MORTGAGEIT SECURITIES CORP. Depositor WELLS FARGO BANK, NATIONAL ASSOCIATION a Servicer WELLS FARGO BANK, NATIONAL ASSOCIATION Master Servicer and Securities Administrator HSBC BANK USA, NATIONAL ASSOCIATION Trustee POOLING AND SERVICING AGREEMENT...
MORTGAGEIT
SECURITIES CORP.
Depositor
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
a
Servicer
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
Master
Servicer and Securities Administrator
HSBC
BANK
USA, NATIONAL ASSOCIATION
Trustee
Dated
as
of August 1, 2007
Mortgage
Pass-Through Certificates
TABLE
OF
CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
9
|
|
SECTION
1.01.
|
Defined
Terms.
|
9
|
|
SECTION
1.02.
|
Allocation
of Certain Interest Shortfalls.
|
65
|
|
ARTICLE
II
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
66
|
|
SECTION
2.01.
|
Conveyance
of the Mortgage Loans.
|
66
|
|
SECTION
2.02.
|
Acceptance
of REMIC I by Trustee.
|
67
|
|
SECTION
2.03.
|
Repurchase
or Substitution of Mortgage Loans.
|
68
|
|
SECTION
2.04.
|
Representations
and Warranties of the Master Servicer.
|
71
|
|
SECTION
2.05.
|
Representations,
Warranties and Covenants of ▇▇▇▇▇ Fargo.
|
72
|
|
SECTION
2.06.
|
Issuance
of the REMIC I Regular Interests and the Class R-I
Interest.
|
74
|
|
SECTION
2.07.
|
Conveyance
of the REMIC I Regular Interests; Acceptance of REMIC II and REMIC
III by
the Trustee.
|
74
|
|
SECTION
2.08.
|
[Reserved].
|
75
|
|
SECTION
2.09.
|
Establishment
of the Trust.
|
75
|
|
SECTION
2.10.
|
Purpose
and Powers of the Trust.
|
75
|
|
SECTION
2.11.
|
Representations
and Warranties of the Trustee.
|
76
|
|
ARTICLE
III
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS; ACCOUNTS
|
77
|
|
SECTION
3.01.
|
The
Servicer to Act as Servicer.
|
77
|
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between the Servicer and Sub-Servicers.
|
80
|
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
81
|
|
SECTION
3.04.
|
No
Contractual Relationship Between Sub-Servicer, Subcontractor, Trustee
or
the Certificateholders.
|
81
|
|
SECTION
3.05.
|
Assumption
or Termination of Sub-Servicing Agreement by Successor
Servicer.
|
82
|
|
SECTION
3.06.
|
Collection
of Certain Mortgage Loan Payments.
|
82
|
|
SECTION
3.07.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
83
|
|
SECTION
3.08.
|
Collection
Account and Distribution Account.
|
84
|
|
SECTION
3.09.
|
Withdrawals
from the Collection Account and Distribution Account.
|
86
|
|
SECTION
3.10.
|
Investment
of Funds in the Investment Accounts.
|
88
|
|
SECTION
3.11.
|
Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage
and
Primary Mortgage Insurance.
|
90
|
|
SECTION
3.12.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements
|
92
|
|
SECTION
3.13.
|
Realization
Upon Defaulted Mortgage Loans.
|
93
|
|
SECTION
3.14.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
95
|
|
SECTION
3.15.
|
Servicing
Compensation.
|
97
|
|
SECTION
3.16.
|
Collection
Account Statements.
|
97
|
|
SECTION
3.17.
|
Annual
Statement as to Compliance.
|
97
|
i
|
SECTION
3.18.
|
Assessments
of Compliance and Attestation Reports.
|
98
|
|
SECTION
3.19.
|
Annual
Certification; Additional Information.
|
100
|
|
SECTION
3.20.
|
Access
to Certain Documentation.
|
101
|
|
SECTION
3.21.
|
Title,
Management and Disposition of REO Property.
|
102
|
|
SECTION
3.22.
|
Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls; Relief
Act
Interest Shortfalls.
|
105
|
|
SECTION
3.23.
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
105
|
|
SECTION
3.24.
|
[Reserved].
|
105
|
|
SECTION
3.25.
|
Advance
Facility.
|
105
|
|
SECTION
3.26.
|
Indemnification.
|
107
|
|
SECTION
3.27.
|
Transfer
to a Special Servicer; Purchase of Delinquent Mortgage
Loans.
|
108
|
|
ARTICLE
IV
|
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE MASTER
SERVICER
|
109
|
|
SECTION
4.01.
|
Master
Servicer.
|
109
|
|
SECTION
4.02.
|
REMIC-Related
Covenants.
|
110
|
|
SECTION
4.03.
|
Monitoring
of Servicers.
|
110
|
|
SECTION
4.04.
|
Fidelity
Bond.
|
111
|
|
SECTION
4.05.
|
Power
to Act; Procedures.
|
112
|
|
SECTION
4.06.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
113
|
|
SECTION
4.07.
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
113
|
|
SECTION
4.08.
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
113
|
|
SECTION
4.09.
|
Presentment
of Claims and Collection of Proceeds.
|
114
|
|
SECTION
4.10.
|
Maintenance
of Primary Mortgage Insurance Policies.
|
114
|
|
SECTION
4.11.
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
114
|
|
SECTION
4.12.
|
Realization
Upon Defaulted Mortgage Loans.
|
115
|
|
SECTION
4.13.
|
Compensation
for the Master Servicer.
|
115
|
|
SECTION
4.14.
|
REO
Property.
|
115
|
|
SECTION
4.15.
|
Master
Servicer Annual Statement of Compliance.
|
116
|
|
SECTION
4.16.
|
Master
Servicer Assessments of Compliance.
|
117
|
|
SECTION
4.17.
|
Master
Servicer Attestation Reports.
|
118
|
|
SECTION
4.18.
|
Annual
Certification.
|
119
|
|
SECTION
4.19.
|
Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
120
|
|
ARTICLE
V
|
PAYMENTS
TO CERTIFICATEHOLDERS
|
121
|
|
SECTION
5.01.
|
Distributions.
|
121
|
|
SECTION
5.02.
|
Statements
to Certificateholders.
|
128
|
|
SECTION
5.03.
|
Servicer
Reports; P&I Advances.
|
131
|
|
SECTION
5.04.
|
Allocation
of Realized Losses.
|
132
|
|
SECTION
5.05.
|
Compliance
with Withholding Requirements.
|
134
|
|
SECTION
5.06.
|
Reports
Filed with Securities and Exchange Commission.
|
134
|
ii
|
SECTION
5.07.
|
Supplemental
Interest Trust.
|
140
|
|
SECTION
5.08.
|
Tax
Treatment of Swap Payments and Swap Termination Payments.
|
142
|
|
SECTION
5.09.
|
Swap
Collateral Account.
|
143
|
|
ARTICLE
VI
|
THE
CERTIFICATES
|
145
|
|
SECTION
6.01.
|
The
Certificates.
|
145
|
|
SECTION
6.02.
|
Registration
of Transfer and Exchange of Certificates.
|
147
|
|
SECTION
6.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
152
|
|
SECTION
6.04.
|
Persons
Deemed Owners.
|
152
|
|
SECTION
6.05.
|
Certain
Available Information.
|
153
|
|
ARTICLE
VII
|
THE
DEPOSITOR, THE SERVICER AND THE MASTER SERVICER
|
154
|
|
SECTION
7.01.
|
Liability
of the Depositor, the Servicer and the Master Servicer.
|
154
|
|
SECTION
7.02.
|
Merger
or Consolidation of the Depositor, the Servicer or the Master
Servicer.
|
154
|
|
SECTION
7.03.
|
Limitation
on Liability of the Depositor, the Servicer, the Master Servicer
and
Others.
|
154
|
|
SECTION
7.04.
|
Limitation
on Resignation of the Servicer.
|
155
|
|
SECTION
7.05.
