting firm attestation report for
each Reporting Servicer, as described under Section 9.25(b) hereof and in each
Servicing Agreement and Custodial Agreement and (II) if any registered public
accounting firm attestation report described under Section 9.25(b) hereof or
in
any Servicing Agreement or Custodial Agreement identifies any material instance
of noncompliance, disclosure identifying such instance of noncompliance, or
if
any such registered public accounting firm attestation report is not included
as
an exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation why such report is not included, and (D) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification. Any disclosure or information in addition to (A) through (D)
above that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be determined and prepared by and at the direction of 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.
134
(ii) As
set
forth on Exhibit P-2 hereto, no later than March 15 of each year that the Trust
Fund is subject to the Exchange Act reporting requirements, commencing in 2007,
(A) certain parties to the Structured Asset Securities Corporation Mortgage
Loan
Trust 2006-BC2 transaction shall be required to provide to the Securities
Administrator and the Depositor, to the extent known 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, and include with such Additional
Form 10-K Disclosure, an Additional Disclosure Notification in the form attached
hereto as Exhibit P-4, and (B) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Securities Administrator has no duty
under this Agreement to monitor or enforce the performance by the parties listed
on Exhibit P-2 of their duties under this paragraph or proactively solicit
or
procure from such parties any Form 10-K Disclosure Information. The Sponsor
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 on Form 10-K pursuant to this paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Exchange Act Signing Party for
review and approval. If the Master Servicer is the Exchange Act Signing Party
and the Form 10-K includes Additional Form 10-K Disclosure, then the Form 10-K
shall also be electronically distributed to the Depositor for review and
approval. No later than the close of business New York City time on the 4th
Business Day prior to the 10-K Filing Deadline, a duly authorized representative
of the Exchange Act Signing Party shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed
hard
copy to follow by overnight mail) to the Securities Administrator. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Securities Administrator will follow the procedures set forth
in
subsection (g) of this Section 6.20. Promptly (but no later than one Business
Day) after filing with the Commission, the Securities Administrator will make
available on its internet website a final executed copy of each Form 10-K filed
by the Securities Administrator. The parties to this Agreement acknowledge
that
the performance by the Securities Administrator of its duties under this Section
6.20(e) related to the timely preparation 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 6.20(e), Section 9.25(a), Section 9.25(b) and
Section 9.26. The Securities Administrator shall have no liability for any
loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-K, where such failure results from
the
Securities Administrator’s inability or failure to obtain or 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.
135
(iv) Each
Form
10-K shall include the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification. The Securities
Administrator, the Paying Agent and Master Servicer, shall, and the Securities
Administrator, the Paying Agent and the Master Servicer (if applicable) shall
cause any Servicing Function Participant engaged by it to, provide to the Master
Servicer who shall sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the “Certifying
Person”), by March 15 of each year in which the Trust Fund is subject to the
reporting requirements of the Exchange Act (each, a “Back-Up Certification”), in
the form attached hereto as Exhibit Q-1 (or, in the case of (x) the Paying
Agent, such other form as agreed to between the Paying Agent and the Exchange
Act Signing Party, and (y) the Securities Administrator, the form attached
hereto as Exhibit Q-2), 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 Exchange Act Signing
Party shall serve as the Certifying Person on behalf of the Trust Fund. In
the
event the Master Servicer, the Securities Administrator, the Paying Agent or
any
Servicing Function Participant engaged by such parties is terminated or resigns
pursuant to the terms of this Agreement, such party or Servicing Function
Participant shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 6.20(e)(iv) with respect to the period of time it
was
subject to this Agreement.
(v) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal of
such
Person.
(vi) Form
10-K
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report.
(f) Reports
Filed on Form 8-K.
136
(i) Within
four 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
any Form 8-K, as required by the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of 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.
(ii) As
set
forth on Exhibit P-3 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 (A) certain
parties to the Structured Asset Securities Corporation Mortgage Loan Trust
2006-BC2 transaction shall be required to provide to the Securities
Administrator and the Depositor, to the extent known 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, and include with such Form 8-K
Disclosure Information, an Additional Disclosure Notification in the form
attached hereto as Exhibit P-4, and (B) 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 Securities Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
P-3 of their duties under this paragraph or proactively solicit or procure
from
such parties any Form 8-K Disclosure Information. The Sponsor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically, no later than Noon New York City time on the 3rd
Business
Day after the Reportable Event, a copy of the Form 8-K to the Exchange Act
Signing Party for review and approval. If the Master Servicer is the Exchange
Act Signing Party, then the Form 8-K shall also be electronically distributed
to
the Depositor for review and approval. No later than Noon New York City time
on
the 4th
Business
Day after the Reportable Event, a senior officer of the Exchange Act Signing
Party shall sign the Form 8-K and return an electronic or fax copy of such
signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Securities Administrator. If a Form 8-K cannot be filed on time
or
if a previously filed Form 8-K needs to be amended, the Securities Administrator
will follow the procedures set forth in subsection (g) of this Section 6.20.
Promptly (but no later than one Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website a
final
executed copy of each Form 8-K prepared and filed by it pursuant to this Section
6.20(f). The parties to this Agreement acknowledge that the performance by
the
Securities Administrator of its duties under this Section 6.20(f) related to
the
timely preparation 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 6.20(f). The Securities Administrator shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 8-K, where such failure
results from the Securities Administrator’s inability or failure to obtain or
receive, on a timely basis, any information from any 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.
137
(g) Suspension
of Reporting Obligation; Amendments; Late Filings.
(i) On
or
before January 30th
in of
the first year in which the Securities Administrator is able to do so under
applicable law, unless otherwise directed by the Depositor, the Securities
Administrator shall prepare and file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange Act.
(ii) In
the
event that the Securities Administrator becomes aware that it will be 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. 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 with respect to an additional disclosure
item, the Securities Administrator will notify the Depositor and any applicable
party and such parties will cooperate to prepare any necessary 8-K/A, 10-D/A
or
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
shall be signed by a senior officer or a duly authorized representative, as
applicable, of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Securities Administrator of its duties
under this Section 6.20(g) related to the timely preparation 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. The Securities
Administrator shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or timely
file any such Form 15, Form 12b-25 or any amendments to 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.
(h) Any
party
that signs any Exchange Act report that the Securities Administrator is required
to file shall provide to the Securities Administrator prompt notice of the
execution of such Exchange Act report along with the name and contact
information for the person signing such report and shall promptly deliver to
the
Securities Administrator the original executed signature page for such report.
In addition, 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.
138
(i) If
the
Depositor and Master Servicer, at any time, mutually agree to change the
identity of the Exchange Act Signing Party, the Depositor shall provide timely
notice to the Securities Administrator of any such change. Any notice delivered
pursuant to this Section 6.20 may be by fax or electronic copy notwithstanding
the notice provisions of Section 11.07.
|
Section
6.21.
|
Reporting
Requirements of the Commission
|
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor and the
Depositor with the provisions of Regulation AB, as such may be amended or
clarified from time to time. Therefore, each of the parties agrees that (a)
the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish compliance with Regulation AB, (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 and (c) the parties
shall comply with reasonable requests made by the Sponsor, the Depositor or
the
Securities Administrator for delivery of additional or different information,
to
the extent that such information is available or reasonably attainable, as
the
Sponsor, the Depositor or the Securities Administrator may determine in good
faith is necessary to comply with the provisions of Regulation AB.
|
Section
6.22.
|
No
Merger.
|
The
Trustee shall not cause or otherwise knowingly permit the assets of the Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
|
Section
6.23.
|
Indemnification
by the Securities
Administrator.
|
The
Securities Administrator agrees to indemnify the Depositor, the Trustee and
the
Master Servicer, and each of their respective directors, officers, employees
and
agents and the Trust Fund and hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon the engagement of any
Subcontractor in violation of Section 6.01(l) or any failure by the Securities
Administrator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Agreement, including
any report under Sections 6.20, 9.25(a) or (b).
139
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
|
Section
7.01.
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All Mortgage Loans;
Purchase of Lower Tier REMIC 1 Uncertificated Regular
Interests.
|
(a) The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders and the Swap Counterparty as set forth in Section
7.02, the obligation of the Master Servicer to make a final remittance to the
Securities Administrator pursuant to Section 4.01, and the obligations of the
Master Servicer to the Securities Administrator pursuant to Section 9.10 and
to
the Securities Administrator and the Trustee pursuant to Sections 9.14 and
9.31)
shall terminate on the earliest of (i) the final payment or other liquidation
of
the last Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property, (ii) the sale of the property held by the Trust Fund in accordance
with Section 7.01(b) and (iii) the Latest Possible Maturity Date (each, a “Trust
Fund Termination Event”); provided,
however,
that in
no event shall the Trust Fund 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. Upon the occurrence of a Trust Fund Termination
Event, each REMIC shall be terminated in a manner that shall qualify as a
“qualified liquidation” under the REMIC Provisions.
(b) On
any
Distribution Date occurring on or after the Initial Optional Termination Date,
the Master Servicer or LTURI-holder, as applicable, with the prior written
consent of any NIMS Insurer and the Seller, which consent shall not be
unreasonably withheld, has the option to cause the Trust Fund to adopt a plan
of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all of its
property. Upon exercise of such option, the property of the Trust Fund shall
be
sold to the Master Servicer at a price (the “Termination Price”) equal to the
sum of (i) 100% of the unpaid principal balance of each Mortgage Loan on the
day
of such purchase plus interest accrued thereon at the applicable Mortgage Rate
with respect to any Mortgage Loan to the Due Date in the Collection Period
immediately preceding the related Distribution Date to the date of such
repurchase, (ii) the fair market value of any REO Property and any other
property held by any REMIC, such fair market value to be determined by an
independent appraiser or appraisers mutually agreed upon by the Master Servicer,
any NIMS Insurer and the Trustee (reduced, in the case of REO Property, by
(1)
reasonably anticipated disposition costs and (2) any amount by which the fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan plus interest accrued thereon at the applicable Net
Mortgage Rate to the date of such purchase), (iii) any unreimbursed Servicing
Advances and (iv) any Swap Termination Payment payable to the Swap Counterparty
as a result of a termination pursuant to this Section 7.01; provided,
however, if
there
are any NIM Securities outstanding, the Master Servicer may only exercise its
option after receiving the prior written consent of the holders of such NIM
Securities and, if such consent is given, the Termination Price shall also
include an amount equal to the sum of (1) any accrued interest on the NIM
Securities, (2) the unpaid principal balance of any such NIM Securities and
(3)
any other reimbursable expenses owed by the issuer of the NIM Securities (the
“NIM Redemption Amount”). The Master Servicer, each Servicer, the Trustee, the
Securities Administrator and the Custodian shall be reimbursed from the
Termination Price for any Mortgage Loan or related REO Property for any Advances
made or other amounts advanced with respect to the Mortgage Loans that are
reimbursable to any such entity under this Agreement, the applicable Servicing
Agreement or the Custodial Agreement, together with any accrued and unpaid
compensation and any other amounts due to the Master Servicer, the Securities
Administrator or the Trustee hereunder or the Servicers or the Custodian. If
the
Master Servicer fails to exercise its right to cause the Trust Fund to adopt
a
plan of complete liquidation as described above, then the NIMS Insurer may
cause
the Trust Fund to adopt a plan of complete liquidation as described above,
and
(i) the Master Servicer shall cause the Trust Fund to adopt a plan of complete
liquidation as described above, (ii) the NIMS Insurer shall remit the
Termination Price in immediately available funds to the Master Servicer at
least
three Business Days prior to the applicable Distribution Date and, upon receipt
of such funds from the NIMS Insurer, the Master Servicer shall promptly deposit
such funds in the Certificate Account and (iii) upon termination of the Trust
Fund, the Trustee will transfer the property of the Trust Fund to the NIMS
Insurer. The NIMS Insurer shall be obligated to reimburse the Master Servicer
for its reasonable out-of-pocket expenses incurred in connection with its
termination of the Trust Fund and shall indemnify and hold harmless the Master
Servicer for any losses, liabilities or expenses resulting from any claims
directly resulting from or relating to the NIMS Insurer’s termination of the
Trust Fund, except to the extent such losses, liabilities or expenses arise
out
of or result from the Master Servicer’s negligence, bad faith or willful
misconduct.
140
(c) On
any
Distribution Date occurring on or after the Initial Optional Termination Date
and provided there are no NIM Securities outstanding, the Master Servicer,
with
the prior written consent of the Seller, which consent shall not be unreasonably
withheld, has the option to purchase all of the Lower Tier REMIC 1
Uncertificated Regular Interests. Upon exercise of such option, the Lower Tier
REMIC 1 Uncertificated Regular Interests shall be sold to the Master Servicer
at
a price (the “Lower Tier REMIC 1 Uncertificated Regular Interests Purchase
Price”) equal to the sum of (i) 100% of the unpaid principal balance of each
Mortgage Loan on the day of such purchase plus interest accrued thereon at
the
applicable Mortgage Rate with respect to any Mortgage Loan to the Due Date
in
the Collection Period immediately preceding the related Distribution Date to
the
date of such repurchase and (ii) the fair market value of any REO Property
and
any other property held by any REMIC, such fair market value to be determined
by
an independent appraiser or appraisers mutually agreed upon by the Master
Servicer, any NIMS Insurer and the Trustee (reduced, in the case of REO
Property, by (1) reasonably anticipated disposition costs and (2) any amount
by
which the fair market value as so reduced exceeds the outstanding principal
balance of the related Mortgage Loan plus interest accrued thereon at the
applicable Net Mortgage Rate to the date of such purchase). If the Master
Servicer elects to exercise such option, each REMIC created pursuant to this
Agreement (other than REMIC 1) shall be terminated in such a manner so that
the
termination of each such REMIC shall qualify as a “qualified liquidation” under
the REMIC Provisions and the Lower Tier REMIC 1 Uncertificated Regular Interests
and the Class LT-R Certificates will evidence the entire beneficial interest
in
the property of the Trust Fund. Following a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests pursuant to this subsection, the Trust Fund
(and REMIC 1) will remain outstanding and final payment on the Certificates
(other than the Class LT-R Certificates) will be made in accordance with
Sections 7.03(a)(iii) and 5.02. The Trust Fund will terminate upon the
occurrence of a Trust Fund Termination Event, in accordance with Section
7.01(a).
141
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC 1
Uncertificated Regular
Interests.
|
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Lower Tier
REMIC 1 Uncertificated Regular Interests, specifying the Distribution Date
upon
which the final distribution to the Certificates (other than the Class LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests) shall be made, shall be given by the Securities Administrator
by first class mail to Certificateholders mailed promptly (and in no event
later
than five Business Days) (x) after the Securities Administrator has received
notice from the Master Servicer, the NIMS Insurer or the LTURI-holder, as
applicable, of its election to cause (1) the sale of all of the property of
the
Trust Fund pursuant to Section 7.01(b) or (2) the purchase of the Lower Tier
REMIC 1 Uncertificated Regular Interests pursuant to Section 7.01(c), or (y)
upon the final payment or other liquidation of the last Mortgage Loan or REO
Property in the Trust Fund. In the case of a Trust Fund Termination Event,
the
Securities Administrator shall also give notice to the Master Servicer, the
Swap
Counterparty, the Cap Counterparty and the Certificate Registrar at the time
notice is given to Holders.
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution
Date
upon which final distribution on the Certificates or Lower Tier REMIC 1
Uncertificated Regular Interests of all amounts required to be distributed
to
Certificateholders pursuant to Section 5.02 will be made upon presentation
and
surrender of the Certificates at the Corporate Trust Office, and (B) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Securities Administrator therein specified.