|
Limitation
on Resignation of the Master Servicer.
|
157
|
|
SECTION
7.06.
|
Assignment
of Master Servicing.
|
157
|
|
SECTION
7.07.
|
Rights
of the Depositor in Respect of the Servicer and the Master
Servicer.
|
157
|
|
SECTION
7.08.
|
Duties
of the Credit Risk Manager.
|
158
|
|
SECTION
7.09.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
159
|
|
SECTION
7.10.
|
Removal
of the Credit Risk Manager.
|
159
|
|
SECTION
7.11.
|
Transfer
of Servicing by Sponsor to a Special Servicer.
|
159
|
|
ARTICLE
VIII
|
DEFAULT
|
161
|
|
SECTION
8.01.
|
Servicer
Events of Default.
|
161
|
|
SECTION
8.02.
|
Master
Servicer to Act; Appointment of Successor.
|
166
|
|
SECTION
8.03.
|
Notification
to Certificateholders.
|
168
|
|
SECTION
8.04.
|
Waiver
of Servicer Events of Default.
|
168
|
|
ARTICLE
IX
|
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
169
|
|
SECTION
9.01.
|
Duties
of Trustee and Securities Administrator.
|
169
|
|
SECTION
9.02.
|
Certain
Matters Affecting Trustee and Securities Administrator.
|
170
|
|
SECTION
9.03.
|
Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
|
173
|
|
SECTION
9.04.
|
Trustee
and Securities Administrator May Own Certificates.
|
174
|
|
SECTION
9.05.
|
Fees
and Expenses of Trustee, Custodian and Securities
Administrator.
|
174
|
|
SECTION
9.06.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
175
|
|
SECTION
9.07.
|
Resignation
and Removal of Trustee and Securities Administrator.
|
175
|
|
SECTION
9.08.
|
Successor
Trustee or Securities Administrator.
|
176
|
|
SECTION
9.09.
|
Merger
or Consolidation of Trustee or Securities Administrator.
|
177
|
iii
|
SECTION
9.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
177
|
|
SECTION
9.11.
|
Appointment
of Office or Agency.
|
178
|
|
SECTION
9.12.
|
Representations
and Warranties.
|
179
|
|
ARTICLE
X
|
▇▇▇▇▇▇▇▇▇▇▇
|
▇▇▇
|
|
▇▇▇▇▇▇▇
▇▇.▇▇.
|
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or Liquidation of All Mortgage Loans.
|
180
|
|
SECTION
10.02.
|
Additional
Termination Requirements.
|
182
|
|
ARTICLE
XI
|
REMIC
PROVISIONS
|
184
|
|
SECTION
11.01.
|
REMIC
Administration.
|
184
|
|
SECTION
11.02.
|
Prohibited
Transactions and Activities.
|
187
|
|
SECTION
11.03.
|
Indemnification.
|
187
|
|
ARTICLE
XII
|
MISCELLANEOUS
PROVISIONS
|
189
|
|
SECTION
12.01.
|
Amendment.
|
189
|
|
SECTION
12.02.
|
Recordation
of Agreement; Counterparts.
|
190
|
|
SECTION
12.03.
|
Limitation
on Rights of Certificateholders.
|
191
|
|
SECTION
12.04.
|
Governing
Law.
|
191
|
|
SECTION
12.05.
|
Notices.
|
191
|
|
SECTION
12.06.
|
Severability
of Provisions.
|
192
|
|
SECTION
12.07.
|
Notice
to Rating Agencies.
|
192
|
|
SECTION
12.08.
|
Article
and Section References.
|
193
|
|
SECTION
12.09.
|
Grant
of Security Interest.
|
193
|
|
SECTION
12.10.
|
Survival
of Indemnification.
|
194
|
|
SECTION
12.11.
|
Servicing
Agreement.
|
194
|
|
SECTION
12.12.
|
Intention
of the Parties and Interpretation.
|
194
|
|
SECTION
12.13.
|
Indemnification.
|
195
|
|
SECTION
12.14.
|
The
Swap Provider and Designated Entity as Third Party
Beneficiaries.
|
195
|
iv
Exhibits
|
Form
of Class A-[1][2] Certificate
|
||
|
Exhibit
A-2
|
Form
of Class B-[1][2][3] Certificate
|
|
|
Exhibit
A-3
|
Form
of Class B-[4][5][6] Certificate
|
|
|
Exhibit
A-4
|
Form
of Class R Certificate
|
|
|
Exhibit
B-1
|
Form
of Transferor Representation Letter and Form of Transferee Representation
Letter in Connection with Transfer of the Residual Certificates Pursuant
to Rule 144A Under the Securities Act
|
|
|
Exhibit
B-2
|
Form
of Transferor Representation Letter and Form of Transferee Representation
Letter in Connection with Transfer of the Residual Certificates Pursuant
to Rule 501(a) Under the Securities Act
|
|
|
Exhibit
B-3
|
Form
of Transfer Affidavit and Agreement and Form of Transferor Affidavit
in
Connection with Transfer of Residual Certificates
|
|
|
Exhibit
C-1
|
Form
of Back-Up Certification
|
|
|
Exhibit
C-2
|
Annual
Independent Public Accountants’ Servicing Report
|
|
|
Exhibit
D
|
Form
of Power of Attorney
|
|
|
Exhibit
E
|
Servicing
Criteria
|
|
|
Exhibit
F
|
Mortgage
Loan Purchase Agreement
|
|
|
Exhibit
G
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
|
Exhibit
H
|
Additional
Disclosure Notification
|
|
|
Exhibit
I
|
Class
A Swap Agreement
|
|
|
Exhibit
J
|
Assignment
Agreement and Servicing Agreement
|
|
|
Schedule
1
|
Mortgage
Loan Schedule
|
|
|
Schedule
2
|
Reserved
|
|
|
Schedule
3
|
Reserved
|
|
|
Schedule
4
|
Standard
File Layout - Delinquency Reporting and Realized Losses and
Gains
|
|
|
Standard
File Layout - Master Servicing
|
||
|
Schedule
6
|
Data
Requirements of Servicing Advances Incurred Prior to Cut-off
Date
|
v
This
Pooling and Servicing Agreement, is dated and effective as of August 1,
2007, among MORTGAGEIT SECURITIES CORP., as Depositor, ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as a Servicer, ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer and Securities Administrator and HSBC BANK USA, NATIONAL
ASSOCIATION, as Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest of the Trust Fund created hereunder. The Trust Fund will
consist of a segregated pool of assets comprised of nine classes of
Certificates, designated as Class A-1, Class A-2, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5, Class B-6 and Class R Certificates, the Mortgage
Loans and certain other related assets subject to this Agreement.
REMIC
I
As
provided herein, the Securities Administrator will elect to treat the segregated
pool of assets consisting of the Mortgage Loans and certain other related assets
subject to this Agreement (other than, for the avoidance of doubt, the
Supplemental Interest Trust and the Class A Swap Agreement) as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC I”. The Class R-I Interest will be the sole class of
“residual interests” in REMIC I for purposes of the REMIC Provisions (as defined
herein). The following table irrevocably sets forth the designation, the REMIC
I
Remittance Rate, the initial Uncertificated Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest
possible maturity date” for each of the REMIC I Regular Interests (as defined
herein). None of the REMIC I Regular Interests will be
certificated.
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||||
|
IA
|
Variable
|
(2)
|
$
|
100,021,139.06
|
September
25, 2037
|
|||||
|
I-1-A
|
Variable
|
(2)
|
$
|
931,201.35
|
September
25, 2037
|
|||||
|
I-1-B
|
Variable
|
(2)
|
$
|
931,201.35
|
September
25, 2037
|
|||||
|
I-2-A
|
Variable
|
(2)
|
$
|
1,152,631.00
|
September
25, 2037
|
|||||
|
I-2-B
|
Variable
|
(2)
|
$
|
1,152,631.00
|
September
25, 2037
|
|||||
|
I-3-A
|
Variable
|
(2)
|
$
|
1,373,638.64
|
September
25, 2037
|
|||||
|
I-3-B
|
Variable
|
(2)
|
$
|
1,373,638.64
|
September
25, 2037
|
|||||
|
I-4-A
|
Variable
|
(2)
|
$
|
1,593,887.43
|
September
25, 2037
|
|||||
|
I-4-B
|
Variable
|
(2)
|
$
|
1,593,887.43
|
September
25, 2037
|
|||||
|
I-5-A
|
Variable
|
(2)
|
$
|
1,813,039.06
|
September
25, 2037
|
|||||
|
I-5-B
|
Variable
|
(2)
|
$
|
1,813,039.06
|
September
25, 2037
|
|||||
|
I-6-A
|
Variable
|
(2)
|
$
|
2,030,754.54
|
September
25, 2037
|
|||||
|
I-6-B
|
Variable
|
(2)
|
$
|
2,030,754.54
|
September
25, 2037
|
|||||
|
I-7-A
|
Variable
|
(2)
|
$
|
2,246,695.07
|
September
25, 2037
|
|||||
|
I-7-B
|
Variable
|
(2)
|
$
|
2,246,695.07
|
September
25, 2037
|
|||||
|
I-8-A
|
Variable
|
(2)
|
$
|
2,460,522.82
|
September
25, 2037
|
|||||
|
I-8-B
|
Variable
|
(2)
|
$
|
2,460,522.82
|
September
25, 2037
|
|||||
|
I-9-A
|
Variable
|
(2)
|
$
|
2,671,901.95
|
September
25, 2037
|
|||||
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||||
|
I-9-B
|
Variable
|
(2)
|
$
|
2,671,901.95
|
September
25, 2037
|
|||||
|
I-10-A
|
Variable
|
(2)
|
$
|
2,880,499.27
|
September
25, 2037
|
|
||||
|
I-10-B
|
Variable
|
(2)
|
$
|
2,880,499.27
|
September
25, 2037
|
|||||
|
I-11-A
|
Variable
|
(2)
|
$
|
3,085,985.31
|
September
25, 2037
|
|||||
|
I-11-B
|
Variable
|
(2)
|
$
|
3,085,985.31
|
September
25, 2037
|
|||||
|
I-12-A
|
Variable
|
(2)
|
$
|
3,288,035.02
|
September
25, 2037
|
|||||
|
I-12-B
|
Variable
|
(2)
|
$
|
3,288,035.02
|
September
25, 2037
|
|||||
|
I-13-A
|
Variable
|
(2)
|
$
|
3,486,328.81
|
September
25, 2037
|
|||||
|
I-13-B
|
Variable
|
(2)
|
$
|
3,486,328.81
|
September
25, 2037
|
|||||
|
I-14-A
|
Variable
|
(2)
|
$
|
3,680,553.22
|
September
25, 2037
|
|||||
|
I-14-B
|
Variable
|
(2)
|
$
|
3,680,553.22
|
September
25, 2037
|
|||||
|
I-15-A
|
Variable
|
(2)
|
$
|
3,870,401.94
|
September
25, 2037
|
|||||
|
I-15-B
|
Variable
|
(2)
|
$
|
3,870,401.94
|
September
25, 2037
|
|||||
|
I-16-A
|
Variable
|
(2)
|
$
|
4,055,576.53
|
September
25, 2037
|
|||||
|
I-16-B
|
Variable
|
(2)
|
$
|
4,055,576.53
|
September
25, 2037
|
|||||
|
I-17-A
|
Variable
|
(2)
|
$
|
4,235,787.36
|
September
25, 2037
|
|||||
|
I-17-B
|
Variable
|
(2)
|
$
|
4,235,787.36
|
September
25, 2037
|
|||||
|
I-18-A
|
Variable
|
(2)
|
$
|
4,410,754.25
|
September
25, 2037
|
|||||
|
I-18-B
|
Variable
|
(2)
|
$
|
4,410,754.25
|
September
25, 2037
|
|||||
|
I-19-A
|
Variable
|
(2)
|
$
|
4,580,207.39
|
September
25, 2037
|
|||||
|
I-19-B
|
Variable
|
(2)
|
$
|
4,580,207.39
|
September
25, 2037
|
|||||
|
I-20-A
|
Variable
|
(2)
|
$
|
4,743,888.08
|
September
25, 2037
|
|||||
|
I-20-B
|
Variable
|
(2)
|
$
|
4,743,888.08
|
September
25, 2037
|
|||||
|
I-21-A
|
Variable
|
(2)
|
$
|
4,901,549.37
|
September
25, 2037
|
|||||
|
I-21-B
|
Variable
|
(2)
|
$
|
4,901,549.37
|
September
25, 2037
|
|||||
|
I-22-A
|
Variable
|
(2)
|
$
|
5,052,956.82
|
September
25, 2037
|
|||||
|
I-22-B
|
Variable
|
(2)
|
$
|
5,052,956.82
|
September
25, 2037
|
|||||
|
I-23-A
|
Variable
|
(2)
|
$
|
5,197,889.19
|
September
25, 2037
|
|||||
|
I-23-B
|
Variable
|
(2)
|
$
|
5,197,889.19
|
September
25, 2037
|
|||||
|
I-24-A
|
Variable
|
(2)
|
$
|
5,336,138.99
|
September
25, 2037
|
|||||
|
I-24-B
|
Variable
|
(2)
|
$
|
5,336,138.99
|
September
25, 2037
|
|||||
|
I-25-A
|
Variable
|
(2)
|
$
|
5,467,513.10
|
September
25, 2037
|
|||||
|
I-25-B
|
Variable
|
(2)
|
$
|
5,467,513.10
|
September
25, 2037
|
|
||||
|
I-26-A
|
|
Variable
|
(2)
|
$
|
5,591,833.35
|
September
25, 2037
|
||||
|
I-26-B
|
Variable
|
(2)
|
$
|
5,591,833.35
|
September
25, 2037
|
|||||
|
I-27-A
|
Variable
|
(2)
|
$
|
5,708,936.96
|
September
25, 2037
|
|||||
|
I-27-B
|
Variable
|
(2)
|
$
|
5,708,936.96
|
September
25, 2037
|
|||||
|
I-28-A
|
Variable
|
(2)
|
$
|
5,813,444.41
|
September
25, 2037
|
|||||
|
I-28-B
|
Variable
|
(2)
|
$
|
5,813,444.41
|
September
25, 2037
|
|||||
|
I-29-A
|
Variable
|
(2)
|
$
|
5,715,585.73
|
September
25, 2037
|
|||||
|
I-29-B
|
Variable
|
(2)
|
$
|
5,715,585.73
|
September
25, 2037
|
|||||
|
I-30-A
|
Variable
|
(2)
|
$
|
5,618,595.36
|
September
25, 2037
|
|||||
|
I-30-B
|
Variable
|
(2)
|
$
|
5,618,595.36
|
September
25, 2037
|
|||||
|
I-31-A
|
Variable
|
(2)
|
$
|
5,523,225.43
|
September
25, 2037
|
|||||
|
I-31-B
|
Variable
|
(2)
|
$
|
5,523,225.43
|
September
25, 2037
|
|||||
|
I-32-A
|
Variable
|
(2)
|
$
|
5,429,448.97
|
September
25, 2037
|
|||||
2
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||||
|
I-32-B
|
Variable
|
(2)
|
$
|
5,429,448.97
|
September
25, 2037
|
|||||
|
I-33-A
|
Variable
|
(2)
|
$
|
5,337,239.50
|
September
25, 2037
|
|||||
|
I-33-B
|
Variable
|
(2)
|
$
|
5,337,239.50
|
September
25, 2037
|
|||||
|
I-34-A
|
Variable
|
(2)
|
$
|
5,246,570.94
|
September
25, 2037
|
|||||
|
I-34-B
|
Variable
|
(2)
|
$
|
5,246,570.94
|
September
25, 2037
|
|||||
|
I-35-A
|