Upon
any such Trust Fund Termination Event, the duties of the Certificate Registrar
with respect to the Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests shall terminate and the Securities Administrator shall terminate
the
Certificate Account and any other account or fund maintained with respect to
the
Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests, subject
to
the Securities Administrator’s obligation hereunder to hold all amounts payable
to Certificateholders in trust without interest pending such payment.
In
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests,
such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates (other than the Class LT-R Certificates) of
all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 (other than any distributions to the Class LT-R Certificates in respect
of
REMIC 1) will be made upon presentation and surrender of the Certificates (other
than the Class LT-R Certificates) at the Corporate Trust Office, and (B) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distribution being made only upon presentation and surrender of
the
Certificates (other than the Class LT-R Certificates) at the office or agency
of
the Securities Administrator therein specified. Upon any such purchase of the
Lower Tier REMIC 1 Uncertificated Regular Interests, the duties of the
Certificate Registrar with respect to the Certificates other than the Class
LT-R
Certificate shall terminate but the Securities Administrator shall not terminate
the Certificate Account and any other account or fund maintained with respect
to
the Certificates, subject to the Securities Administrator’s obligation hereunder
to hold all amounts payable to Certificateholders in trust without interest
pending such payment. For all Distribution Dates following the Distribution
Date
on which the Master Servicer purchases the Lower Tier REMIC 1 Uncertificated
Regular Interests, all amounts that would be distributed on the Certificates
(other than the Class LT-R Certificate and exclusive of amounts payable from
any
fund held outside of REMIC 1) absent such purchase shall be payable to the
LTURI-holder.
142
(b) In
the
event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Securities Administrator shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Securities Administrator may take appropriate
steps to contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice
any
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall, subject to applicable state law relating to escheatment,
hold all amounts distributable to such Holders for the benefit of such Holders.
No interest shall accrue on any amount held by the Securities Administrator
and
not distributed to a Certificateholder due to such Certificateholder’s failure
to surrender its Certificate(s) for payment of the final distribution thereon
in
accordance with this Section.
(c) Any
reasonable expenses incurred by the Securities Administrator in connection
with
any Trust Fund Termination Event or any purchase of the Lower Tier REMIC 1
Uncertificated Regular Interests shall be reimbursed from proceeds received
from
such termination or purchase.
|
Section
7.03.
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC
1
Uncertificated Regular
Interests.
|
(a) Any
termination of the Trust Fund pursuant to Section 7.01(a) or any termination
of
a REMIC pursuant to Section 7.01(c) shall be effected in accordance with the
following additional requirements, unless the Securities Administrator seeks
(at
the request of the party exercising the option to purchase all of the Mortgage
Loans or Lower Tier REMIC 1 Uncertificated Regular Interests pursuant to Section
7.01(b) or Section 7.01(c), respectively), and subsequently receives, an Opinion
of Counsel (at the expense of such requesting party), addressed to the
Securities Administrator and any NIMS Insurer to the effect that the failure
to
comply with the requirements of this Section 7.03 will not result in an Adverse
REMIC Event:
(i) Within
89
days prior to the time of the making of the final payment on the Certificates
(other than the Class LT-R Certificates, in the case of a purchase of the Lower
Tier REMIC 1 Uncertificated Regular Interests, upon notification by the Master
Servicer, the Securities Administrator, any NIMS Insurer or an Affiliate of
the
Seller that it intends to exercise its option to cause the termination of the
Trust Fund or purchase the Lower Tier REMIC 1 Uncertificated Regular Interests,
the Securities Administrator shall adopt a plan of complete liquidation on
behalf of each REMIC (other than REMIC 1, in the case of a purchase of the
Lower
Tier REMIC 1 Uncertificated Regular Interests), meeting the requirements of
a
qualified liquidation under the REMIC Provisions;
143
(ii) Any
sale
of the assets of the Trust Fund or the Lower Tier REMIC 1 Uncertificated Regular
Interests pursuant to Section 7.02 shall be a sale for cash and shall occur
at
or after the time of adoption of such a plan of complete liquidation and prior
to the time of making of the final payment on the Certificates (other than
the
Class LT-R Certificates, in the case of a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests);
(iii) On
the
date specified for final payment of the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests), the Securities Administrator shall make final distributions
of principal and interest on such Certificates and shall pay, in the case of
a
Trust Fund Termination Event, any Swap Termination Payment owed to the Swap
Counterparty on the related Swap Payment Date (to the extent not paid on
previous Swap Payment Dates) in accordance with Section 5.02. In the case of
a
Trust Fund Termination Event, and, after payment of, or provision for any
outstanding expenses, the Securities Administrator shall distribute or credit,
or cause to be distributed or credited, to the Holders of the Residual
Certificates all cash on hand after such final payment (other than cash retained
to meet claims), and the Trust Fund (and each REMIC) shall terminate at that
time; and
(iv) In
no
event may the final payment on the Certificates or the final distribution or
credit to the Holders of the Residual Certificates in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date on
which the plan of complete liquidation for such REMIC is adopted.
(b) By
its
acceptance of a Residual Certificate, each Holder thereof hereby agrees to
accept the plan of complete liquidation prepared by the Depositor and adopted
by
the Securities Administrator under this Section and to take such other action
in
connection therewith as may be reasonably requested by the Master Servicer
or
any Servicer.
(c) In
connection with the termination of the Trust Fund, or a Section 7.01(c) Purchase
Event, the Securities Administrator may request an Opinion of Counsel addressed
to the Securities Administrator (at the expense of the Depositor) to the effect
that all the requirements of a qualified liquidation under the REMIC Provisions
have been met.
|
Section
7.04.
|
Optional
Repurchase Right.
|
The
NIMS
Insurer, if any, may repurchase any Distressed Mortgage Loan for a purchase
price equal to the outstanding principal balance of such Mortgage Loan, plus
accrued interest thereon to the date of repurchase plus any unreimbursed
Advances, Servicing Advances or Servicing Fees allocable to such Distressed
Mortgage Loan. Any such repurchase shall be accomplished by the NIMS Insurer’s
remittance of the purchase price for the Distressed Mortgage Loan to the Master
Servicer for deposit into the Certificate Account. The NIMS Insurer shall not
use any procedure in selecting Distressed Mortgage Loans to be repurchased
which
would be materially adverse to Certificateholders.
144
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
(a) The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or 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.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing 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 an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Percentage
Interest) of Certificates of each Class affected thereby shall, with the prior
written consent of any NIMS Insurer, 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 cost, expenses and liabilities to be incurred therein
or
thereby, and the Trustee, for sixty 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 and no direction inconsistent with such written
request has been given the Trustee during such sixty-day period by such
Certificateholders or any NIMS Insurer; it being understood and intended, and
being expressly covenanted by each Certificateholder with every other
Certificateholder, any NIMS Insurer, the Securities Administrator and the
Trustee, that no one or more Holders of Certificates shall have any right in
any
manner whatever by virtue or by availing of any provision of this Agreement
to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates or the rights of any NIMS Insurer, or to obtain or seek to obtain
priority over or preference to any other such Holder or any NIMS Insurer, or
to
enforce any right under this Agreement, except in the manner herein provided
and
for the benefit of all Certificateholders. For the protection and enforcement
of
the provisions of this Section, each and every Certificateholder, the NIMS
Insurer and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
145
|
Section
8.02.
|
Access
to List of Holders.
|
(a) If
the
Trustee is not acting as Certificate Registrar, the Certificate Registrar will
furnish or cause to be furnished to the Trustee and any NIMS Insurer, within
fifteen days after receipt by the Certificate Registrar of a request by the
Trustee or any NIMS Insurer in writing, a list, in such form as the Trustee
may
reasonably require, of the names and addresses of the Certificateholders of
each
Class as of the most recent Record Date.
(b) If
any
NIMS Insurer or three or more Holders or Certificate Owners (hereinafter
referred to as “Applicants”) apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates
and
is accompanied by a copy of the communication which such Applicants propose
to
transmit, then the Trustee shall, within five Business Days after the receipt
of
such application, afford such Applicants reasonable access during the normal
business hours of the Trustee to the most recent list of Certificateholders
held
by the Trustee or shall, as an alternative, send, at the Applicants’ expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
the
Securities Administrator, any NIMS Insurer, the Certificate Registrar and the
Trustee that neither the Depositor, the Master Servicer, the Securities
Administrator, any NIMS Insurer, the Certificate Registrar nor the Trustee
shall
be held accountable by reason of the disclosure of any such information as
to
the names and addresses of the Certificateholders hereunder, regardless of
the
source from which such information was derived.
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee and the Securities Administrator and,
where expressly required herein, to the Master Servicer. Such instrument or
instruments (as the action embodies therein and evidenced thereby) are herein
sometimes referred to as an “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agents shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee, the Securities Administrator and the
Master Servicer, if made in the manner provided in this Section. Each of the
Trustee, the Securities Administrator and the Master Servicer shall promptly
notify the others of receipt of any such instrument by it, and shall promptly
forward a copy of such instrument to the others.
(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
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
146
(c) The
ownership of Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests
(whether or not such Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Trustee) shall be proved
by
the Certificate Register, and none of the Trustee, the Master Servicer, the
Securities Administrator, the NIMS Insurer, or the Depositor shall be affected
by any notice to the contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate or Lower Tier REMIC 1 Uncertificated
Regular Interest shall bind every future Holder of the same Certificate or
Lower
Tier REMIC 1 Uncertificated Regular Interest and the Holder of every Certificate
or Lower Tier REMIC 1 Uncertificated Regular Interest 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
Master Servicer in reliance thereon, whether or not notation of such action
is
made upon such Certificate or Lower Tier REMIC 1 Uncertificated Regular
Interest.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS;
CREDIT
RISK MANAGER
|
Section
9.01.
|
Duties
of the Master Servicer.
|
The
Certificateholders, by their purchase and acceptance of the Certificates or
Lower Tier REMIC 1 Uncertificated Regular Interests, appoint ▇▇▇▇▇ Fargo Bank,
N.A., as Master Servicer. For and on behalf of the Depositor, the Trustee and
the Certificateholders, the Master Servicer shall master service the Mortgage
Loans in accordance with the provisions of this Agreement and the provisions
of
each Servicing Agreement. Notwithstanding anything in this Agreement, any
Servicing Agreement or any Credit Risk Management Agreement to the contrary,
the
Master Servicer shall have no duty or obligation to enforce any Credit Risk
Management Agreement or to supervise, monitor or oversee the activities of
any
Servicer under its Credit Risk Management Agreement with respect to any action
taken or not taken by a Servicer at the direction of the Seller or pursuant
to a
recommendation of the Credit Risk Manager.
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
|
(a) The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer 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
Master Servicer Errors and Omissions Insurance Policy and the Master Servicer
Fidelity Bond shall be in such form and amount that would be consistent with
coverage customarily maintained by master servicers of mortgage loans similar
to
the Mortgage Loans and the Master Servicer shall provide the Trustee and any
NIMS Insurer upon request, with a copy of such policy and fidelity bond. The
Master Servicer shall (i) require each Servicer to maintain an Errors and
Omissions Insurance Policy and a Servicer Fidelity Bond in accordance with
the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer
to
provide to the Master Servicer certificates evidencing that such policy and
bond
is in effect and to furnish to the Master Servicer any notice of cancellation,
non-renewal or modification of the policy or bond received by it, as and to
the
extent provided in the applicable Servicing Agreement, and (iii) furnish copies
of such policies and of the certificates and notices referred to in clause
(ii)
to the Trustee upon request.
147
(b) The
Master Servicer shall promptly report to the Trustee and any NIMS Insurer any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to
the
Trustee and any NIMS Insurer, on request, certificates evidencing that such
bond
and insurance policy are in full force and effect. The Master Servicer shall
promptly report to the Trustee and any NIMS Insurer all cases of embezzlement
or
fraud, if such events involve funds relating to the Mortgage Loans. The total
losses, regardless of whether claims are filed with the applicable insurer
or
surety, shall be disclosed in such reports together with the amount of such
losses covered by insurance. If a bond or insurance claim report is filed with
any of such bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Trustee and any NIMS Insurer. Any amounts
relating to the Mortgage Loans collected by the Master Servicer under any such
bond or policy shall be promptly deposited into the Certificate Account. Any
amounts relating to the Mortgage Loans collected by the applicable Servicer
under any such bond or policy shall be remitted to the Master Servicer to the
extent provided in the applicable Servicing Agreement.
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related
Information.
|
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee, any NIMS Insurer, each Rating Agency and the Depositor a copy of its
annual unaudited financial statements on or prior to March 15 of each year,
beginning March 15, 2007. Such financial statements shall include a balance
sheet, income statement, statement of retained earnings, statement of additional
paid-in capital, statement of changes in financial position and all related
notes and schedules and shall be in comparative form, certified by a nationally
recognized firm of Independent Accountants to the effect that such statements
were examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
|
Section
9.04.
|
Power
to Act; Procedures.
|
148
(a) 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, and each Servicer shall have full power and authority (to
the
extent provided in the applicable Servicing Agreement) to do any and all things
that it may deem necessary or desirable in connection with the servicing and
administration of the Mortgage Loans, including but not limited to the power
and
authority (i) to execute and deliver, on behalf of the Certificateholders and
the Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds
and Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the applicable
Servicing Agreement, as applicable; provided that the Master Servicer shall
not
take, or knowingly permit any Servicer to take, any action that is inconsistent
with or prejudices the interests of the Trust Fund or the Certificateholders
in
any Mortgage Loan or the rights and interests of the Depositor, the Trustee,
the
Certificateholders under this Agreement. The Master Servicer shall represent
and
protect the interests of the Trust Fund in the same manner as it protects its
own interests in mortgage loans in its own portfolio in any claim, proceeding
or
litigation regarding a Mortgage Loan and shall not make or knowingly permit
any
Servicer to make any modification, waiver or amendment of any term of any
Mortgage Loan that would cause an Adverse REMIC Event. Without limiting the
generality of the foregoing, the Master Servicer in its own name or in the
name
of a Servicer, and each Servicer, to the extent such authority is delegated
to
such Servicer under the applicable Servicing Agreement, is hereby authorized
and
empowered by the Trustee when the Master Servicer or such Servicer, as the
case
may be, believes it appropriate in its best judgment and in accordance with
Accepted Servicing Practices and the applicable Servicing Agreement, to execute
and deliver, on behalf of itself and the Certificateholders, the Trustee or
any
of them, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge and all other comparable instruments, with respect
to the Mortgage Loans and with respect to the Mortgaged Properties. The Trustee
shall furnish to the Master Servicer, upon request, with any 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, necessary or appropriate
to
enable the Master Servicer to master service the Mortgage Loans and carry out
its duties hereunder and to allow each Servicer to service the Mortgage Loans,
in each case in accordance with Accepted Servicing Practices (and the Trustee
shall have no liability for misuse of any such powers of attorney by the Master
Servicer or any Servicer). If the Master Servicer or the Trustee has been
advised that it is likely that the laws of the state in which action is to
be
taken prohibit such action if taken in the name of the Trustee or that the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, then upon request of the Trustee
the Master Servicer shall join with the Trustee in the appointment of a
co-trustee pursuant to Section 6.09 hereof. In no event shall the Master
Servicer, without the Trustee’s written consent: (i) initiate any action, suit
or proceeding solely under the Trustee’s name without indicating the Master
Servicer in its applicable, representative capacity, so long as the
jurisdictional and procedural rules will allow for this insertion to occur,
(ii)
initiate any action, suit or proceeding not directly relating to the servicing
of a Mortgage Loan (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Transferor for
breaches of representations and warranties) solely under the Trustee’s name,
(iii) engage counsel to represent the Trustee in any action, suit or proceeding
not directly relating to the servicing of a Mortgage Loan (including but not
limited to actions, suits or proceedings against Certificateholders, or against
the Depositor or the Transferor for breaches of representations and warranties),
or (iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any action with the intent to cause,
and that actually causes, 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.