Variable
|
(2)
|
$
|
5,157,417.68
|
September
25, 2037
|
|||||
|
I-35-B
|
Variable
|
(2)
|
$
|
5,157,417.68
|
September
25, 2037
|
|||||
|
I-36-A
|
Variable
|
(2)
|
$
|
5,069,754.49
|
September
25, 2037
|
|||||
|
I-36-B
|
Variable
|
(2)
|
$
|
5,069,754.49
|
September
25, 2037
|
|||||
|
I-37-A
|
Variable
|
(2)
|
$
|
4,983,556.60
|
September
25, 2037
|
|||||
|
I-37-B
|
Variable
|
(2)
|
$
|
4,983,556.60
|
September
25, 2037
|
|||||
|
I-38-A
|
Variable
|
(2)
|
$
|
4,898,799.61
|
September
25, 2037
|
|||||
|
I-38-B
|
Variable
|
(2)
|
$
|
4,898,799.61
|
September
25, 2037
|
|||||
|
I-39-A
|
Variable
|
(2)
|
$
|
4,815,459.58
|
September
25, 2037
|
|||||
|
I-39-B
|
Variable
|
(2)
|
$
|
4,815,459.58
|
September
25, 2037
|
|||||
|
I-40-A
|
Variable
|
(2)
|
$
|
4,733,512.90
|
September
25, 2037
|
|||||
|
I-40-B
|
Variable
|
(2)
|
$
|
4,733,512.90
|
September
25, 2037
|
|||||
|
I-41-A
|
Variable
|
(2)
|
$
|
4,652,936.38
|
September
25, 2037
|
|||||
|
I-41-B
|
Variable
|
(2)
|
$
|
4,652,936.38
|
September
25, 2037
|
|||||
|
I-42-A
|
Variable
|
(2)
|
$
|
4,573,707.23
|
September
25, 2037
|
|
||||
|
I-42-B
|
Variable
|
(2)
|
$
|
4,573,707.23
|
September
25, 2037
|
|||||
|
I-43-A
|
Variable
|
(2)
|
$
|
4,495,803.03
|
September
25, 2037
|
|||||
|
I-43-B
|
Variable
|
(2)
|
$
|
4,495,803.03
|
September
25, 2037
|
|||||
|
I-44-A
|
Variable
|
(2)
|
$
|
4,419,201.69
|
September
25, 2037
|
|||||
|
I-44-B
|
Variable
|
(2)
|
$
|
4,419,201.69
|
September
25, 2037
|
|||||
|
I-45-A
|
Variable
|
(2)
|
$
|
4,343,881.57
|
September
25, 2037
|
|||||
|
I-45-B
|
Variable
|
(2)
|
$
|
4,343,881.57
|
September
25, 2037
|
|||||
|
I-46-A
|
Variable
|
(2)
|
$
|
4,269,821.30
|
September
25, 2037
|
|||||
|
I-46-B
|
Variable
|
(2)
|
$
|
4,269,821.30
|
September
25, 2037
|
|||||
|
I-47-A
|
Variable
|
(2)
|
$
|
4,196,999.91
|
September
25, 2037
|
|||||
|
I-47-B
|
Variable
|
(2)
|
$
|
4,196,999.91
|
September
25, 2037
|
|||||
|
I-48-A
|
Variable
|
(2)
|
$
|
4,125,396.79
|
September
25, 2037
|
|
||||
|
I-48-B
|
Variable
|
(2)
|
$
|
4,125,396.79
|
September
25, 2037
|
|||||
|
I-49-A
|
Variable
|
(2)
|
$
|
4,054,991.62
|
September
25, 2037
|
|||||
|
I-49-B
|
Variable
|
(2)
|
$
|
4,054,991.62
|
September
25, 2037
|
|||||
|
I-50-A
|
Variable
|
(2)
|
$
|
3,985,764.47
|
September
25, 2037
|
|||||
|
I-50-B
|
Variable
|
(2)
|
$
|
3,985,764.47
|
September
25, 2037
|
|||||
|
I-51-A
|
Variable
|
(2)
|
$
|
3,917,695.70
|
September
25, 2037
|
|||||
|
I-51-B
|
Variable
|
(2)
|
$
|
3,917,695.70
|
September
25, 2037
|
|||||
|
I-52-A
|
Variable
|
(2)
|
$
|
3,850,766.03
|
September
25, 2037
|
|||||
|
I-52-B
|
Variable
|
(2)
|
$
|
3,850,766.03
|
September
25, 2037
|
|||||
|
I-53-A
|
Variable
|
(2)
|
$
|
3,784,956.47
|
September
25, 2037
|
|||||
|
I-53-B
|
Variable
|
(2)
|
$
|
3,784,956.47
|
September
25, 2037
|
|||||
|
I-54-A
|
Variable
|
(2)
|
$
|
3,720,248.37
|
September
25, 2037
|
|||||
|
I-54-B
|
Variable
|
(2)
|
$
|
3,720,248.37
|
September
25, 2037
|
|||||
|
I-55-A
|
Variable
|
(2)
|
$
|
3,656,623.35
|
September
25, 2037
|
|||||
3
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||||
|
I-55-B
|
Variable
|
(2)
|
$
|
3,656,623.35
|
September
25, 2037
|
|||||
|
I-56-A
|
Variable
|
(2)
|
$
|
3,594,063.40
|
September
25, 2037
|
|||||
|
I-56-B
|
Variable
|
(2)
|
$
|
3,594,063.40
|
September
25, 2037
|
|||||
|
I-57-A
|
Variable
|
(2)
|
$
|
3,532,550.73
|
September
25, 2037
|
|||||
|
I-57-B
|
Variable
|
(2)
|
$
|
3,532,550.73
|
September
25, 2037
|
|||||
|
I-58-A
|
Variable
|
(2)
|
$
|
3,472,067.90
|
September
25, 2037
|
|||||
|
I-58-B
|
Variable
|
(2)
|
$
|
3,472,067.90
|
September
25, 2037
|
|||||
|
I-59-A
|
Variable
|
(2)
|
$
|
3,412,597.75
|
September
25, 2037
|
|||||
|
I-59-B
|
Variable
|
(2)
|
$
|
3,412,597.75
|
September
25, 2037
|
|||||
|
I-60-A
|
Variable
|
(2)
|
$
|
3,354,123.38
|
September
25, 2037
|
|||||
|
I-60-B
|
Variable
|
(2)
|
$
|
3,354,123.38
|
September
25, 2037
|
|||||
|
I-61-A
|
Variable
|
(2)
|
$
|
3,176,836.91
|
September
25, 2037
|
|||||
|
I-61-B
|
Variable
|
(2)
|
$
|
3,176,836.91
|
September
25, 2037
|
|||||
|
I-62-A
|
Variable
|
(2)
|
$
|
3,121,117.76
|
September
25, 2037
|
|||||
|
I-62-B
|
Variable
|
(2)
|
$
|
3,121,117.76
|
September
25, 2037
|
|||||
|
I-63-A
|
Variable
|
(2)
|
$
|
3,066,342.63
|
September
25, 2037
|
|||||
|
I-63-B
|
Variable
|
(2)
|
$
|
3,066,342.63
|
September
25, 2037
|
|||||
|
I-64-A
|
Variable
|
(2)
|
$
|
3,012,495.74
|
September
25, 2037
|
|||||
|
I-64-B
|
Variable
|
(2)
|
$
|
3,012,495.74
|
September
25, 2037
|
|||||
|
I-65-A
|
Variable
|
(2)
|
$
|
2,959,561.57
|
September
25, 2037
|
|||||
|
I-65-B
|
Variable
|
(2)
|
$
|
2,959,561.57
|
September
25, 2037
|
|||||
|
I-66-A
|
Variable
|
(2)
|
$
|
2,907,524.87
|
September
25, 2037
|
|||||
|
I-66-B
|
Variable
|
(2)
|
$
|
2,907,524.87
|
September
25, 2037
|
|||||
|
I-67-A
|
Variable
|
(2)
|
$
|
2,856,370.65
|
September
25, 2037
|
|||||
|
I-67-B
|
Variable
|
(2)
|
$
|
2,856,370.65
|
September
25, 2037
|
|||||
|
I-68-A
|
Variable
|
(2)
|
$
|
2,806,084.13
|
September
25, 2037
|
|||||
|
I-68-B
|
Variable
|
(2)
|
$
|
2,806,084.13
|
September
25, 2037
|
|||||
|
I-69-A
|
Variable
|
(2)
|
$
|
2,756,650.85
|
September
25, 2037
|
|||||
|
I-69-B
|
Variable
|
(2)
|
$
|
2,756,650.85
|
September
25, 2037
|
|||||
|
I-70-A
|
Variable
|
(2)
|
$
|
2,708,056.52
|