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 on behalf of the Trust Fund, be deemed
to be the agent of the Trustee.
149
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit any Servicer to, in its discretion (i) waive any late
payment charge (but not any Prepayment Premium, except as set forth below)
and
(ii) extend the due dates for payments due on a Mortgage Note for a period
not
greater than 120 days; provided,
however,
that the
maturity of any Mortgage Loan shall not be extended past the date on which
the
final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date. In the event of any extension described in clause (ii) above, the Master
Servicer shall make or cause such Servicer (if required by the applicable
Servicing Agreement) to make Advances on the related Mortgage Loan in accordance
with the provisions of Section 5.04 on the basis of the amortization schedule
of
such Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master Servicer
shall not make or knowingly permit any modification, waiver or amendment of
any
material term of any Mortgage Loan, unless: (1) such Mortgage Loan is in default
or default by the related Mortgagor is, in the reasonable judgment of the Master
Servicer or the related Servicer, reasonably foreseeable, (2) in the case of
a
waiver of a Prepayment Premium, (a) such Mortgage Loan is in default or default
by the related Mortgagor is, in the reasonable judgment of the Master Servicer
or the related Servicer, reasonably foreseeable and such waiver would maximize
recovery of total proceeds taking into account the value of such Prepayment
Premium and the related Mortgage Loan or (b) if the prepayment is not the result
of a refinance by the Servicer or any of its affiliates and (i) such Mortgage
Loan is in default or default by the related Mortgagor is, in the reasonable
judgment of the Master Servicer or the related Servicer, reasonably foreseeable
and such waiver would maximize recovery of total proceeds taking into account
the value of such Prepayment Premium and the related Mortgage Loan or (ii)
the
collection of the Prepayment Premium would be in violation of applicable law
or
(iii) the collection of such Prepayment Premium would be considered “predatory”
pursuant to written guidance published or issued by any applicable federal,
state or local regulatory authority acting in its official capacity and having
jurisdiction over such matters and (3) the Master Servicer shall have provided
or caused to be provided to the Trustee an Opinion of Counsel addressed to
the
Trustee (which opinion shall, if provided by the Master Servicer, be an expense
reimbursed from the Certificate Account pursuant to Section 4.02(v)) to the
effect that such modification, waiver or amendment would not result in an
Adverse REMIC Event; provided, in no event shall an Opinion of Counsel be
required for the waiver of a Prepayment Premium under clause (2)
above.
150
|
Section
9.05.
|
Enforcement
of Servicer’s and Master Servicer’s
Obligations.
|
(a) Each
Servicing Agreement requires the applicable Servicer, respectively, to service
the Mortgage Loans in accordance with the provisions thereof. References in
this
Agreement to actions taken or to be taken by the Master Servicer include actions
taken or to be taken by a Servicer on behalf of the Master Servicer. Any fees
and other amounts payable to a Servicer shall be deducted from amounts remitted
to the Master Servicer by such Servicer (to the extent permitted by the
applicable Servicing Agreement) and shall not be an obligation of the Trust
Fund, the Trustee or the Master Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect to
the
servicing of any Mortgage Loan that the related Servicer is not required to
take
under the related Servicing Agreement and (ii) cause a Servicer to take any
action or refrain from taking any action if the related Servicing Agreement
does
not require such Servicer to take such action or refrain from taking such
action; in both cases notwithstanding any provision of this Agreement that
requires the Master Servicer to take such action or cause such Servicer to
take
such action.
(c) The
Master Servicer, for the benefit of the Trustee, any NIMS Insurer and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails
to
perform its obligations in accordance therewith, terminate the rights and
obligations of such Servicer thereunder and either act as servicer of the
related Mortgage Loans or cause the other parties hereto to enter into a
Servicing Agreement (and such parties hereby agree to execute and deliver any
such successor Servicing Agreement), with a 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, and shall be reimbursed
therefor initially (i) from a general recovery resulting from such enforcement
only to the extent, if any, that such recovery exceeds all amounts due in
respect of the related Mortgage Loans, (ii) from a specific recovery of costs,
expenses or attorneys’ fees against the party against whom such enforcement is
directed, and then, (iii) to the extent that such amounts are insufficient
to
reimburse the Master Servicer for the costs of such enforcement, from the
Certificate Account.
(d) The
Master Servicer shall be entitled to conclusively rely on any certifications,
reports or other information provided by the Servicers under the terms of the
applicable Servicing Agreement, in its preparation of any certifications,
filings or reports, in accordance with the terms hereof or as may be required
by
applicable law or regulation.
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar
Items.
|
(a) To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
cause each Servicer to establish and maintain one or more custodial accounts
at
a depository institution (which may be a depository institution with which
the
Master Servicer or any Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and to deposit therein
any collections of amounts received with respect to amounts due for taxes,
assessments, water rates, standard hazard insurance policy premiums, Payaheads,
if applicable, or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have
been
escrowed for such purpose) only in accordance with the applicable Servicing
Agreement. Each Servicer shall be entitled to all investment income not required
to be paid to Mortgagors on any Escrow Account maintained by such Servicer.
The
Master Servicer shall make (or cause to be made) to the extent provided in
the
applicable Servicing Agreement advances to the extent necessary in order to
effect timely payment of taxes, water rates, assessments, standard hazard
insurance policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails, to
pay
such items), provided that it or the applicable Servicer has determined that
the
funds so advanced are recoverable from escrow payments, reimbursement pursuant
to Section 4.02 or otherwise.
151
(b) Costs
incurred by the Master Servicer or by any Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note 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. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable as a Servicing Advance by the Master Servicer
pursuant to Section 4.02.
|
Section
9.07.
|
Termination
of Servicing Agreements; Successor
Servicers.
|
(a) The
Master Servicer shall be entitled to terminate the rights and obligations of
any
Servicer under the applicable Servicing Agreement in accordance with the terms
and conditions of such Servicing Agreement and without any limitation by virtue
of this Agreement; provided,
however,
that in
the event of termination of any Servicing Agreement by the Master Servicer,
the
Master Servicer shall provide for the servicing of the Mortgage Loans by a
successor Servicer to be appointed as provided in the applicable Servicing
Agreement.
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer of
servicing to a successor Servicer. The Master Servicer shall be entitled to
be
reimbursed from each Servicer (or by the Trust Fund, if the Servicer is unable
to fulfill its obligations hereunder) for all costs associated with the transfer
of servicing from the predecessor servicer, including without limitation, any
costs or expenses associated with the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data, as may
be
required by the Master Servicer to correct any errors or insufficiencies in
the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
(b) If
the
Master Servicer acts as a successor Servicer, it will not assume liability
for
the representations and warranties of a Servicer, if any, that it replaces.
The
Master Servicer shall use reasonable efforts to have the successor Servicer
assume liability for the representations and warranties made by the terminated
Servicer in the related Servicing Agreement, and in the event of any such
assumption by the successor Servicer, the Trustee or the Master Servicer, as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
152
(c) If
the
Master Servicer acts as a successor Servicer, it will have the same obligations
to make Advances as the Servicer under the related Servicing Agreement and
to
reimburse the successor Servicer for unreimbursed Advances if required by the
Servicing Agreement but will have no obligation to make an Advance if it
determines in its reasonable judgment that such Advance is non-recoverable.
To
the extent that the Master Servicer is unable to find a successor Servicer
that
is willing to service the Mortgage Loans for the Servicing Fee because of the
obligation of the Servicer to make Advances regardless of whether such Advance
is recoverable, the applicable Servicing Agreement may be amended to provide
that the successor Servicer shall have no obligation to make an Advance if
it
determines in its reasonable judgment that such Advance is non-recoverable
and
provides an Officer’s Certificate to such effect to the Master Servicer, the
Trustee and the NIMS Insurer.
|
Section
9.08.
|
Master
Servicer Liable for
Enforcement.
|
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee, any NIMS Insurer and the Certificateholders in accordance with
the provisions of this Agreement, to the extent of its obligations hereunder,
without diminution of such obligation or liability by virtue of such Servicing
Agreements. The Master Servicer shall use commercially reasonable efforts to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce the
provisions of each Servicing Agreement for the benefit of the Certificateholders
and any NIMS Insurer. The Master Servicer shall be entitled to enter into any
agreement with any Servicer for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall
have no liability for the acts or omissions of any Servicer in the performance
by such Servicer of its obligations under the related Servicing
Agreement.
|
Section
9.09.
|
No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
|
Any
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving any Servicer in its capacity
as such and not as an originator shall be deemed to be between such Servicer,
the Seller and the Master Servicer, and the Trustee, any NIMS Insurer and the
Depositor shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to such Servicer except as set forth in
Section 9.10 hereof, but shall have rights thereunder as third party
beneficiaries. It is furthermore understood and agreed by the parties hereto
that the obligations of any Servicer are set forth in their entirety in such
Servicer’s related Servicing Agreement and such Servicer has no obligations
under and is not otherwise bound by the terms of this Agreement.
153
|
Section
9.10.
|
Assumption
of Servicing Agreement by Securities
Administrator.
|
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), the Trustee
shall thereupon assume all of the rights and obligations of such Master Servicer
hereunder and under each Servicing Agreement entered into with respect to the
Mortgage Loans. The Trustee, its designee or any successor master servicer
appointed by the Trustee shall be deemed to have assumed all of the Master
Servicer’s interest herein and therein to the same extent as if such Servicing
Agreement had been assigned to the assuming party, except that the Master
Servicer shall not thereby be relieved of any liability or obligations of the
Master Servicer under such Servicing Agreement accruing prior to its replacement
as Master Servicer, and shall be liable to the Trustee and any NIMS Insurer,
and
hereby agrees to indemnify and hold harmless the Trustee and any NIMS Insurer
from and against all costs, damages, expenses and liabilities (including
reasonable attorneys’ fees) incurred by the Trustee or any NIMS Insurer as a
result of such liability or obligations of the Master Servicer and in connection
with the Trustee’s assumption (but not its performance, except to the extent
that costs or liability of the Trustee are created or increased as a result
of
negligent or wrongful acts or omissions of the Master Servicer prior to its
replacement as Master Servicer) of the Master Servicer’s obligations, duties or
responsibilities thereunder.
(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer, deliver to the assuming party all
documents and records relating to each Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
each Servicing Agreement to the assuming party.
|
Section
9.11.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the related Servicer 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
9.12.
|
Release
of Mortgage Files.
|
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Master Servicer of a notification that payment in full has been or will
be escrowed in a manner customary for such purposes, the Master Servicer will,
or will cause the related Servicer to, promptly notify the Trustee (or the
Custodian) and the Securities Administrator by a certification (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
Certificate Account have been or will be so deposited) of a Servicing Officer
and shall request (on the form attached hereto as Exhibit C or on the form
attached to the related Custodial Agreement) the Trustee or the Custodian,
to
deliver to the applicable Servicer the related Mortgage File. Upon receipt
of
such certification and request, the Trustee or the Custodian (with the consent,
and at the direction of the Trustee), shall promptly release the related
Mortgage File to the applicable Servicer and the Trustee shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in
full,
the Master Servicer is authorized, and each Servicer, to the extent such
authority is provided for under the applicable Servicing Agreement, 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 Certificate
Account.
154
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by the Master Servicer, or by a Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Trustee or the Custodian, shall, upon request of
the
Master Servicer, or of a Servicer, and delivery to the Trustee or the Custodian,
of a request for release of documents and a receipt signed by a Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File held in its possession or control to the Master Servicer (or the applicable
Servicer). Such receipt shall obligate the Master Servicer or Servicer to return
the Mortgage File to the Trustee or the Custodian, as applicable, when the
need
therefor by the Master Servicer or 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 receipt shall
be
released by the Trustee or the Custodian, as applicable, to the Master Servicer
(or the applicable Servicer).
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
(a) The
Master Servicer shall transmit, or cause the applicable Servicer to transmit,
to
the Trustee 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 of the applicable Servicing Agreement to be delivered to the Trustee
or the 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 a Servicer as Liquidation Proceeds or Insurance Proceeds in respect
of any Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer’s right to retain or withdraw
from the Certificate Account the Master Servicing Fee and other amounts provided
in this Agreement and to the right of each Servicer to retain its Servicing
Fee
and other amounts as provided in the related Servicing Agreement. The Master
Servicer shall, and shall (to the extent provided in the applicable Servicing
Agreement) cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, any NIMS Insurer,
their respective 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.
155
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or any Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer, or by any Servicer,
for and on behalf of the Trustee and the Certificateholders and shall be and
remain the sole and exclusive property of the Trustee; provided,
however,
that the
Master Servicer and each Servicer shall be entitled to setoff against, and
deduct from, any such funds any amounts that are properly due and payable to
the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement and shall be authorized to remit such funds to the
Securities Administrator in accordance with this Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution of
this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Seller
to
the Depositor not to constitute a sale, the Trustee shall have a security
interest in the Mortgage Loans and in all Mortgage Files representing such
Mortgage Loans and in all funds and investment property now or hereafter held
by, or under the control of, a Servicer or the Master Servicer that are
collected by any Servicer or the Master Servicer in connection with the Mortgage
Loans, whether as scheduled installments of principal and interest or as full
or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a Servicer
is entitled under the applicable Servicing Agreement, or the Master Servicer
or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so
long as the Mortgage Loans are assigned to and held by the Trustee or the
Custodian, all documents or instruments constituting part of the Mortgage Files,
and such funds relating to the Mortgage Loans which come into the possession
or
custody of, or which are subject to the control of, the Master Servicer or
any
Servicer shall be held by the Master Servicer or such Servicer for and on behalf
of the Trustee as the Trustee’s agent and bailee for purposes of perfecting the
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other applicable laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize any Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Certificate Account, or any
funds that otherwise are or may become due or payable to the Trustee, to any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
156
|
Section
9.14.
|
Representations
and Warranties of the Master
Servicer.
|
(a) The
Master Servicer hereby represents and warrants to the Depositor, any NIMS
Insurer, the Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it
is
validly existing and in good standing under the laws of the state of its
incorporation, and as Master Servicer has full power and authority to transact
any and all business contemplated by this Agreement and to execute, deliver
and
comply with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A) violate
the Master Servicer’s charter or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C) constitute
a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party or by
which it is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master Servicer’s
ability to perform its obligations under this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
157
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is the
servicing of conventional residential mortgage loans, is a ▇▇▇▇▇▇ ▇▇▇- or
▇▇▇▇▇▇▇ Mac-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and a
Fidelity Bond in accordance with Section 9.02 each of which is in full force
and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Offering Documents relating to the Master Servicer does not include an
untrue statement of a material fact and does not omit to state a material fact,
with respect to the statements made, necessary in order to make the statements
in light of the circumstances under which they were made not
misleading.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 9.14 shall survive the execution and delivery of this Agreement. The
Master Servicer shall indemnify the Depositor, the Trustee and any NIMS Insurer
and hold them harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Master Servicer’s representations and warranties
contained in Section 9.14(a). It is understood and agreed that the enforcement
of the obligation of the Master Servicer set forth in this Section to indemnify
the Depositor, the Trustee and any NIMS Insurer as provided in this Section
constitutes the sole remedy (other than as set forth in Section 6.14) of the
Depositor, the Trustee and any NIMS Insurer, respecting a breach of the
foregoing representations and warranties. Such indemnification shall survive
any
termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by any of the Depositor, the Master Servicer, the
Trustee or any NIMS Insurer or notice thereof by any one of such parties to
the
other parties.
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold each harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a)(i) through (vi) hereof. It is understood and
agreed that the enforcement of the obligation of the Depositor set forth in
this
Section to indemnify the Master Servicer as provided in this Section constitutes
the sole remedy hereunder of the Master Servicer respecting a breach by the
Depositor of the representations and warranties in Sections 2.03(a)(i) through
(vi) hereof.
158
(d) Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by either the Depositor, the Master Servicer, the
Trustee or any NIMS Insurer or notice thereof by any one of such parties to
the
other parties. Notwithstanding anything in this Agreement to the contrary,
the
Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to, lost
profits);
provided, however,
that
this Subsection 9.14(d) shall not apply in connection with any failure by the
Master Servicer to comply with the provisions of Sections 9.25 and 9.26
hereof.
|
Section
9.15.
|
Opinion.
|
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Seller, the Trustee and any NIMS Insurer one or more Opinions
of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the Depositor and ▇▇▇▇▇▇ Brothers Inc., as to the due authorization,
execution and delivery of this Agreement by the Master Servicer and the
enforceability thereof.
|
Section
9.16.
|
Standard
Hazard and Flood Insurance
Policies.
|
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by each Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
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.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or any Servicing Agreement (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 Certificate Account, subject to withdrawal pursuant to
Section 4.02. 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.
159
|
Section
9.17.
|
Presentment
of Claims and Collection of
Proceeds.
|
The
Master Servicer shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the Trustee
and the Certificateholders all claims under the Insurance Policies with respect
to the Mortgage Loans, 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 or bonds shall be promptly deposited in the
Certificate Account or the Custodial 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 requisite 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
9.18.
|
Maintenance
of the Primary Mortgage Insurance
Policies.
|
(a) The
Master Servicer shall remit on behalf of each Servicer to the PMI Insurers,
the
applicable PMI Insurance Premiums and provide monthly Mortgage Loan balance
updates to the related PMI Insurers.. The Master Servicer shall not take, or
knowingly permit any Servicer (consistent with the applicable Servicing
Agreement) to take, any action that would result in noncoverage under any
applicable Primary Mortgage Insurance Policy of any loss which, but for the
actions of such Master Servicer or such Servicer, would have been covered
thereunder. The Master Servicer shall not, and shall not knowingly permit any
Servicer to, cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in effect at the date of the initial issuance of the Certificates
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 the extent provided in each Servicing Agreement,
to
cause each Servicer to present, on behalf of the Trustee and the
Certificateholders, claims to the insurer under any Primary Mortgage Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Mortgage Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Section 4.01, any amounts
collected by the Master Servicer or any Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the Certificate Account, subject to
withdrawal pursuant to Section 4.02.
|
Section
9.19.
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
The
Trustee (or the Custodian on behalf of the Trustee) shall retain possession
and
custody of the originals of the Primary Mortgage Insurance Policies or
certificate of insurance if applicable and any certificates of renewal as to
the
foregoing as may be issued from time to time as contemplated by this Agreement.
Until all amounts distributable in respect of the Certificates have been
distributed in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Trustee (or the Custodian) shall also
retain possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions of this Agreement. The Master Servicer
shall
promptly deliver or cause each Servicer to deliver to the Trustee (or the
Custodian), upon the execution or receipt thereof the originals of the Primary
Mortgage Insurance Policies and any certificates of renewal thereof, and such
other documents or instruments that constitute portions of the Mortgage File
that come into the possession of the Master Servicer or any Servicer from time
to time.
160
|
Section
9.20.
|
[Reserved]
|
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
The
Master Servicer shall be entitled to withdraw from the Certificate Account,
subject to Section 5.05, the Master Servicing Fee to the extent permitted by
Section 4.02. Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise (but not including
any
Prepayment Premium) shall be retained by the applicable Servicer (or the Master
Servicer, in the event it is acting as successor servicer for the related
Mortgage Loans) and shall not be deposited in the Certificate 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. Pursuant to
Sections 4.01(e), all income and gain realized from any investment of funds
in
the Certificate Account, other than the amount of any Master Servicing Fee,
shall be remitted to LBH on each Distribution Date. The provisions of this
Section 9.21 are subject to the provisions of Section 6.14.
|
Section
9.22.
|
REO
Property.
|
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or cause the applicable Servicer,
to the extent provided in the applicable Servicing Agreement any REO Property
as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all events
within the time period, and subject to the conditions set forth in Article
X
hereof. Pursuant to its efforts to sell such REO Property, the Master Servicer
shall protect and conserve, or cause the applicable Servicer to protect and
conserve, such REO Property in the manner and to such extent required by the
applicable Servicing Agreement, subject to Article X hereof.
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from any Servicer, in connection with the operation
of any REO Property in the Certificate Account.
(c) The
Master Servicer and each 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
(without
limitation of any other right of reimbursement that the Master Servicer or
any
Servicer shall have hereunder) 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) 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 Certificate Account on or prior to the Determination
Date in the month following receipt thereof.
161
|
Section
9.23.
|
Notices
to the Depositor and the Securities
Administrator
|
(a) The
Master Servicer shall promptly notify the Securities Administrator, the Sponsor
and the Depositor (i) of any legal proceedings pending against the Master
Servicer of the type described in Item 1117 (§ 229.1117) of Regulation AB and
(ii) if the Master Servicer shall become (but only to the extent not previously
disclosed to the Master Servicer and the Depositor) at any time an affiliate
of
any of the parties listed on Exhibit V to this Agreement. On or before March
1st
of each
year, the Depositor shall distribute the information in Exhibit V to the Master
Servicer.
(b) Not
later
than four Business Days prior to the Distribution Date of each month, the Master
Servicer shall provide to the Securities Administrator, the Sponsor and the
Depositor notice of the occurrence of any material modifications, extensions
or
waivers of terms, fees, penalties or payments relating to the Mortgage Loans
during the related Collection Period or that have cumulatively become material
over time (Item 1121(a)(11) of Regulation AB) along with all information, data,
and materials related thereto as may be required to be included in the related
Distribution Report on Form 10-D. The parties to this Agreement acknowledge
that
the performance by the Master Servicer of its duties under this Section 9.23(b)
related to the timely preparation and delivery of such information is contingent
upon each applicable Servicer strictly observing all requirements and deadlines
in the performance of their duties under their related Servicing Agreements.
The
Master Servicer shall have no liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare and/or timely
deliver all such information where such failure results from the Master
Servicer’s inability or failure to obtain or receive, on a timely basis, any
information from any Servicer needed to prepare or deliver such information,
which failure does not result from the Master Servicer’s own negligence, bad
faith or willful misconduct.
|
Section
9.24.
|
Reports
to the Trustee.
|
(a) Not
later
than 30 days after each Distribution Date, the Master Servicer shall, upon
request, forward to the Trustee and Securities Administrator a statement, deemed
to have been certified by a Servicing Officer, setting forth the status of
the
Certificate Account as of the close of business on the related Distribution
Date, indicating that all distributions required by this Agreement to be made
by
the Master Servicer have been made (or if any required distribution has not
been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Certificate Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer,
upon request, to the Depositor, Attention: Contract Finance, any NIMS Insurer
and any Certificateholders (or by the Trustee at the Master Servicer’s expense
if the Master Servicer shall fail to provide such copies to the
Certificateholders (unless (i) the Master Servicer shall have failed to provide
the Trustee with such statement or (ii) the Trustee shall be unaware of the
Master Servicer’s failure to provide such statement)).
162
(b) Not
later
than the 15th day of each month (or if such date is not a Business Day, the
first Business Day immediately thereafter), the Master Servicer shall deliver
to
the Mortgage Loan Administrator and to one additional Person designated by
the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions, “loan
level” information with respect to the Mortgage Loans (other than for any
Mortgage Loans serviced by Countrywide Home Loans Servicing LP) for the related
Collection Period, to the extent that such information has been provided to
the
Master Servicer by the Servicers or by the Depositor. Not later than two
Business Days prior to each Distribution Date, the Master Servicer shall deliver
to the Mortgage Loan Administrator and to one additional Person designated
by
the Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions, “loan
level” information with respect to Mortgage Loans serviced by Countrywide Home
Loans Servicing LP for the related Collection Period, to the extent that such
information has been provided to the Master Servicer by Countrywide Home Loans
Servicing LP or by the Depositor. The Master Servicer’s obligations under this
Section 9.24(b) shall terminate after providing the loan level information
due
on September 15, 2006.
(c) All
information, reports and statements prepared by the Master Servicer under this
Agreement shall be based on information supplied to the Master Servicer by
the
Servicers without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
|
Section
9.25.
|
Assessment
of Compliance and Attestation
Reports.
|
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2007, the Master Servicer, the Credit
Risk
Manager, the Paying Agent 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, each at its own expense, to the Sponsor,
the Depositor, the Master Servicer and the Securities Administrator, 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 6.20(e), 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.
(ii) When
the
Master Servicer, the Credit Risk Manager, the Paying Agent and the Securities
Administrator (or any Servicing Function Participant engaged by it) 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 9.25) of each Servicing Function Participant engaged by it and shall
indicate to the Securities Administrator what Relevant Servicing Criteria will
be addressed in any such reports prepared by any such Servicing Function
Participant.
163
(iii) Promptly
after receipt of each report on assessment of compliance, the Securities
Administrator shall confirm that the assessments, taken as a whole, address
all
applicable Servicing Criteria and taken individually address the Relevant
Servicing Criteria (and disclose the inapplicability of the Servicing Criteria
not determined to be Relevant Criteria) for each party as set forth on Exhibit
S
and on any similar exhibit set forth in each Servicing Agreement in respect
of
each Servicer, and the Custodial Agreement in respect of the Custodian, and
shall notify the Depositor of any exceptions.
(b) Attestation
Reports
(i) By
March
15 of each year, commencing in March 2007, the Master Servicer, the Credit
Risk
Manager, the Paying Agent and the Securities Administrator, 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 Credit Risk Manager, the Paying Agent and the Securities Administrator,
as
the case may be) that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Sponsor, the Depositor, the Master
Servicer and the Securities Administrator, to the effect that (A) 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 (B) 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.
(ii) Promptly
after receipt of such report from the Master Servicer, the Credit Risk Manager,
the Paying Agent, the Securities Administrator or any Servicing Function
Participant engaged by such parties, the Securities Administrator shall confirm
that each assessment submitted pursuant subsection (a) of this Section 9.25
is
coupled with an attestation meeting the requirements of this Section and notify
the Depositor of any exceptions.
(c) The
Paying Agent’s obligation to provide assessments of compliance and attestations
under this Section 9.25 shall terminate upon the filing of a Form 15 suspension
notice on behalf of the Trust Fund. Notwithstanding the foregoing after the
occurrence of such event and provided the Depositor is not otherwise provided
with such reports or copies of such reports, the Paying Agent shall be obligated
to provide a copy of such reports by March 15 of each year to the
Depositor.
164
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing
Criteria.
|
The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Securities Administrator on or before March 15 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, 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, 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.
|
Section
9.27.
|
Merger
or Consolidation.
|
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided,
however,
that the
successor or resulting Person to the Master Servicer shall be a Person that
shall be qualified and approved to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac and shall have a net worth of not less than
$15,000,000.
|
Section
9.28.
|
Resignation
of Master Servicer.
|
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer shall
not resign from the obligations and duties hereby imposed on it unless it
determines that the Master Servicer’s duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it and cannot be cured. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee and any NIMS Insurer. No such resignation shall become
effective until the Trustee shall have assumed, or a successor master servicer
acceptable to any NIMS Insurer and the Trustee shall have been appointed by
the
Trustee and until such successor shall have assumed, the Master Servicer’s
responsibilities and obligations under this Agreement. Notice of such
resignation shall be given promptly by the Master Servicer and the Depositor
to
the Trustee, the Securities Administrator and any NIMS Insurer.
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master
Servicer.
|
(a) Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, Subcontractor
or other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; provided,
however,
that the
Master Servicer shall have the right without the prior written consent of the
Trustee, any NIMS Insurer or the Depositor to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such
permitted assignment, and the name of any such affiliated Subcontractor or
Subservicer shall be given promptly by the Master Servicer to the Depositor,
the
Trustee, the Securities Administrator and any NIMS Insurer. If, pursuant to
any
provision hereof, the duties of the Master Servicer are transferred to a
successor master servicer, the entire amount of the Master Servicing Fees and
other compensation payable to the Master Servicer pursuant hereto, including
amounts payable to or permitted to be retained or withdrawn by the Master
Servicer pursuant to Section 9.21 hereof, shall thereafter be payable to such
successor master servicer.
165
(b) Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Master Servicer
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB without (a) giving notice to the
Securities Administrator and the Depositor and (b) requiring any such
Subcontractor to provide to the Master Servicer an attestation report as
provided for in Section 9.25 and an assessment report as provided in Section
9.26, which reports the Master Servicer shall include in its attestation and
assessment reports.
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and
Others.
|
(a) The
Master Servicer undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to act
or
its own willful misconduct; provided, however, that the duties and obligations
of the Master Servicer shall be determined solely by the express provisions
of
this Agreement, the Master Servicer shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement; no implied covenants or obligations shall be read into this Agreement
against the Master Servicer and, in absence of bad faith on the part of the
Master Servicer, the Master Servicer 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 Master Servicer and conforming to
the
requirements of this Agreement.
(c) None
of
the Master Servicer, the Seller or the Depositor or any of the directors,
officers, employees or agents of any of them shall be under any liability to
the
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect the Master
Servicer, the Seller or the Depositor or any such person against any liability
that would otherwise be imposed by reason of willful misfeasance, bad faith
or
negligence in its performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and
any
director, officer, employee or agent of any of them shall be entitled to
indemnification by the Trust Fund and will be held harmless against any loss,
liability or expense incurred in connection with any legal action relating
to
this Agreement or the Certificates other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of reckless disregard of his
or
its obligations and duties hereunder. The Master Servicer, the Seller and the
Depositor and any director, officer, employee or agent of any of them may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Master
Servicer, the Seller and the Depositor shall be under no obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties
to
master service the Mortgage Loans in accordance with this Agreement and that
in
its opinion may involve it in any expenses or liability; provided, however,
that
the Master Servicer may in its sole discretion undertake any such action that
it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Certificate Account as provided by Section 4.02.
166
The
Master Servicer shall not be liable for any acts or omissions of any Servicer.
In particular, the Master Servicer shall not be liable for any course of action
taken by the Servicers with respect to loss mitigation of defaulted Mortgage
Loans at the direction of the Credit Risk Manager or the Seller pursuant to
any
Credit Risk Management Agreement. Further, the Master Servicer shall not be
liable for performance by any Servicer under any Credit Risk Management
Agreement.
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Trustee
and
any NIMS Insurer and their respective officers, directors, agents and
affiliates, and hold each of them harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Sponsor, the Trustee or any NIMS Insurer may sustain as a result of (a)
any
material breach by the Master Servicer of any if its obligations hereunder,
including particularly its obligations to provide any reports under Section
9.25(a), Section 9.25(b) or Section 9.26 or any information, data or materials
required to be included in any Exchange Act report, (b) any material
misstatement or omission in any information, data or materials provided by
the
Master Servicer, or (c) the negligence, bad faith or willful misconduct of
the
Master Servicer in connection with its performance hereunder. The Depositor,
the
Sponsor, the Trustee and any NIMS Insurer shall immediately notify the Master
Servicer if a claim is made by a third party with respect to this Agreement
or
the Mortgage Loans entitling the Depositor, the Sponsor, the Trustee or any
NIMS
Insurer to indemnification hereunder, whereupon the Master Servicer shall assume
the defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or them in respect of such claim. This
indemnification shall survive the termination of this Agreement or the
termination of the Master Servicer as a party to this Agreement.