September
25, 2037
|
|||||
|
I-70-B
|
Variable
|
(2)
|
$
|
2,708,056.52
|
September
25, 2037
|
|||||
|
I-71-A
|
Variable
|
(2)
|
$
|
2,660,287.10
|
September
25, 2037
|
|||||
|
I-71-B
|
Variable
|
(2)
|
$
|
2,660,287.10
|
September
25, 2037
|
|||||
|
I-72-A
|
Variable
|
(2)
|
$
|
2,613,328.83
|
September
25, 2037
|
|||||
|
I-72-B
|
Variable
|
(2)
|
$
|
2,613,328.83
|
September
25, 2037
|
|||||
|
I-73-A
|
Variable
|
(2)
|
$
|
2,529,967.89
|
September
25, 2037
|
|||||
|
I-73-B
|
Variable
|
(2)
|
$
|
2,529,967.89
|
September
25, 2037
|
|||||
|
I-74-A
|
Variable
|
(2)
|
$
|
2,485,093.10
|
September
25, 2037
|
|||||
|
I-74-B
|
Variable
|
(2)
|
$
|
2,485,093.10
|
September
25, 2037
|
|||||
|
I-75-A
|
Variable
|
(2)
|
$
|
2,440,985.02
|
September
25, 2037
|
|||||
|
I-75-B
|
Variable
|
(2)
|
$
|
2,440,985.02
|
September
25, 2037
|
|||||
|
I-76-A
|
Variable
|
(2)
|
$
|
2,397,630.75
|
September
25, 2037
|
|||||
|
I-76-B
|
Variable
|
(2)
|
$
|
2,397,630.75
|
September
25, 2037
|
|||||
|
I-77-A
|
Variable
|
(2)
|
$
|
2,355,017.67
|
September
25, 2037
|
|||||
|
I-77-B
|
Variable
|
(2)
|
$
|
2,355,017.67
|
September
25, 2037
|
|||||
|
I-78-A
|
Variable
|
(2)
|
$
|
2,313,133.33
|
September
25, 2037
|
|||||
4
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||||
|
I-78-B
|
Variable
|
(2)
|
$
|
2,313,133.33
|
September
25, 2037
|
|||||
|
I-79-A
|
Variable
|
(2)
|
$
|
2,271,965.47
|
September
25, 2037
|
|||||
|
I-79-B
|
Variable
|
(2)
|
$
|
2,271,965.47
|
September
25, 2037
|
|||||
|
I-80-A
|
Variable
|
(2)
|
$
|
2,231,502.09
|
September
25, 2037
|
|||||
|
I-80-B
|
Variable
|
(2)
|
$
|
2,231,502.09
|
September
25, 2037
|
|||||
|
I-81-A
|
Variable
|
(2)
|
$
|
2,191,731.34
|
September
25, 2037
|
|||||
|
I-81-B
|
Variable
|
(2)
|
$
|
2,191,731.34
|
September
25, 2037
|
|||||
|
I-82-A
|
Variable
|
(2)
|
$
|
2,152,641.58
|
September
25, 2037
|
|||||
|
I-82-B
|
Variable
|
(2)
|
$
|
2,152,641.58
|
September
25, 2037
|
|||||
|
I-83-A
|
Variable
|
(2)
|
$
|
2,114,221.39
|
September
25, 2037
|
|||||
|
I-83-B
|
Variable
|
(2)
|
$
|
2,114,221.39
|
September
25, 2037
|
|||||
|
I-84-A
|
Variable
|
(2)
|
$
|
2,076,459.49
|
September
25, 2037
|
|||||
|
I-84-B
|
Variable
|
(2)
|
$
|
2,076,459.49
|
September
25, 2037
|
|||||
|
I-85-A
|
Variable
|
(2)
|
$
|
1,971,451.58
|
September
25, 2037
|
|||||
|
I-85-B
|
Variable
|
(2)
|
$
|
1,971,451.58
|
September
25, 2037
|
|||||
|
I-86-A
|
Variable
|
(2)
|
$
|
1,936,233.30
|
September
25, 2037
|
|||||
|
I-86-B
|
Variable
|
(2)
|
$
|
1,936,233.30
|
September
25, 2037
|
|||||
|
I-87-A
|
Variable
|
(2)
|
$
|
1,901,624.37
|
September
25, 2037
|
|||||
|
I-87-B
|
Variable
|
(2)
|
$
|
1,901,624.37
|
September
25, 2037
|
|||||
|
I-88-A
|
Variable
|
(2)
|
$
|
1,867,614.40
|
September
25, 2037
|
|||||
|
I-88-B
|
Variable
|
(2)
|
$
|
1,867,614.40
|
September
25, 2037
|
|||||
|
I-89-A
|
Variable
|
(2)
|
$
|
1,834,193.27
|
September
25, 2037
|
|||||
|
I-89-B
|
Variable
|
(2)
|
$
|
1,834,193.27
|
September
25, 2037
|
|||||
|
I-90-A
|
Variable
|
(2)
|
$
|
1,801,350.97
|
September
25, 2037
|
|||||
|
I-90-B
|
Variable
|
(2)
|
$
|
1,801,350.97
|
September
25, 2037
|
|||||
|
I-91-A
|
Variable
|
(2)
|
$
|
1,769,077.68
|
September
25, 2037
|
|||||
|
I-91-B
|
Variable
|
(2)
|
$
|
1,769,077.68
|
September
25, 2037
|
|||||
|
I-92-A
|
Variable
|
(2)
|
$
|
1,737,363.73
|
September
25, 2037
|
|||||
|
I-92-B
|
Variable
|
(2)
|
$
|
1,737,363.73
|
September
25, 2037
|
|||||
|
I-93-A
|
Variable
|
(2)
|
$
|
1,706,199.64
|
September
25, 2037
|
|||||
|
I-93-B
|
Variable
|
(2)
|
$
|
1,706,199.64
|
September
25, 2037
|
|||||
|
I-94-A
|
Variable
|
(2)
|
$
|
1,675,576.06
|
September
25, 2037
|
|||||
|
I-94-B
|
Variable
|
(2)
|
$
|
1,675,576.06
|
September
25, 2037
|
|||||
|
I-95-A
|
Variable
|
(2)
|
$
|
1,645,483.82
|
September
25, 2037
|
|||||
|
I-95-B
|
Variable
|
(2)
|
$
|
1,645,483.82
|
September
25, 2037
|
|||||
|
I-96-A
|
Variable
|
(2)
|
$
|
1,615,913.88
|
September
25, 2037
|
|||||
|
I-96-B
|
Variable
|
(2)
|
$
|
1,615,913.88
|
September
25, 2037
|
|||||
|
I-97-A
|
Variable
|
(2)
|
$
|
1,527,371.75
|
September
25, 2037
|
|||||
|
I-97-B
|
Variable
|
(2)
|
$
|
1,527,371.75
|
September
25, 2037
|
|||||
|
I-98-A
|
Variable
|
(2)
|
$
|
1,500,323.92
|
September
25, 2037
|
|||||
|
I-98-B
|
Variable
|
(2)
|
$
|
1,500,323.92
|
September
25, 2037
|
|||||
5
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||||
|
I-99-A
|
Variable
|
(2)
|
$
|
1,473,744.85
|
September
25, 2037
|
|||||
|
I-99-B
|
Variable
|
(2)
|
$
|
1,473,744.85
|
September
25, 2037
|
|||||
|
I-100-A
|
Variable
|
(2)
|
$
|
79,144,055.12
|
September
25, 2037
|
|||||
|
I-100-B
|
Variable
|
(2)
|
$
|
79,144,055.12
|
September
25, 2037
|
|||||
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
6
REMIC
II
As
provided herein, the Securities Administrator will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC II.” The Class R-II Interest will evidence the sole class
of “residual interests” in REMIC II for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the REMIC II Remittance
Rate, the initial aggregate Certificate Principal Balance and, for purposes
of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest
possible maturity date” for each of the REMIC II Regular Interests. None of the
REMIC II Regular Interests will be certificated.