167
|
Section
9.32.
|
Special
Servicing of Delinquent Mortgage
Loans.
|
If
permitted under the terms of the applicable Servicing Agreement, the Seller
may
appoint, pursuant to the terms of the applicable Servicing Agreement and with
the written consent of the Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any NIMS Insurer, a special servicer to special
service any Distressed Mortgage Loans. Any applicable termination fee related
to
the termination of the related Servicer and the appointment of any special
servicer shall be paid by the Seller from its own funds, without right of
reimbursement from the Trust Fund. Any fees paid to any such special servicer
shall not exceed the Servicing Fee Rate.
|
Section
9.33.
|
Alternative
Index.
|
In
the
event that the Index for any Mortgage Loan, as specified in the related Mortgage
Note, becomes unavailable for any reason, the Master Servicer shall select
an
alternative index, which in all cases shall be an index that constitutes a
qualified rate on a regular interest under the REMIC Provisions, in accordance
with the terms of such Mortgage Note or, if such Mortgage Note does not make
provision for the selection of an alternative index in such event, the Master
Servicer shall, subject to applicable law, select an alternative index based
on
information comparable to that used in connection with the original Index and,
in either case, such alternative index shall thereafter be the Index for such
Mortgage Loan.
|
Section
9.34.
|
Duties
of the Credit Risk Manager.
|
(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint ▇▇▇▇▇▇▇ Fixed Income Services Inc., formerly known as The Murrayhill
Company, as Credit Risk Manager. For and on behalf of the Depositor, the Credit
Risk Manager will provide reports and recommendations concerning certain
delinquent and defaulted Mortgage Loans, and as to the collection of any
Prepayment Premiums with respect to the Mortgage Loans. Such reports and
recommendations will be based upon information provided pursuant to Credit
Risk
Management Agreements to the Credit Risk Manager by the Servicers. The Credit
Risk Manager shall look solely to the Servicers and/or the Master Servicer
for
all information and data (including loss and delinquency information and data)
and loan level information and data relating to the servicing of the Mortgage
Loans and neither the Securities Administrator nor the Trustee shall have any
obligation to provide any such information to the Credit Risk Manager and shall
not otherwise have any responsibility under the Credit Risk Management
Agreement.
(b) On
or
about the 15th calendar day of each month, the Credit Risk Manager shall have
prepared and shall make available to any NIMS Insurer, the Trustee, the Swap
Counterparty, the Securities Administrator and each Certificateholder, the
following reports (each such report to be made in a format compatible with
▇▇▇▇▇
filing requirements):
(i) Watchlist
Report:
A
listing of individual Mortgage Loans that are of concern to the Credit Risk
Manager. Each Watchlist Report shall contain a listing of Mortgage Loans in
any
delinquency status, including current and paid-off loans, and may contain the
comments of the Credit Risk Manager in its sole discretion. The Watchlist Report
shall be presented in substantially the same format attached hereto as Exhibit
R-1;
168
(ii) Loss
Severity Report:
A
compilation and summary of all losses, indicating the loan loss severity for
each Mortgage Pool. Each Loss Severity Report shall include detail of all losses
reported by a Servicer or the Master Servicer as Realized Losses, except those
for which a Servicer or the Master Servicer has not provided detail adequate
for
reporting purposes. The Loss Severity Report shall be presented in substantially
the same format attached hereto as Exhibit R-2;
(iii) Mortgage
Insurance Claims Report:
A
summary of mortgage insurance claims submitted to the PMI Insurer by the
Servicers, claim payment and denial information, and penalties assessed by
the
PMI Insurer. The Mortgage Insurance Claims Report shall be presented in
substantially the same format attached hereto as Exhibit R-3;
(iv) Prepayment
Premiums Report:
A
summary of Prepayment Premiums assessed or waived by each Servicer. The
Prepayment Premiums Report shall be presented in substantially the same format
attached hereto as Exhibit R-4; and
(v) Analytics
Report:
Analytics Reports shall include statistical and/or graphical portrayals
of:
|
(A)
|
Delinquency
Trend:
The delinquency trend, over time, of the Mortgage
Loans;
|
|
(B)
|
Prepayment
Analysis:
The constant prepayment rate “CPR” experience of the Mortgage Loans;
and
|
|
(C)
|
Standard
Default Assumption:
The Standard Default Assumption experience of the Mortgage
Loans.
|
The
Analytics Report shall be presented in substantially the same format attached
hereto as Exhibit R-5.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Trustee, the Securities Administrator, any NIMS Insurer
and the Rating Agencies via the Credit Risk Manager’s internet website. The
Credit Risk Manager’s internet website shall initially be located at
▇▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇.▇▇▇.
The
user name for access to the website shall be the Certificateholder’s e-mail
address and the password shall be “SASCO 2006-BC2.” Neither the Trustee nor the
Securities Administrator shall have any obligation to review such reports or
otherwise monitor or supervise the activities of the Credit Risk
Manager.
(c) On
each
Distribution Date, the Credit Risk Manager shall (A) calculate, for each PMI
Insurer, the Threshold Calculation for each such PMI Insurer for the immediately
preceding Collection Period and (B) notify the Depositor, the Sponsor and the
related PMI Insurer of each such PMI Insurer’s Threshold
Calculation.
(d) The
Credit Risk Manager shall reasonably cooperate with the Depositor, the Trustee
and the Securities Administrator in connection with the Trust Fund’s satisfying
the reporting requirements under the 1934 Act with respect to reports prepared
by the Credit Risk Manager.
169
(e) The
Credit Risk Manager has not and shall not engage any Subcontractor without
(a)
giving notice to the Sponsor, the Securities Administrator, the Master Servicer
and the Depositor and (b) requiring any such Subcontractor to provide to the
Credit Risk Manager an assessment report as provided for in Section 9.25(a)
above and an attestation report as provided in Section 9.25(b) above, which
reports the Credit Risk Manager shall include in its assessment and attestation
reports.
(f) By
March
15 of each year (or if such day is not a Business Day, the immediately preceding
Business Day), the Credit Risk Manager shall deliver a signed certification,
in
the form attached hereto as Exhibit U (the “Credit Risk Manager Certification”),
for the benefit of the Depositor, the Sponsor, the Master Servicer and the
Securities Administrator and for the benefit of the Person(s) signing the Form
10-K Certification; provided (i) that the Credit Risk Manager Certification
shall be so provided by March 15 of such year only to the extent that the
Depositor delivers a draft (without exhibits) of the applicable Annual Report
on
Form 10-K to the Credit Risk Manager by the 5th Business Day in March of such
year and (ii) in the event that the Depositor delivers the draft Form 10-K
referred to in clause (i) after the 5th Business Day in March of such year,
the
Credit Risk Manager shall deliver the Credit Risk Manager Certification as
soon
as practicable but no later than five calendar days of delivery to the Credit
Risk Manager of such draft Form 10-K.
(g) In
the
event that prior to the filing date of the Form 10-K in March of each year,
the
Credit Risk Manager has knowledge or information material to the Credit Risk
Manager Certification, the Credit Risk Manager shall promptly notify the
Depositor, the Trustee and the Securities Administrator, in writing.
|
Section
9.35.
|
Limitation
Upon Liability of the Credit Risk
Manager.
|
Except
as
provided pursuant to Section 9.36 of this Agreement, neither the Credit Risk
Manager, nor any of the directors, officers, employees or agents of the Credit
Risk Manager, shall be under any liability to the Trustee, the Securities
Administrator, the Certificateholders or the Depositor for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, in reliance upon information provided by Servicers under the Credit
Risk Management Agreements or for errors in judgment; provided, however,
that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Credit Risk Management Agreements. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager may rely
in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder, and may rely
in good faith upon the accuracy of information furnished by the Servicers
pursuant to the Credit Risk Management Agreements in the performance of its
duties thereunder and hereunder.
170
|
Section
9.36.
|
Indemnification
by the Credit Risk Manager.
|
The
Credit Risk Manager agrees to indemnify the Depositor, the Master Servicer
and
the Securities Administrator, and each of their respective directors, officers,
employees and agents and the Trust Fund and hold each of them harmless from
and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon the engagement of
any
Subcontractor in violation of Section 9.34(f) or any failure by the Credit
Risk
Manager to deliver any information, report, certification, accountants’ letter
or other material when and as required under this Agreement, including any
report under Sections 9.25(a) or (b).
|
Section
9.37.
|
Removal
of Credit Risk Manager.
|
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than a 66-2/3% Voting Interests in the Trust, in the exercise
of its or their sole discretion, at any time, without cause, upon ten (10)
days
prior written notice. The Certificateholders shall provide such written notice
to the Trustee and upon receipt of such notice, the Trustee shall provide
written notice to the Credit Risk Manager of its removal, effective upon receipt
of such notice.
ARTICLE
X
REMIC
ADMINISTRATION
|
Section
10.01.
|
REMIC
Administration.
|
(a) REMIC
elections as set forth in the Preliminary Statement shall be made on Forms
1066
or other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be
as
designated in the Preliminary Statement. For purposes of such designations,
the
interest rate of any regular interest that is computed by taking into account
the weighted average of the Net Mortgage Rates of the Mortgage Loans shall
be
reduced by the amount of any expense paid by the Trust to the extent that (i)
such expense was not taken into account in computing the Net Mortgage Rate
of
any Mortgage Loan, (ii) such expense does not constitute an “unanticipated
expense” of a REMIC within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii) and (iii) the amount of such expense was not taken into
account in computing the interest rate of a more junior Class of regular
interests.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation 1.860G-1(a)(4) will be the Latest Possible
Maturity Date.
(c) The
Securities Administrator shall represent the Trust Fund in any administrative
or
judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The Securities Administrator shall pay
any and all tax related expenses (not including taxes) of each REMIC, including
but not limited to any professional fees or expenses related to audits or any
administrative or judicial proceedings with respect to such REMIC that involve
the Internal Revenue Service or state tax authorities, but only to the extent
that (i) such expenses are ordinary or routine expenses, including expenses
of a
routine audit but not expenses of litigation (except as described in (ii));
or
(ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from the
Certificate Account, provided, however, the Securities Administrator shall
not
be entitled to reimbursement for expenses incurred in connection with the
preparation of tax returns and other reports as required by Section 6.20 and
this Section.
171
(d) The
Securities Administrator shall prepare, the Trustee shall sign and the
Securities Administrator shall file, all of each REMIC’s federal and appropriate
state tax and information returns as such REMIC’s direct representative. The
expenses of preparing and filing such returns shall be borne by the Securities
Administrator.
(e) The
Securities Administrator or its designee shall perform on behalf of each REMIC
all reporting and other tax compliance duties that are the responsibility of
such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or other
such guidance, the Securities Administrator shall provide (i) to the Treasury
or
other governmental authority such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to
any
disqualified person or organization pursuant to Treasury Regulation
1.860E-2(a)(5) and any person designated in Section 860E(e)(3) of the Code
and
(ii) to the Trustee such information as is necessary for the Trustee to provide
to the Certificateholders such information or reports as are required by the
Code or REMIC Provisions.
The
Securities Administrator shall be entitled to receive reasonable compensation
from the Trust for the performance of its duties under this subsection (e);
provided,
however,
that
such compensation shall not exceed $5,000 per year.
(f) The
Trustee, the Securities Administrator, the Master Servicer and the Holders
of
Certificates shall take any action or cause any REMIC to take any action
necessary to create or maintain the status of any REMIC as a REMIC under the
REMIC Provisions and shall assist each other as necessary to create or maintain
such status. Neither the Trustee, the Securities Administrator, the Master
Servicer nor the Holder of any Residual Certificate shall knowingly take any
action, cause any REMIC to take any action or fail to take (or fail to cause
to
be taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could result in an Adverse REMIC Event unless the Trustee,
the
Securities Administrator, any NIMS Insurer and the Master Servicer have received
an Opinion of Counsel addressed to the Trustee (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 or the assets therein, or causing any REMIC to take any
action, which is not expressly permitted under the terms of this Agreement,
any
Holder of a Residual Certificate will consult with the Trustee, the Securities
Administrator, the Master Servicer, any NIMS Insurer or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person
shall
take any such action or cause any REMIC to take any such action as to which
the
Trustee, the Securities Administrator, the Master Servicer or any NIMS Insurer
has advised it in writing that an Adverse REMIC Event could occur.
172
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the extent
that such taxes are not paid by a Residual Certificateholder, the Trustee shall
pay any remaining REMIC taxes out of current or future amounts otherwise
distributable to the Holder of the Residual Certificate in any such REMIC or,
if
no such amounts are available, out of other amounts held in the Certificate
Account, and shall reduce amounts otherwise payable to holders of regular
interests in any 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 on a calendar year and on an accrual
basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
(j) Neither
the Securities Administrator nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) On
or
before October 15 of each calendar year beginning in 2006, the Securities
Administrator shall deliver to the Trustee and any NIMS Insurer an Officer’s
Certificate stating, without regard to any actions taken by any party other
than
the Securities Administrator, the Securities Administrator’s compliance with
provisions of this Section 10.01.
(l) The
Securities Administrator shall treat each of the Basis Risk Reserve Fund and
the
Supplemental Interest Trust as an outside reserve fund within the meaning of
Treasury Regulation Section 1.860G-2(h) that is owned by the Holders of the
Class X Certificates and that is not an asset of any REMIC and all amounts
deposited into the Basis Risk Reserve Fund or the Supplemental Interest Trust
shall be treated as amounts distributed to the Class X Certificateholders.
(m) For
federal income tax purposes, upon any sale of the property held by the Trust
Fund pursuant to Section 7.01(b), any NIM Redemption Amount paid by the Master
Servicer shall not be treated as a portion of the purchase price paid for such
property but shall instead be treated as an amount paid by the Master Servicer
to the Holder of the Class X Certificates in exchange for an interest in the
Class X Certificates immediately before the purchase of the property held by
the
Trust Fund.
(n) The
Securities Administrator shall treat the beneficial owners of Certificates
(other than the Class P, Class X, Class LT-R and Class R Certificates) as having
entered into a notional principal contract with respect to the beneficial owners
of the Class X Certificates. Pursuant to each such notional principal contract,
all beneficial owners of LIBOR Certificates shall be treated as having agreed
to
pay, on each Distribution Date, to the beneficial owners of the Class X
Certificates an aggregate amount equal to the excess, if any, of (i) the amount
payable on such Distribution Date on the interest in the Upper Tier REMIC
corresponding to such Class of Certificates over (ii) the amount payable on
such
Class of Certificates on such Distribution Date (such excess, a “Class I
Shortfall”). A Class I Shortfall payable from interest collections shall be
allocated to each Class of Certificates to the extent that interest accrued
on
such Class for the related Accrual Period at the Certificate Interest Rate
for a
Class, computed by substituting “REMIC 3 Net Funds Cap” for the applicable “Net
Funds Cap” in the definition thereof, exceeds the amount of interest accrued for
the related Accrual Period based on the applicable Net Funds Cap, and a Class
I
Shortfall payable from principal collections shall be allocated to the most
subordinate Class of Certificates with an outstanding principal balance to
the
extent of such balance. In addition, pursuant to such notional principal
contract, the beneficial owner of the Class X Certificates shall be treated
as
having agreed to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
to
the Owners of the LIBOR Certificates in accordance with the terms of this
Agreement. Any payments to the Certificates in light of the foregoing shall
not
be payments with respect to a “regular interest” in a REMIC within the meaning
of Code Section 860G(a)(1). However, any payment from the Certificates of a
Class I Shortfall shall be treated for tax purposes as having been received
by
the beneficial owners of such Certificates in respect of their Interests in
the
Upper Tier REMIC and as having been paid by such beneficial owners to the
Supplemental Interest Trust pursuant to the notional principal contract. Thus,
each Certificate (other than a Class P, Class R and Class LT-R Certificates)
shall be treated as representing not only ownership of regular interests in
the
Upper Tier REMIC, but also ownership of an interest in (and obligations with
respect to) a notional principal contract. For tax purposes, the notional
principal contract shall be deemed to have a value in favor of the Certificates
entitled to receive Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
of
$58,882.98 as of the Closing Date.