|
Designation
|
REMIC
II
Remittance
Rate
|
Initial
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date (1)
|
|||||||
|
A-1
|
Variable
|
(2)
|
$
|
821,837,000.00
|
September
25, 2037
|
|||||
|
A-2
|
Variable
|
(2)
|
$
|
46,092,000.00
|
September
25, 2037
|
|||||
|
B-1
|
Variable
|
(2)
|
$
|
37,336,000.00
|
September
25, 2037
|
|||||
|
B-2
|
Variable
|
(2)
|
$
|
5,531,000.00
|
September
25, 2037
|
|||||
|
B-3
|
Variable
|
(2)
|
$
|
2,765,000.00
|
September
25, 2037
|
|||||
|
B-4
|
Variable
|
(2)
|
$
|
3,688,000.00
|
September
25, 2037
|
|||||
|
B-5
|
Variable
|
(2)
|
$
|
2,765,000.00
|
September
25, 2037
|
|||||
|
B-6
|
Variable
|
(2)
|
$
|
1,844,139.00
|
September
25, 2037
|
|||||
|
IO
|
Variable
|
(2)
|
(3)
|
September
25, 2037
|
||||||
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) Calculated
in accordance with the definition of “REMIC II Remittance Rate”
herein.
7
REMIC
III
As
provided herein, the Securities Administrator will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC III.” The Class R-III Interest will evidence the sole class
of “residual interests” in REMIC III for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the REMIC III Remittance
Rate, the initial aggregate Uncertificated Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest
possible maturity date” for each of the REMIC III Regular Interests. None of the
REMIC III Regular Interests will be certificated.
|
Designation
|
Pass-Through
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date (1)
|
|||||||
|
Class
A-1
|
Variable
|
(2)
|
$
|
821,837,000.00
|
September
25, 2037
|
|||||
|
Class
A-2
|
Variable
|
(2)
|
$
|
46,092,000.00
|
September
25, 2037
|
|||||
|
Class
B-1
|
Variable
|
(2)
|
$
|
37,336,000.00
|
September
25, 2037
|
|||||
|
Class
B-2
|
Variable
|
(2)
|
$
|
5,531,000.00
|
September
25, 2037
|
|||||
|
Class
B-3
|
Variable
|
(2)
|
$
|
2,765,000.00
|
September
25, 2037
|
|||||
|
Class
B-4
|
Variable
|
(2)
|
$
|
3,688,000.00
|
September
25, 2037
|
|||||
|
Class
B-5
|
Variable
|
(2)
|
$
|
2,765,000.00
|
September
25, 2037
|
|||||
|
Class
B-6
|
Variable
|
(2)
|
$
|
1,844,139.00
|
September
25, 2037
|
|||||
|
Class
IO Interest
|
N/A
|
(3)
|
(3)
|
September
25, 2037
|
||||||
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) Calculated
in accordance with the definition of “Pass-Through Rate” herein.
(3) The
Class
IO Interest will not have a Pass-Through Rate or a Certificate Principal
Balance, but will be entitled to 100% of amounts distributed on REMIC II Regular
Interest IO.
The
aggregate Scheduled Principal Balance of the Mortgage Loans (after deducting
all
Monthly Payments due on or before the Cut-off Date) as of the Cut-off Date
is
$921,858,139.06.
In
consideration of the mutual agreements herein contained, the Depositor, ▇▇▇▇▇
Fargo, the Master Servicer, the Securities Administrator and the Trustee
agree
as follows:
8
ARTICLE
I
DEFINITIONS
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement, including, without limitation, in the Preliminary
Statement hereto, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article. Unless otherwise
specified, all calculations described herein shall be made on the basis of
a
360-day year consisting of twelve 30-day months.
“Accepted
Master Servicing Practices”: With respect to any Mortgage Loan, as applicable,
either (x) those customary mortgage master servicing practices of prudent
mortgage servicing institutions that master service mortgage loans of the same
type and quality as such Mortgage Loan in the jurisdiction where the related
Mortgaged Property is located, to the extent applicable to the Master Servicer
or (y) as provided in Section 3.01 hereof, but in no event below the
standard set forth in clause (x) above.
“Accepted
Servicing Practices”: As defined in Section 3.01.
“Account”:
The Collection Account, the Custodial Account and the Distribution Account,
as
the context may require.
“Accrued
Certificate Interest”: With respect to any Class A Certificate or any
Subordinate Certificate and each Distribution Date, interest accrued during
the
related Interest Accrual Period at the Pass-Through Rate for such Certificate
for such Distribution Date on the Certificate Principal Balance of such
Certificate immediately prior to such Distribution Date. All distributions
of
interest on the Class A Certificates and the Subordinate Certificates will
be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
Accrued Certificate Interest with respect to each Distribution Date, as to
any
Class A Certificate or any Subordinate Certificate shall be reduced by an amount
equal to the portion allocable to such Certificate pursuant to Section 1.02
hereof, if any, of the sum of (a) the aggregate Prepayment Interest Shortfall,
if any, for such Distribution Date to the extent not covered by payments
pursuant to Section 3.22 or Section 4.19 of this Agreement, (b) the
aggregate amount of any Relief Act Interest Shortfall, if any, for such
Distribution Date and (c) the interest portion of Realized Losses incurred
on
the Mortgage Loans during the related Due Period.
“Additional
Disclosure Notification”: Has the meaning set forth in Section 5.06(a)(ii)
of this Agreement.
“Additional
Form 10-D Disclosure”: Has the meaning set forth in Section 5.06(a)(i) of
this Agreement.
“Additional
Form 10-K Disclosure”: Has the meaning set forth in Section 5.06(d)(i) of
this Agreement.
9
“Additional
Servicer”: Means each affiliate of a Servicer that Services any of the Mortgage
Loans and each Person who is not an affiliate of a Servicer that Services any
of
the Mortgage Loans. For clarification purposes, the Master Servicer and the
Securities Administrator are Additional Servicers.
“Administration
Fee”: With respect to each Mortgage Loan and any Distribution Date, the product
of one-twelfth of (x) the Administration Fee Rate for such Mortgage Loan
multiplied by (y) the principal balance of such Mortgage Loan as of the last
day
of the immediately preceding Due Period (or as of the Cut-off Date with respect
to the first Distribution Date), after giving effect to principal prepayments
received during the related Prepayment Period.
“Administration
Fee Rate”: The sum of (i) the Servicing Fee Rate, (ii) the Master Servicing Fee
Rate, if any, (iii) the Credit Risk Management Fee Rate and (iv) the rate at
which the premium payable in connection with any lender paid primary mortgage
insurance policy is calculated, if applicable.
“Advance
Facility”: As defined in Section 3.25(a).
“Advance
Financing Person”: As defined in Section 3.25(a).
“Advance
Reimbursement Amounts”: As defined in Section 3.25(b).
“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.
“Agreement”:
This Pooling and Servicing Agreement, including all exhibits and schedules
hereto and all amendments hereof and supplements hereto.
“Amounts
Held for Future Distribution”: As to any Distribution Date, the aggregate amount
held in the Collection Account at the close of business on the immediately
preceding Determination Date on account of (i) all Monthly Payments or portions
thereof received in respect of the Mortgage Loans due after the related Due
Period and (ii) Principal Prepayments and Liquidation Proceeds received in
respect of such Mortgage Loans after the last day of the related Prepayment
Period.
“Ancillary
Income”: All income derived from the Mortgage Loans, other than Servicing Fees,
including but not limited to, late charges, fees received with respect to checks
or bank drafts returned by the related bank for non-sufficient funds, assumption
fees, optional insurance administrative fees and all other incidental fees
and
charges.
“Annual
Independent Public Accountants’ Servicing Report”: A report of a firm of
independent public accountants which is a member of the American Institute
of
Certified Public Accountants to the effect that such firm has examined certain
documents and records relating to the servicing of the Mortgage Loans or
mortgage loans similar in nature to the Mortgage Loans by the Servicer and
that
such firm is of the opinion that the provisions of this Agreement or similar
servicing agreements have been complied with, and that, on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, nothing has come to the attention
of
such firm which would indicate that such servicing has not been conducted in
compliance therewith, except (i) such exceptions such firm shall believe to
be
immaterial, and (ii) such other exceptions as shall be set forth in such report.
No Annual Independent Public Accountants’ Servicing Report shall contain any
provision restricting the use of such report by the Servicer, including any
prohibition on the inclusion of any such report in any filing with the
Commission.
10
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction where
the related Mortgaged Property is located to reflect of record the sale and
assignment of the Mortgage, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if
permitted by law.
“Assignment
Agreement”: The Assignment, Assumption and Recognition Agreement, dated as of
August 30, 2007, by and among the Sponsor, the Depositor and GMACM evidencing
the assignment of the Servicing Agreement to the Depositor.
“Available
Distribution Amount”: With respect to any Distribution Date, an amount equal to
(1) the sum of (a) the aggregate of the amounts on deposit in the Collection
Account and the Distribution Account as of the close of business on the Servicer
Remittance Date, (b) the aggregate of any amounts deposited in the Distribution
Account by the Servicers or the Master Servicer in respect of Prepayment
Interest Shortfalls for such Distribution Date pursuant to Section 3.22 or
Section 4.19 of this Agreement or pursuant to the Servicing Agreement, (c)
the aggregate of any P&I Advances for such Distribution Date made by the
Servicers pursuant to Section 5.03 of this Agreement or pursuant to the
Servicing Agreement and (d) the aggregate of any P&I Advances made by a
successor Servicer (including the Trustee) for such Distribution Date pursuant
to Section 8.02 of this Agreement or pursuant to the Servicing Agreement,
(ii) Principal Prepayments on the Mortgage Loans received after the related
Prepayment Period (together with any interest payments received with such
Principal Prepayments to the extent they represent the payment of interest
accrued on the Mortgage Loans during a period subsequent to the related
Prepayment Period), (iii) Liquidation Proceeds, Insurance Proceeds and
Subsequent Recoveries received in respect of the Mortgage Loans after the
related Prepayment Period, (iv) amounts reimbursable or payable to the
Depositor, the Servicers, the Trustee, the Master Servicer, the Securities
Administrator, the Credit Risk Manager or the Custodian pursuant to
Section 3.09 or 9.05 of this Agreement or otherwise payable in respect of
Extraordinary Trust Fund Expenses or reimbursable or payable under the Servicing
Agreement, (v) the Credit Risk Management Fee, (vi) amounts deposited in the
Collection Account or the Distribution Account in error and (vii) amounts
reimbursable to a successor Servicer (including the Trustee) pursuant to
Section 8.02 of this Agreement or pursuant to the Servicing
Agreement.
11
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Bankruptcy
Coverage”: As of the Cut-Off Date, $345,096.11. Bankruptcy Coverage will be
reduced, from time to time, by the amount of Bankruptcy Losses allocated to
the
Class A Certificates and Subordinate Certificates.
“Bankruptcy
Loss”: Any Debt Service Reduction or Deficient Valuation with respect to a
Mortgage Loan.
“Book-Entry
Certificates”: The Publicly Offered Certificates and the Privately Offered
Certificates for so long as such Certificates shall be registered in the name
of
the Depository or its nominee.
“Book-Entry
Custodian”: The custodian appointed pursuant to Section 6.01.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings and loan institutions in the States of New York, California, Maryland,
Minnesota, Iowa or the Commonwealth of Pennsylvania or in the city in which
the
Corporate Trust Office of the Trustee is located, are authorized or obligated
by
law or executive order to be closed.
“Cash-Out
Refinancing”: A Refinanced Mortgage Loan the proceeds of which are more than a
nominal amount in excess of the principal balance of any existing first mortgage
plus any subordinate mortgage on the related Mortgaged Property and related
closing costs.
“Certificate”:
Any one of MortgageIT Securities Corp. Mortgage Pass-Through Certificates,
Series 2007-2, Class A-1, Class A-2, Class B-1, Class B-2, Class B-3, Class
B-4,
Class B-5, Class B-6 and Class R Certificates issued under this Agreement.
“Certificate
Factor”: With respect to any Class of Certificates (other than the Residual
Certificates) as of any Distribution Date, a fraction, expressed as a decimal
carried to six places, the numerator of which is the aggregate Certificate
Principal Balance of such Class of Certificates on such Distribution Date (after
giving effect to any distributions of principal and allocations of Realized
Losses resulting in reduction of the Certificate Principal Balance of such
Class
of Certificates to be made on such Distribution Date), and the denominator
of
which is the initial aggregate Certificate Principal Balance of such Class
of
Certificates as of the Closing Date.
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that a Disqualified Organization or a Non-United
States Person shall not be a Holder of a Residual Certificate for any purposes
hereof, and solely for the purposes of giving any consent pursuant to this
Agreement, (i) any Certificate registered in the name of or beneficially owned
by the Depositor, the Sponsor, a Servicer, the Master Servicer, the Securities
Administrator, the Trustee or any Affiliate thereof shall be deemed not to
be
outstanding and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent has been obtained, except as otherwise
provided in Section 12.01 of this Agreement and (ii) the Designated Entity
shall be deemed to be the Holder of any Class of Designated Certificates (which
Designated Entity shall not have any fiduciary duties with respect to the person
in whose name such Class of Designated Certificates is registered). The Trustee
and the Securities Administrator may conclusively rely upon a certificate of
the
Depositor, the Sponsor, the Master Servicer, the Securities Administrator or
a
Servicer in determining whether a Certificate is held by an Affiliate thereof.
All references herein to “Holders” or “Certificateholders” shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee and the Securities Administrator
shall be required to recognize as a “Holder” or “Certificateholder” only the
Person in whose name a Certificate is registered in the Certificate
Register.
12
“Certificate
Owner”: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Certificate as reflected on the books of the Depository
or on the books of a Depository Participant or on the books of an indirect
participating brokerage firm for which a Depository Participant acts as
agent.
“Certificate
Principal Balance”: With respect to each Class A Certificate or Subordinate
Certificate as of any date of determination, the Certificate Principal Balance
of such Certificate on the Distribution Date immediately prior to such date
of
determination plus any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 5.04 of this Agreement,
minus (i) all distributions allocable to principal made thereon, (ii) with
respect to the Class A Certificates, all amounts in respect of principal
otherwise payable to the Class A Certificates used to cover Net Swap Payments
and Swap Termination Payments payable to the Swap Provider pursuant to
Section 5.01(c)(iii) or Section 5.01(d)(iii), (iii) with respect to
the Class A-2 Certificates, all amounts in respect of principal otherwise
payable to the Class A-2 Certificates used to cover unpaid Net WAC Rate
Carryover Amounts payable to the Class A-1 Certificates pursuant to
Section 5.02(c)(iii) or Section 5.01(d)(iii) and (iv) Realized Losses
allocated thereto, if any, on such immediately prior Distribution Date (or,
in
the case of any date of determination up to and including the first Distribution
Date, the initial Certificate Principal Balance of such Certificate, as stated
on the face thereof). The aggregate initial Certificate Principal Balance of
each Class of Regular Certificates is set forth in the Preliminary Statement
hereto.