173
(o) Notwithstanding
the priority and sources of payments set forth in Article V hereof or otherwise,
the Securities Administrator shall account for all distributions on the
Certificates as set forth in this Section 10.01. In no event shall any payments
of Basis Risk Shortfalls or Unpaid Basis Risk Shortfalls provided for in this
Section 10.01 be treated as payments with respect to a “regular interest” in a
REMIC within the meaning of Code Section 860G(a)(1).
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
Neither
the Depositor, the Master Servicer 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 each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless the Trustee and any NIMS Insurer has received an Opinion of Counsel
addressed to the Trustee (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) result in an Adverse REMIC Event, (b) affect the
distribution of interest or principal on the Certificates or (c) result in
the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement).
174
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC
Status.
|
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by the
Trustee or the Securities Administrator, as applicable, of its duties and
obligations set forth herein, the Trustee or the Securities Administrator,
as
applicable, shall indemnify any NIMS Insurer, the Holder of the related Residual
Certificate or the Trust Fund, as applicable, against any and all losses,
claims, damages, liabilities or expenses (“Losses”) resulting solely from such
negligence; provided,
however,
that
neither the Trustee nor the Securities Administrator shall be liable for any
such Losses attributable to the action or inaction of the Master Servicer,
the
Depositor, the Class X Certificateholders, the Holder of such Residual
Certificate or the Securities Administrator (with regard to the Trustee), as
applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Securities Administrator
has relied. The foregoing shall not be deemed to limit or restrict the rights
and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Trustee or the Securities Administrator, as applicable, have
any
liability (1) for any action or omission that is taken in accordance with and
in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement or any Servicing Agreement, (2) for any Losses other
than arising out of a negligent performance by the Trustee or the Securities
Administrator, as applicable, of its duties and obligations set forth herein,
and (3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates); provided,
however,
that
this sentence shall not apply in connection with any failure by the Securities
Administrator to comply with the provisions of Subsections 6.01(l) hereof and
Subsections 9.25(a) or (b) hereof. In addition, neither the Trustee nor the
Securities Administrator shall have any liability for the actions or failure
to
act of the other.
|
Section
10.04.
|
REO
Property.
|
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the
applicable Servicing Agreement, knowingly permit any Servicer to, rent, lease,
or otherwise earn income on behalf of any REMIC with respect to any REO Property
which might cause an Adverse REMIC Event unless the Master Servicer has advised,
or has caused the applicable Servicer to advise, the Trustee and any NIMS
Insurer in writing to the effect that, under the REMIC Provisions, such action
would not result in an Adverse REMIC Event.
(b) The
Master Servicer shall cause the applicable Servicer (to the extent provided
in
its Servicing Agreement) to make reasonable efforts to sell any REO Property
for
its fair market value. In any event, however, the Master Servicer shall, or
shall cause the applicable Servicer (to the extent provided in its Servicing
Agreement) to, dispose of any REO Property within three years of its acquisition
by the Trust Fund unless the Master Servicer has received a grant of extension
from the Internal Revenue Service to the effect that, under the REMIC
Provisions, the REMIC may hold REO Property for a longer period without causing
an Adverse REMIC Event. If the Master Servicer has received such an extension,
then the Trustee, or the Master Servicer, acting on its behalf hereunder, shall,
or shall cause the applicable Servicer to, continue to attempt to sell the
REO
Property for its fair market value for such period longer than three years
as
such extension permits (the “Extended Period”). If the Trustee has not received
such an extension and the Master Servicer or the applicable Servicer, acting
on
behalf of the Trustee hereunder, is unable to sell the REO Property within
33
months after its acquisition by the Trust Fund or if the Master Servicer has
received such an extension, and the Master Servicer or the applicable Servicer
is unable to sell the REO Property within the period ending three months before
the close of the Extended Period, the Master Servicer shall cause the applicable
Servicer, before the end of the three year period or the Extended Period, as
applicable, to (i) purchase such REO Property at a price equal to the REO
Property’s fair market value or (ii) auction the REO Property to the highest
bidder (which may be the applicable Servicer) in an auction reasonably designed
to produce a fair price prior to the expiration of the three-year period or
the
Extended Period, as the case may be.
175
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
Section
11.01.
|
Binding
Nature of Agreement;
Assignment.
|
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
|
Section
11.02.
|
Entire
Agreement.
|
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
|
Section
11.03.
|
Amendment.
|
(a) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Securities
Administrator, and the Trustee, with the consent of any NIMS Insurer, but
without the consent of the Credit Risk Manager or the Swap Counterparty (except
to the extent that the rights or obligations of (1) the Credit Risk Manager
or
the Swap Counterparty hereunder or (2) the Swap Counterparty under the Swap
Agreement are affected thereby, and except to the extent the ability of the
Trustee on behalf of the Supplemental Interest Trust and the Trust Fund to
perform fully and timely its obligations under the Swap Agreement is adversely
affected, in which case prior written consent of the Swap Counterparty is
required) and without notice to or the consent of any of the Holders, (i) to
cure any ambiguity, (ii) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in any Offering Document, or
to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein or with the provisions of any Servicing Agreement,
(iii)
to make any other provisions with respect to matters or questions arising under
this Agreement or (iv) to add, delete, or amend any provisions to the extent
necessary or desirable to comply with any requirements imposed by the Code
and
the REMIC Provisions as evidenced by an Opinion of Counsel. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of
Counsel, result in an Adverse REMIC Event, nor shall such amendment effected
pursuant to clause (iii) of such sentence adversely affect in any material
respect the interests of any Holder. Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee, any
NIMS
Insurer and the Swap Counterparty shall be provided with an Opinion of Counsel
addressed to the Trustee, any NIMS Insurer and the Swap Counterparty (at the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this Section. Any such amendment shall be deemed
not to adversely affect in any material respect any Holder, if the Trustee
receives written confirmation from each Rating Agency that such amendment will
not cause such Rating Agency to reduce the then current rating assigned to
the
Certificates.
176
(b) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee, with the consent of any NIMS Insurer, but without
the consent of the Credit Risk Manager or the Swap Counterparty (except to
the
extent that the rights or obligations of (1) the Credit Risk Manager or the
Swap
Counterparty hereunder or (2) the Swap Counterparty under the Swap Agreement
are
affected thereby, or the ability of the Trustee on behalf of the Supplemental
Interest Trust and the Trust Fund to perform fully and timely its obligations
under the Swap Agreement is adversely affected, in which case prior written
consent of the Swap Counterparty is required) and with the consent of the
Holders of not less than 66-2/3% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided, however, that no such amendment shall be made unless the
Trustee and any NIMS Insurer receives an Opinion of Counsel addressed to the
Trustee and the NIMS Insurer, at the expense of the party requesting the change,
that such change will not cause an Adverse REMIC Event; and provided further,
that no such amendment may (i) reduce in any manner the amount of, or delay
the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate or (ii) reduce the aforesaid percentages of Class Principal Amount
(or Percentage Interest) of Certificates of each Class, the Holders of which
are
required to consent to any such amendment without the consent of the Holders
of
100% of the Class Principal Amount (or Percentage Interest) of each Class of
Certificates affected thereby. For purposes of this paragraph, references to
“Holder” or “Holders” shall be deemed to include, in the case of any Class of
Book-Entry Certificates, the related Certificate Owners.
(c) After
a
Section 7.01(c) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator, the LTURI-holder and the Trustee,
but without the consent of the Credit Risk Manager, the Cap Counterparty or
the
Swap Counterparty (except to the extent that the rights or obligations of (1)
the Credit Risk Manager, the Cap Counterparty or the Swap Counterparty hereunder
or (2) the Cap Counterparty or the Swap Counterparty under the Interest Rate
Cap
Agreement or the Swap Agreement, respectively, or the ability of the Trustee
on
behalf of the Supplemental Interest Trust and the Trust Fund to perform fully
and timely its obligations under the Interest Rate Cap Agreement or the Swap
Agreement, as applicable, is adversely affected, in which case prior written
consent of the Credit Risk Manager, the Cap Counterparty or the Swap
Counterparty, as applicable, is required). Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee and
the
Swap Counterparty shall be provided with an Opinion of Counsel addressed to
the
Trustee, any NIMS Insurer and the Swap Counterparty (at the expense of the
party
requesting such amendment) to the effect that such amendment is permitted under
this Section and will not result in an Adverse REMIC Event.
177
(d) Promptly
after the execution of any such amendment, the Trustee shall furnish written
notification of the substance of such amendment to each Holder, the Depositor,
the Swap Counterparty, any NIMS Insurer and to the Rating Agencies.
(e) It
shall
not be necessary for the consent of Holders under this Section 11.03 to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by Holders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
(f) Notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or 11.03(b)
with
respect to amendment of this Agreement and (ii) except for a Permitted Servicing
Amendment, any such amendment pursuant to Section 11.03(a)(iii) shall not be
materially inconsistent with the provisions of such Servicing Agreement.
(g) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee to the extent necessary, in the judgment of the
Depositor and its counsel, to comply with the Rules.
|
Section
11.04.
|
Voting
Rights.
|
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount (or Percentage Interest),
Certificates owned by the Depositor, the Master Servicer, the Securities
Administrator, the Trustee, any Servicer, the Credit Risk Manager or Affiliates
thereof are not to be counted so long as such Certificates are owned by the
Depositor, the Master Servicer, the Securities Administrator, the Trustee,
any
Servicer, the Credit Risk Manager or any Affiliate thereof.
|
Section
11.05.
|
Provision
of Information.
|
(a) For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Securities Administrator agree to
cooperate with each other to provide to any Certificateholders, any NIM Security
holder 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 Act. Any
reasonable, out-of-pocket expenses incurred by the Master Servicer or the
Securities Administrator in providing such information shall be reimbursed
by
the Depositor.
178
(b) The
Securities Administrator shall provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or documents
requested, (i) a copy (excluding exhibits) of any report on Form 8-K or Form
10-K filed with the Securities and Exchange Commission pursuant to Section
6.20(c) and (ii) a copy of any other document incorporated by reference in
the
Prospectus. Any reasonable out-of-pocket expenses incurred by the Securities
Administrator in providing copies of such documents shall be reimbursed by
the
Depositor.
(c) On
each
Distribution Date, the Securities Administrator shall deliver or cause to be
delivered by first class mail or make available on its website to the Depositor,
Attention: Contract Finance, a copy of the report delivered to
Certificateholders pursuant to Section 4.03.
|
Section
11.06.
|
Governing
Law.
|
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
|
Section
11.07.
|
Notices.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Mortgage Finance SASCO 2006-BC2,
(b) in the case of the Seller, ▇▇▇▇▇▇ Brothers Holdings Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Mortgage Finance SASCO
2006-BC2, (c) in the case of the Credit Risk Manager, ▇▇▇▇▇▇▇ Fixed Income
Services Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel, (d) in the case of the Trustee, the ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance - SASCO 2006-BC2,
(e)
in the case of the Master Servicer, ▇▇▇▇▇ Fargo Bank, N.A., ▇.▇. ▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and for overnight deliveries ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: SASCO 2006-BC2, telecopy number
▇▇▇-▇▇▇-▇▇▇▇, (f) in the case of the Securities Administrator, ▇▇▇▇▇ Fargo
Bank,
N.A., ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and for overnight deliveries ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: SASCO 2006-BC2, telecopy
number ▇▇▇-▇▇▇-▇▇▇▇, (g) in the case of Mortgage Guaranty Insurance Corporation,
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Risk Management, (h) in the case of PMI Mortgage Insurance Co., ▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Transactions and (i)
in
the case of the Cap Counterparty or the Swap Counterparty, ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or, as to each party such other address as
may
hereafter be furnished by such party to the other parties in writing. All
demands, notices and communications to a party hereunder shall be in writing
and
shall be deemed to have been duly given when delivered to such party at the
relevant address, facsimile number or electronic mail address set forth above
or
at such other address, facsimile number or electronic mail address as such
party
may designate from time to time by written notice in accordance with this
Section 11.07.
179
|
Section
11.08.
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
|
Section
11.09.
|
Indulgences;
No Waivers.
|
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted to
have
granted such waiver.
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
|
Section
11.11.
|
Benefits
of Agreement.
|
The
Depositor shall promptly notify the Custodian and the Trustee in writing of
the
issuance of any Class of NIMS Securities issued by a NIMS Insurer and the
identity of such NIMS Insurer. Thereafter, the NIMS Insurer shall be deemed
a
third-party beneficiary of this Agreement to the same extent as if it were
a
party hereto, and shall be subject to and have the right to enforce the
provisions of this Agreement so long as the NIMS Securities remaining
outstanding or the NIMS Insurer is owed amounts in respect of its guarantee
of
payment of such NIMS Securities. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder, the Swap Counterparty
and its successors and assignees under the Swap Agreement, the Holders of the
Certificates and the NIMS Insurer, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement, except to the extent specified
in
Sections 5.08 and Section 11.15, as applicable.
|
Section
11.12.
|
Special
Notices to the Rating Agencies and any NIMS
Insurer.
|
(a) The
Depositor shall give prompt notice to the Rating Agencies and any NIMS Insurer
of the occurrence of any of the following events of which it has
notice:
180
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section 6.14;
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of any Servicer under the applicable
Servicing Agreement.
(b) All
notices to the Rating Agencies provided for this Section shall be in writing
and
sent by first class mail, telecopy or overnight courier, as
follows:
If
to
S&P, to:
Standard
& Poor’s Ratings Services
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Residential Mortgages
If
to
Moody’s, to:
▇▇▇▇▇’▇
Investor Service, Inc.
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Residential Mortgages
181
If
to
Fitch, to:
Fitch,
Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Residential Mortgages
If
to
DBRS, to:
Dominion
Bond Rating Service, Inc.
One
Exchange Plaza
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Residential Mortgages
(c) The
Securities Administrator shall provide or make available to the Rating Agencies
reports prepared pursuant to Section 4.03. In addition, the Securities
Administrator shall, at the expense of the Trust Fund, make available to each
Rating Agency such information as such Rating Agency may reasonably request
regarding the Certificates or the Trust Fund, to the extent that such
information is reasonably available to the Securities
Administrator.
|
Section
11.13.
|
Conflicts.
|
To
the
extent that the terms of this Agreement conflict with the terms of any Servicing
Agreement, the related Servicing Agreement shall govern, unless such provisions
shall adversely affect the Trustee or the Trust Fund.
|
Section
11.14.
|
Counterparts.
|
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one and
the
same instrument.
|
Section
11.15.
|
Transfer
of Servicing.
|
The
Seller agrees that it shall provide written notice to the Master Servicer,
the
Securities Administrator, the Swap Counterparty, any NIMS Insurer and the
Trustee thirty days prior to any proposed transfer or assignment by such Seller
of its rights under any Servicing Agreement or of the servicing thereunder
or
delegation of its rights or duties thereunder or any portion thereof to any
other Person other than the initial Servicer under such Servicing Agreement;
provided that the Seller shall not be required to provide prior notice of
(i) any transfer of servicing that occurs within three months following the
Closing Date to an entity that is a Servicer on the Closing Date or
(ii) any assignment of any Servicing rights from one Seller to the other
Seller. In addition, the ability of the Seller to transfer or assign its rights
and delegate its duties under a Servicing Agreement or to transfer the servicing
thereunder to a successor servicer shall be subject to the following
conditions:
182
(i) satisfaction
of the conditions to such transfer as set forth in the applicable Servicing
Agreement including, without limitation, receipt of written consent of any
NIMS
Insurer and the Master Servicer to such transfer;
(ii) Such
successor servicer must be qualified to service loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac, and must be a member in good standing of MERS;
(iii) Such
successor servicer must satisfy the seller/servicer eligibility standards in
the
applicable Servicing Agreement, exclusive of any experience in mortgage loan
origination;
(iv) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the applicable Servicer under the
applicable Servicing Agreement or, in the case of a transfer of servicing to
a
party that is already a Servicer pursuant to this Agreement, an agreement to
add
the related Mortgage Loans to the Servicing Agreement already in effect with
such Servicer;
(v) If
the
successor servicer is not a Servicer of Mortgage Loans at the time of the
transfer, there must be delivered to the Trustee and the Master Servicer a
letter from each Rating Agency to the effect that such transfer of servicing
will not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates; and
(vi) The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following: (A) to the
extent required by the terms of the Mortgage Loans and by applicable federal
and
state laws and regulations, the Seller shall cause the prior Servicer to timely
mail to each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of servicing, the
Seller shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the effective
date of such transfer of servicing, the Seller shall cause the prior Servicer
to
deliver to the successor servicer all Mortgage Loan Documents and any related
records or materials; (D) on or prior to the effective date of such transfer
of
servicing, the Seller shall cause the prior Servicer to transfer to the
successor servicer, all funds held by the prior Servicer in respect of the
Mortgage Loans; (E) on or prior to the effective date of such transfer of
servicing, the Seller shall cause the prior Servicer to, after the effective
date of the transfer of servicing to the successor servicer, continue to forward
to such successor servicer, within one Business Day of receipt, the amount
of
any payments or other recoveries received by the prior Servicer, and to notify
the successor servicer of the source and proper application of each such payment
or recovery; and (F) the Seller shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer, continue
to
cooperate with the successor servicer to facilitate such transfer in such manner
and to such extent as the successor servicer may reasonably request.
Notwithstanding the foregoing, the prior Servicer shall be obligated to perform
the items listed above to the extent provided in the applicable Servicing
Agreement.
183
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
STRUCTURED
ASSET SECURITIES
CORPORATION,
as Depositor
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Senior Vice President
U.S.
BANK
NATIONAL ASSOCIATION,
as Trustee
as Trustee
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
▇▇▇▇▇
FARGO BANK, N.A.,
as Master Servicer and Securities Administrator
as Master Servicer and Securities Administrator
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Assistant Vice President
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC.,
as Credit Risk Manager
as Credit Risk Manager
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
President and General Counsel
Solely
for purposes of Sections 5.07(c), 6.11 and 11.15,
accepted
and agreed to by:
▇▇▇▇▇▇
BROTHERS HOLDINGS INC.
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
INITIAL CERTIFICATION
Date
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured
Asset Securities Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[SERVICERS]
|
Re:
|
Trust
Agreement dated as of August 1, 2006 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer
and
Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income Services Inc.,
as
Credit Risk Manager with respect to Structured Asset Securities
Corporation Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2006-BC2
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review of
the
contents thereof, the undersigned, as Custodian, hereby certifies that it has
received the documents listed in Section 2.01(b) of the Trust Agreement for
each
Mortgage File pertaining to each Mortgage Loan listed on Schedule A, to the
Trust Agreement, subject to any exceptions noted on Schedule I
hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
[Custodian]
By:_____________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
INTERIM CERTIFICATION
Date
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured
Asset Securities Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[SERVICERS]
|
Re:
|
Trust
Agreement dated as of August 1, 2006 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer
and
Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income Services Inc.,
as
Credit Risk Manager with respect to Structured Asset Securities
Corporation Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2006-BC2
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on Schedule
I
hereto) it has received the applicable documents listed in Section 2.01(b)
of
the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears regular on its
face
and appears to relate to the Mortgage Loan identified in such
document.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
[Custodian]
By:_____________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
FINAL CERTIFICATION
Date
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured
Asset Securities Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[SERVICERS]
|
Re:
|
Trust
Agreement dated as of August 1, 2006 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer
and
Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income Services Inc.,
as
Credit Risk Manager with respect to Structured Asset Securities
Corporation Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2006-BC2
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned, as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it has received the applicable documents
listed in Section 2.01(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears to be complete
and,
based on an examination of such documents, the information set forth in items
(i) through (vi) of the definition of Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
[Custodian]
By:_____________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
ENDORSEMENT
Pay
to
the order of U.S. Bank National Association, as trustee (the “Trustee”) under
the Trust Agreement dated as of August 1, 2006 by and among Structured Asset
Securities Corporation, as Depositor, the Trustee, ▇▇▇▇▇ Fargo Bank, N.A.,
as
Master Servicer and Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income Services
Inc., as Credit Risk Manager relating to Structured Asset Securities Corporation
Mortgage Loan Trust Mortgage Pass-Through Certificates, Series 2006-BC2, without
recourse.
__________________________________
[current
signatory on note]
By:_______________________________
Name:
Title:
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed
to Trustee
or,
if
applicable, the Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of August 1, 2006 by and among Structured
Asset Securities Corporation, as Depositor, you, as Trustee, ▇▇▇▇▇ Fargo Bank,
N.A., as Master Servicer and Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income
Services Inc., as Credit Risk Manager, (the “Trust Agreement”), the undersigned
Servicer hereby requests a release of the Mortgage File held by you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Servicer hereby certifies that all amounts received
in
connection with the loan have been or will be credited to the Certificate
Account pursuant to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Servicer hereby certifies that a Qualifying Substitute
Mortgage Loan has been assigned and delivered to you along with the related
Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The Servicer hereby certifies that the Purchase Price or
PPTL
Purchase Price (in the case of a First Payment Default Mortgage Loan) has been
credited to the Certificate Account pursuant to the Trust
Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and will be
returned to you within ten (10) days of our receipt of the Mortgage File, except
if the Mortgage Loan has been paid in full, or repurchased or substituted for
a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will be
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required by
us
for such purpose).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
_____________________________________
[Name
of
Servicer]
By:__________________________________
Name:
Title:
Servicing Officer
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized
and
existing under the laws of the [State of __________] [United States],
on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
.
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity from
which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all of
its
activities are subject to tax and a majority of its board of directors
is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code Section
511.
|
|
4.
|
That
the Purchaser either (x) is not, and on __________________ [date
of
transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code
(“Code”), (collectively, a “Plan”) or a person acting on behalf of any
such Plan or investing the assets of any such Plan to acquire a Residual
Certificate; (y) if the Residual Certificate has been the subject
of an
ERISA-Qualifying Underwriting, is an insurance company that is purchasing
the Residual Certificate with funds contained in an “insurance company
general account” as defined in Section V(e) of Prohibited Transaction
Class Exemption (“PTCE”) 95-60 and the purchase and holding of the
Residual Certificate are covered under Sections I and III of PTCE
95-60;
or (z) herewith delivers to the Securities Administrator an opinion
of
counsel (a “Benefit Plan Opinion”) satisfactory to the Securities
Administrator, and upon which the Trustee, the Master Servicer, any
Servicer, the Securities Administrator, the Depositor and any NIMS
Insurer
shall be entitled to rely, to the effect that the purchase or holding
of
such Residual Certificate by the Investor will not result in any
non-exempt prohibited transactions under Title I of ERISA or Section
4975
of the Code and will not subject the Trustee, the Depositor, the
Master
Servicer, any Servicer, the Securities Administrator or any NIMS
Insurer
to any obligation in addition to those undertaken by such entities
in the
Trust Agreement, which opinion of counsel shall not be an expense
of the
Trust Fund or any of the above
parties.
|
D-1-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the “Agreement”) by and among Structured Asset Securities
Corporation, as Depositor, U.S. Bank National Association, as Trustee,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Securities Administrator,
and ▇▇▇▇▇▇▇ Fixed Income Services Inc., as Credit Risk Manager, dated
as
of August 1, 2006, no transfer of the Residual Certificate shall
be
permitted to be made to any person unless the Depositor and Securities
Administrator have received a certificate from such transferee containing
the representations in paragraphs 3 and 4
hereof.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10
hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 7 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Securities Administrator a written
statement substantially in the form of Exhibit D-2 to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
10.
|
That
the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person
that holds a Residual Certificate in connection with the conduct
of a
trade or business within the United States and has furnished the
transferor and the Securities Administrator with an effective Internal
Revenue Service Form W-8ECI (Certificate of Foreign Person’s Claim for
Exemption From Withholding on Income Effectively Connected With the
Conduct of a Trade or Business in the United States) or successor
form at
the time and in the manner required by the Code or (iii) is a Non-U.S.
Person that has delivered to both the transferor and the Securities
Administrator an opinion of a nationally recognized tax counsel to
the
effect that the transfer of such Residual Certificate to it is in
accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual Certificate
will not be disregarded for federal income tax purposes. “Non-U.S. Person”
means an individual, corporation, partnership or other person other
than
(i) a citizen or resident of the United States; (ii) a corporation,
partnership or other entity created or organized in or under the
laws of
the United States or any state thereof, including for this purpose,
the
District of Columbia; (iii) an estate that is subject to U.S. federal
income tax regardless of the source of its income; (iv) 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 trustees
have
authority to control all substantial decisions of the trust; and,
(v) to
the extent provided in Treasury regulations, certain trusts in existence
on August 20, 1996 that are treated as United States persons prior
to such
date and elect to continue to be treated as United States
persons.
|
D-1-2
|
11.
|
That
the Purchaser agrees to such amendments of the Trust Agreement as
may be
required to further effectuate the restrictions on transfer of any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 7 and paragraph 10
hereof.
|
|
12.
|
That
the Purchaser consents to the designation of the Securities Administrator
as its agent to act as “tax matters person” of the Trust Fund pursuant to
the Trust Agreement.
|
D-1-3
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, 20__.
_________________________________
[Name
of
Purchaser]
By:______________________________
Name:
Title:
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument and
to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
______________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
____________________________
Date
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan
Trust
|
Mortgage
Pass-Through Certificates, Series 2006-BC2
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very
truly yours,
_______________________________
Name:
Title:
D-2-1
EXHIBIT
E
LIST
OF
SERVICING AGREEMENTS
|
1.
|
Securitization
Servicing Agreement dated as of August 1, 2006, by and among LBH,
as
seller, Aurora Loan Services LLC, as servicer, and the Master Servicer,
and acknowledged by the Trustee;
|
|
2.
|
Reconstituted
Servicing Agreement dated as of August 1, 2006, by and between LBH,
as
seller, Countrywide Home Loans Servicing LP, as servicer, Countrywide
Home
Loans, Inc., and acknowledged by the Master Servicer and the
Trustee;
|
|
3.
|
Securitization
Servicing Agreement dated as of August 1, 2006, by and among LBH,
as
seller, HomEq Servicing Corporation, as servicer, and the Master
Servicer,
and acknowledged by the Trustee;
|
|
4.
|
Securitization
Servicing Agreement dated as of August 1, 2006, by and among LBH,
as
seller, JPMorgan Chase Bank, National Association, as servicer, and
the
Master Servicer, and acknowledged by the
Trustee;
|
|
5.
|
Securitization
Subservicing Agreement dated as of August 1, 2006, by and among LBH,
as
seller, GMAC Mortgage Corporation, as servicer, and the Master Servicer,
and acknowledged by the Trustee;
|
|
6.
|
Securitization
Servicing Agreement dated as of August 1, 2006, by and among LBH,
as
seller, Option One Mortgage Corporation, as servicer, and the Master
Servicer, and acknowledged by the Trustee;
|
|
7.
|
Securitization
Subservicing Agreement dated as of August 1, 2006, by and among LBH,
as
seller, Option One Mortgage Corporation, as servicer, and the Master
Servicer, and acknowledged by the Trustee;
|
|
8.
|
Securitization
Subservicing Agreement dated as of August 1, 2006, by and among LBH,
as
seller, ▇▇▇▇▇ Fargo Bank, N.A., as servicer, and the Master Servicer,
and
acknowledged by the Trustee.
|
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
Re:
Structured
Asset Securities Corporation Mortgage Loan
Mortgage
Pass-Through Certificates, Series 2006-BC2
Reference
is hereby made to the Trust Agreement dated as of August 1, 2006 (the “Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
U.S. Bank National Association, as Trustee, ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer and Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income Services Inc.,
as Credit Risk Manager. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Trust Agreement.
This
letter relates to $__________ initial Certificate Balance of Class
Certificates
which are held in the form of Definitive Certificates registered in the name
of
(the
“Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the name
of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer,” which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, 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 applicable
jurisdiction.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Placement Agent and the Depositor.
_____________________________________
[Name
of
Transferor]
By:__________________________________
Name:
Title:
Dated:
___________, ____
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTORS
Date
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
Structured Asset Securities Corporation Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2006-BC2, [Class
B1] [Class
B2]
Certificates (the “Privately Offered Certificates”) of the Structured Asset
Securities Corporation (the “Depositor”), we confirm that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended (the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if we
should
sell any Privately Offered Certificates within two years of the later
of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned by
the
Depositor or any affiliate of the Depositor (which includes the Placement
Agent) we will do so only (A) to the Depositor, (B) to “qualified
institutional buyers” (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities
Act
(“QIBs”), (C) pursuant to the exemption from registration provided by Rule
144 under the Securities Act, or (D) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an “Institutional
Accredited Investor”) which, prior to such transfer, delivers to the
Securities Administrator under the Trust Agreement dated as of August
1,
2006 by and among the Depositor, U.S. Bank National Association,
as
Trustee (the “Trustee”), ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and
Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income Services Inc.,
as
Credit Risk Manager, a signed letter in the form of this letter;
and we
further agree, in the capacities stated above, to provide to any
person
purchasing any of the Privately Offered Certificates from us a notice
advising such purchaser that resales of the Privately Offered Certificates
are restricted as stated herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Securities Administrator and the Depositor
a
certification from such transferee in the form hereof to confirm
that the
proposed sale is being made pursuant to an exemption from, or in
a
transaction not subject to, the registration requirements of the
Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing
effect.
|
G-1
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting are
each able
to bear the economic risk of such
investment.
|
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
|
(5)
|
We
have received such information as we deem necessary in order to make
our
investment decision.
|
|
(6)
|
If
we are acquiring ERISA-Restricted Certificates, we understand that
in
accordance with ERISA, the Code and the Exemption, no Plan and no
person
acting on behalf of such a Plan may acquire such Certificate except
in
accordance with Section 3.03(d) of the Trust
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
G-2
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceeding or official inquiry with respect to
the
matters covered hereby.
Very
truly yours,
__________________________________
[Purchaser]
By:
________________________________
Name:
Title:
G-3
EXHIBIT
H
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. In
the
case of an ERISA-Restricted Certificate, the Investor either (x) is not, and
on
__________________ [date of transfer] will not be, an employee benefit plan
or
other retirement arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Code”), (collectively, a “Plan”)
or a person acting on behalf of any such Plan or investing the assets of any
such Plan to acquire a Certificate; (y) if the Certificate has been the subject
of an ERISA-Qualifying Underwriting, is an insurance company that is purchasing
the Certificate with funds contained in an “insurance company general account”
as defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”)
95-60 and the purchase and holding of the Certificate are covered under Sections
I and III of PTCE 95-60; or (z) herewith delivers to the Securities
Administrator an opinion of counsel (a “Benefit Plan Opinion”) satisfactory to
the Securities Administrator, and upon which the Trustee, the Master Servicer,
any Servicer, the Securities Administrator, the Depositor and any NIMS Insurer
shall be entitled to rely, to the effect that the purchase or holding of such
Certificate by the Investor will not result in any non-exempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code and will not
subject the Trustee, the Depositor, the Master Servicer, any Servicer, the
Securities Administrator or any NIMS Insurer to any obligation in addition
to
those undertaken by such entities in the Trust Agreement, which opinion of
counsel shall not be an expense of the Trust Fund or any of the above
parties.
3. In
the
case of an ERISA-Restricted Trust Certificate, prior to the termination of
the
Swap Agreement and the Interest Rate Cap Agreement, either (i) the Investor
is
neither a Plan nor a person acting on behalf of any such Plan or using the
assets of any such Plan to effect such transfer or (ii) the acquisition and
holding of the ERISA-Restricted Trust Certificate are eligible for exemptive
relief under ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇▇ ▇▇ ▇▇▇▇
96-23.
H-1
4. The
Investor hereby acknowledges that under the terms of the Trust Agreement (the
“Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
U.S. Bank National Association, as Trustee, ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer and Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income Services Inc.,
as Credit Risk Manager, dated as of August 1, 2006, no transfer of the
ERISA-Restricted Certificates or the ERISA-Restricted Trust Certificates shall
be permitted to be made to any person unless the Securities Administrator have
received a certificate from such transferee in the form hereof.
H-2
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20___.
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
_____________________________
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
Personally
appeared before me the above-named ________________, known or proved to me
to be
the same person who executed the foregoing instrument and to be the
____________________ of the Investor, and acknowledged that he executed the
same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
______________________________
NOTARY
PUBLIC
My
commission expires the
_____
day
of __________, 20___.
H-3
EXHIBIT
I
MONTHLY
REMITTANCE ADVICE
I-1
EXHIBIT
J
MONTHLY
ELECTRONIC DATA TRANSMISSION
J-1
EXHIBIT
K
LIST
OF
CUSTODIAL AGREEMENTS
|
1.
|
Custodial
Agreement dated as of August 1, 2006 between Deutsche Bank National
Trust
Company, as Custodian, and U.S. Bank National Association, as
Trustee.
|
|
2.
|
Custodial
Agreement dated as of August 1, 2006 between LaSalle Bank National
Association, as Custodian, and U.S. Bank National Association, as
Trustee.
|
|
3.
|
Custodial
Agreement dated as of August 1, 2006 between U.S. Bank National
Association, as Custodian, and U.S. Bank National Association, as
Trustee.
|
|
4.
|
Custodial
Agreement dated as of August 1, 2006 between ▇▇▇▇▇ Fargo Bank, N.A.,
as
Custodian, and U.S. Bank National Association, as
Trustee.
|
K-1
EXHIBIT
L
LIST
OF
CREDIT RISK MANAGEMENT AGREEMENTS
|
1)
|
Credit
Risk Management Agreement dated August 30, 2006 between ▇▇▇▇▇▇▇ Fixed
Income Services Inc., as credit risk manager (the “Credit Risk Manager”)
and Aurora Loan Services LLC, as
servicer.
|
|
2)
|
Credit
Risk Management Agreement dated August 30, 2006 between the Credit
Risk
Manager and Countrywide Home Loans Servicing LP, as
servicer.
|
|
3)
|
Credit
Risk Management Agreement dated August 30, 2006 between the Credit
Risk
Manager and Option One Mortgage Corporation, as
servicer.
|
|
4)
|
Credit
Risk Management Agreement dated August 30, 2006 between the Credit
Risk
Manager and JPMorgan Chase Bank, National Association, as
servicer.
|
|
5)
|
Credit
Risk Management Agreement dated August 30, 2006 between the Credit
Risk
Manager and ▇▇▇▇▇ Fargo Bank, N.A., as
servicer.
|
|
6)
|
Credit
Risk Management Agreement dated August 30, 2006 between the Credit
Risk
Manager and HomEq Servicing Corporation, as
servicer.
|
|
7)
|
Credit
Risk Management Agreement dated August 30, 2006 between the Credit
Risk
Manager and GMAC Mortgage Corporation, as
servicer.
|
▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(B)
of
the
Agreement)
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan
Trust
|
Mortgage
Pass-Through Certificates Series 2006-BC2
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, ▇▇▇▇▇▇▇ Fixed Income Services Inc.,
as Credit Risk Manager, U.S. Bank National Association, as Trustee and ▇▇▇▇▇
Fargo Bank, N.A., as Master Servicer and Securities Administrator, dated as
of
August 1, 2006. Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted Global
Security with DTC in the name of [name of Transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904 of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any person acting on its behalf reasonably believed that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e.
the
transferee is not a U.S. person (as defined in Regulation S).
M-1-1
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(C)
of
the
Agreement)
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan
Trust
|
Mortgage
Pass-Through Certificates Series 2006-BC2
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, ▇▇▇▇▇▇▇ Fixed Income Services Inc.,
as Credit Risk Manager, U.S. Bank National Association, as Trustee and ▇▇▇▇▇
Fargo Bank, N.A., as Master Servicer and Securities Administrator, dated as
of
August 1, 2006. Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A,
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.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
M-2-1
EXHIBIT
N
Interest
Rate Cap Agreement
N-1
EXHIBIT
O
SWAP
AGREEMENT
▇-▇
▇▇▇▇▇▇▇
▇-▇
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Distribution Date Statement
|
Servicer(1)
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(2)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer(1)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
P-1-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Master
Servicer
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
P-1-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
_______________________
|
(1)
|
This
information to be provided pursuant to the applicable Servicing
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the applicable Custodial
Agreement.
|
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
P-2-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(1)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer(2)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
P-2-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
(1)
|
This
information to be provided pursuant to the applicable Custodial
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the applicable Servicing
Agreement.
|
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
|
▇▇▇▇
▇-▇ DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer(1)
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer(1)
|
|
▪
Other material servicers
|
Servicer(1)
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian(2)
|
P-3-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Trust Agreement.
|
Securities
Administrator
Trustee
(with respect to each, only to the extent it is a party to any such
documents)
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer(1)/Trustee
(as to itself)
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer(1)/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator
|
P-3-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
|
(1)
|
This
information to be provided pursuant to the applicable Servicing
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the applicable Custodial
Agreement.
|
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
ADDITIONAL
DISCLOSURE NOTIFICATION
▇▇▇▇▇
Fargo Bank, N.A., as Securities Administrator
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Trust Services - SASCO 2006-BC2 - SEC Report Processing
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Trust Agreement, dated as of August 1, 2006,
by and among Structured Asset Securities Corporation, as Depositor, ▇▇▇▇▇▇▇
Fixed Income Services Inc., as Credit Risk Manager, U.S. Bank National
Association, as Trustee and ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and
Securities Administrator, the undersigned, as [ ], hereby notifies you that
certain events have come to our attention that [will] [may] need to be disclosed
on Form [10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to
[ ],
phone number:
[ ];
email address:
[ ].
[NAME
OF PARTY],
as
[role]
By:
________________________________
Name:
Title:
P-4-1
|
cc:
|
U.S.
Bank National Association
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured
Asset Securities Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
P-4-2
EXHIBIT
Q-1
FORM
OF
BACK-UP ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
[ ]
[ ]
[ ]
|
Re:
|
SASCO
2006-BC2
|
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer and the Securities Administrator, and each of their
officers, directors and affiliates that:
(1) I
have
reviewed [the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),] the
report on assessment of the Company’s compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to any of the Depositor, the
Master Servicer and the Securities Administrator pursuant to the Agreement
(collectively, the “Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor, the
Master Servicer and the Securities Administrator;
(4) I
am
responsible for reviewing the activities performed by [_______] as [_______]
under the [_______] (the “Agreement”), and based on my knowledge [and the
compliance review conducted in preparing the Compliance Statement] and except
as
disclosed in [the Compliance Statement,] the Servicing Assessment or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
Q-1-1
(5) [The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and] [The] [the] Servicing Assessment and Attestation Report required
to be provided by the Company and [by any Subservicer or Subcontractor] pursuant
to the Agreement, have been provided to the Depositor, the Master Servicer
and
the Securities Administrator. Any material instances of noncompliance described
in such reports have been disclosed to the Depositor, the Master Servicer and
the Securities Administrator. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Trust Agreement, dated as of August 1, 2006 (the “Trust Agreement”) by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank National
Association, as Trustee, ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and
Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income Services Inc., as Credit
Risk
Manager. Capitalized terms used but not defined herein shall have the meanings
given to them in the Trust Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
Q-1-2
EXHIBIT
Q-2
FORM
OF
BACK-UP ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION TO BE PROVIDED BY THE SECURITIES
ADMINISTRATOR
|
Re:
|
Structured
Asset Investment Loan Trust Mortgage Pass-Through Certificates,
Series
2006-BC2 (the “Trust”),
issued pursuant to the Trust Agreement, dated as of August 1, 2006,
among
Structured Asset Securities Corporation, as Depositor, ▇▇▇▇▇ Fargo
Bank,
N.A., as Master Servicer and Securities Administrator, ▇▇▇▇▇▇▇
Fixed
Income Services Inc., as Credit
Risk Manager, and U.S. Bank National Association, as
Trustee
|
The
Securities Administrator hereby certifies to the Depositor and the Master
Servicer, and their respective officers, directors and affiliates, and with
the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the “Annual
Report”), and all reports on Form 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
(2) To
my
knowledge, (a)
the
Reports, taken as a whole, do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made,
in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by the Annual Report,
and (b)
the Securities Administrator’s assessment of compliance and related attestation
report referred to below, taken as a whole, do not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were
made, not misleading with respect to the period covered by such assessment
of
compliance and attestation report;
(3) To
my
knowledge, the distribution information required to be provided by the
Securities Administrator under the Trust Agreement for inclusion in the Reports
is included in the Reports;
(4) I
am
responsible for reviewing the activities performed by the Securities
Administrator under the Trust Agreement, and based on my knowledge and the
compliance review conducted in preparing the assessment of compliance of the
Securities Administrator required by the Trust Agreement, and except as
disclosed in the Reports, the Securities Administrator has fulfilled its
obligations under the Trust Agreement in all material respects; and
(5) The
report on assessment of compliance with servicing criteria applicable to the
Securities Administrator for asset-backed securities of the Securities
Administrator and each Subcontractor utilized by the Securities Administrator
and related attestation report on assessment of compliance with servicing
criteria applicable to it required to be included in the Annual Report in
accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 has been included as an exhibit to the Annual Report. Any material
instances of non-compliance are described in such report and have been disclosed
in the Annual Report.
Q-2-1
In
giving
the certifications above, the Securities Administrator has reasonably relied
on
information provided to it by the following unaffiliated parties: [names of
servicer(s), master servicer, subservicer(s), depositor, trustee,
custodian(s)]
Date:
[Signature]
[Title]
Q-2-2
EXHIBIT
R-1
FORM
OF
WATCHLIST REPORT
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
LOSS SEVERITY REPORT
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
MORTGAGE INSURANCE CLAIMS REPORT
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
PREPAYMENT PREMIUMS REPORT
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
ANALYTICS REPORT
R-5-1
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
To:
[_______]
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements. Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Trust Agreement dated as of August 1, 2006
(the
“Agreement”), by and among Structured Asset Securities Corporation, as
Depositor, U.S. Bank National Association, as Trustee, ▇▇▇▇▇ Fargo Bank, N.A.,
as Master Servicer and Securities Administrator, and ▇▇▇▇▇▇▇ Fixed Income
Services Inc., as Credit Risk Manager.
|
Reg
AB
Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk
Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
General Servicing
Considerations
|
||||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|
|
X
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||||
|
Cash Collection and Administration
|
||||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
S-1
|
Reg
AB
Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk
Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
||||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
S-2
|
Reg
AB
Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk
Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
Investor
Remittances and Reporting
|
||||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the Servicer.
|
X
|
X
|
X
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
|||
|
Pool
Asset Administration
|
||||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|
||||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|
||||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
||||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
S-3
|
Reg
AB
Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk
Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
|||||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
|||||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
|||||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
S-4
|
Reg
AB
Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk
Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
||||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
||||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
||||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
S-5
EXHIBIT
T
[RESERVED]
T-1
EXHIBIT
U
FORM
OF
CERTIFICATION
TO
BE
PROVIDED BY THE CREDIT RISK MANAGER
FORM
OF CERTIFICATION
Re:
Structured Asset Securities Corporation Mortgage Loan Trust Mortgage
Pass-Through Certificates Series 2006-BC2 issued pursuant to the Trust Agreement
dated as of August 1, 2006, among Structured Asset Securities Corporation,
as
Depositor (the “Depositor”), ▇▇▇▇▇▇▇ Fixed Income Services Inc., as Credit Risk
Manager, ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer (the “Master Servicer”) and
Securities Administrator (the “Securities Administrator”) and U.S. Bank National
Association, as Trustee (the “Trustee”).
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC. (the “Credit Risk Manager”) certifies to the
Depositor, the Sponsor, the Master Servicer, the Securities Administrator,
and
[10-K Signatory Entity] its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification,
that:
|
1.
|
Based
on the knowledge of the Credit Risk Manager, taken as a whole, the
information in the reports provided during the calendar year immediately
preceding the date of this certificate (the “Relevant Year”) by the Credit
Risk Manager pursuant to the Master Consulting Agreement dated as
of
January 28, 2004 (the
“Master Consulting Agreement”), by and between the Credit Risk Manager and
▇▇▇▇▇▇ Brothers Holdings Inc. and pursuant to Transaction Addendum
SASCO
2006-BC2 (the “Transaction Addendum SASCO 2006-BC2”), does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under
which such statements were made, not misleading as of the date that
each
of such reports was provided; and
|
|
2.
|
The
Credit Risk Manager has fulfilled its obligations under the Master
Consulting Agreement and Transaction Addendum SASCO 2006-BC2 throughout
the Relevant Year.
|
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC.
By:____________________________________
Name:_________________________________
Title:
_________________________________
U-1
EXHIBIT
V
TRANSACTION
PARTIES
Sponsor
and Seller: ▇▇▇▇▇▇ Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
U.S. Bank National Association
Securities
Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
Credit
Risk Manager: ▇▇▇▇▇▇▇ Fixed Income Services Inc.
PMI
Insurer(s): Mortgage Guaranty Insurance Corporation and PMI Mortgage Insurance
Co.
Swap
Counterparty: HSBC Bank USA, National Association
Cap
Counterparty: HSBC Bank USA, National Association
Servicer(s):
Aurora Loan Services LLC, Countrywide Home Loans Servicing LP, GMAC Mortgage
Corporation, HomEq Servicing Corporation, JPMorgan Chase Bank, National
Association, Option One Mortgage Corporation and ▇▇▇▇▇ Fargo Bank,
N.A.
Originator(s):
BNC Mortgage, Inc., People’s Choice Home Loans, Inc., Countrywide Home Loans,
Inc., ▇▇▇▇▇▇ Brothers Bank, FSB and Finance
America, LLC.
Custodian(s):
Deutsche Bank National Trust Company, LaSalle Bank National Association, U.S.
Bank National Association and ▇▇▇▇▇ Fargo Bank, N.A.
V-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “SASCO 2006-BC2 Mortgage Loan
Schedules” at ▇▇▇▇▇ ▇▇▇▇▇▇ LLP]
Schedule
A-1