“Certificate
Register”: The register maintained pursuant to Section 6.02 of this
Agreement.
“Certification
Parties”: Has the meaning set forth in Section 3.19 of this
Agreement.
“Certifying
Person”: Has the meaning set forth in Section 3.19 of this
Agreement.
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“Class
A
Certificate”: Any Class A-1 Certificate or Class A-2 Certificate.
13
“Class
A
Swap Credit Support Annex”: The credit support annex, dated as of August 30,
2007, between the Supplemental Interest Trust Trustee and the Swap Provider,
which is annexed to and forms part of the Class A Swap Agreement.
“Class
A
Swap Agreement”: The interest rate swap agreement, dated as of August 30, 2007,
between the Supplemental Interest Trust Trustee and the Swap Provider, including
any schedule, confirmation, credit support annex or credit support document
relating thereto, and attached hereto as Exhibit I.
“Class
A-1 Certificate”: Any one of the Class A-1 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-1 and evidencing (i)
a
Regular Interest in REMIC III, (ii) the right to receive the related Net WAC
Rate Carryover Amount and (iii) the obligation to pay any Class IO Distribution
Amount.
“Class
A-1 Formula Rate”: With
respect to any Distribution Date, the
lesser of (i) One-Month LIBOR plus 0.50% per annum and (ii) 10.50% per annum.
“Class
A-1 Interest Shortfall Amount”: With respect to any Distribution Date while the
Class A-2 Certificates are still outstanding, an amount equal to (1) the Net
WAC
Rate Carryover Amount for the Class A-1 Certificates for such Distribution
Date
minus (2) the amounts received from the Class A Swap Agreement and distributed
from the Supplemental Interest Trust to the Class A-1 Certificates with respect
to unpaid Net WAC Rate Carryover Amounts on such Distribution Date.
“Class
A-1 Pass-Through Rate”: With respect to any Distribution Date, an annual rate
equal to the lesser of (x) the Class A-1 Formula Rate and (y) the applicable
Net
WAC Pass-Through Rate with respect to the Class A-1 Certificates for such
Distribution Date.
“Class
A-2 Certificate”: Any one of the Class A-2 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-1 and evidencing (i)
a
Regular Interest in REMIC III, (ii) the obligation to pay any Class IO
Distribution Amount, (iii) beneficial ownership of the Supplemental Interest
Trust and (iv) rights and obligations under one or more notional principal
contracts described in Section 3.08.
“Class
A-2 Pass-Through Rate”: With respect to any Distribution Date, an annual rate,
expressed as a fraction, (I) the numerator of which equals (A) an amount equal
to the product of (x) the excess, if any, of the Net WAC Pass Through Rate
for
the Class A-1 Certificates for such Distribution Date minus the Class A-1
Formula Rate and (y) the Certificate Principal Balance of the Class A-1
Certificates for such Distribution Date plus (B) an amount equal to the product
of (x) the applicable Net WAC Pass-Through
Rate for the Class A-2 Certificates
for such
Distribution Date and (y) the Certificate Principal Balance of the Class A-2
Certificates for such Distribution Date minus (C) the product of (x) 12 and
(y)
the Class A-1 Interest Shortfall Amount for such Distribution Date and (II)
the
denominator of which is the Certificate Principal Balance of the Class A-2
Certificates for such Distribution Date. For federal income tax purposes, for
any Distribution Date with respect to the REMIC III Regular Interests the
ownership which is represented by the Class A-1 Certificates, such rate shall
be
expressed as the weighted average of (1) the REMIC II Pass-Through Rate for
REMIC II Regular Interest A-1 minus the Pass-Through Rate for the Corresponding
Certificate and (2) the REMIC II Pass-Through Rate for REMIC II Regular Interest
A-2, weighted based on the Uncertificated Balance of each such REMIC II Regular
Interest.
14
“Class
B-1 Certificate”: Any one of the Class B-1 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-2 and evidencing (i)
a
Regular Interest in REMIC III and (ii) the obligation to pay any Class IO
Distribution Amount.
“Class
B-1 Pass-Through Rate”: With respect to any Distribution Date, an annual rate
equal to the Subordinate Pass-Through Rate for such Distribution
Date.
“Class
B-2 Certificate”: Any one of the Class B-2 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-2
and
evidencing (i) a Regular Interest in REMIC III and (ii) the obligation to pay
any Class IO Distribution Amount.
“Class
B-2 Pass-Through Rate”: With respect to any Distribution Date, an annual rate
equal to the Subordinate Pass-Through Rate for such Distribution
Date.
“Class
B-3 Certificate”: Any one of the Class B-3 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-2 and evidencing (i)
a
Regular Interest in REMIC III and (ii) the obligation to pay any Class IO
Distribution Amount.
“Class
B-3 Pass-Through Rate”: With respect to any Distribution Date, an annual rate
equal to the Subordinate Pass-Through Rate for such Distribution
Date.
“Class
B-4 Certificate”: Any one of the Class B-4 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-3 and evidencing (i)
a
Regular Interest in REMIC III and (ii) the obligation to pay any Class IO
Distribution Amount.
“Class
B-4 Pass-Through Rate”: With respect to any Distribution Date, an annual rate
equal to the Subordinate Pass-Through Rate for such Distribution
Date.
“Class
B-5 Certificate”: Any one of the Class B-5 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-3 and evidencing (i)
a
Regular Interest in REMIC III and (ii) the obligation to pay any Class IO
Distribution Amount.
“Class
B-5 Pass-Through Rate”: With respect to any Distribution Date, an annual rate
equal to the Subordinate Pass-Through Rate for such Distribution
Date.
“Class
B-6 Certificate”: Any one of the Class B-6 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-3 and evidencing (i)
a
Regular Interest in REMIC III and (ii) the obligation to pay any Class IO
Distribution Amount.
15
“Class
B-6 Pass-Through Rate”: With respect to any Distribution Date, an annual rate
equal to the Subordinate Pass-Through Rate for such Distribution
Date.
“Class
IO
Distribution Amount”: As defined in Section 5.07(f) hereof. For
purposes of clarity, the Class IO Distribution Amount for any Distribution
Date
shall equal the amount payable to the Supplemental Interest Trust on such
Distribution Date in excess of the amount payable on the Class IO Interest
on
such Distribution Date, all as further provided in Section 5.07(f)
hereof.
“Class
IO
Interest”: An uncertificated interest in the Trust Fund held by the Trustee,
evidencing a REMIC Regular Interest in REMIC III for purposes of the REMIC
Provisions.
“Class
R
Certificates”: Any one of the Class R Certificates executed and authenticated by
the Securities Administrator and delivered by the Trustee, substantially in
the
form annexed hereto as Exhibit A-3, and evidencing the Class R-I Interest,
the
Class R-II Interest and the Class R-III Interest.
“Class
R-I Interest”: The uncertificated residual interest in REMIC I.
“Class
R-II Interest”: The uncertificated residual interest in REMIC II.
“Class
R-III Interest”: The uncertificated residual interest in REMIC III.
“Closing
Date”: August 30, 2007.
“Code”:
The Internal Revenue Code of 1986 as amended from time to time.
“Collection
Account”: The separate account or accounts created and maintained, or caused to
be created and maintained, by ▇▇▇▇▇ Fargo pursuant to Section 3.08(a) of
this Agreement for the benefit of the Certificateholders, which shall be
entitled “▇▇▇▇▇ Fargo Bank, National Association, as Servicer for HSBC Bank USA,
National Association as Trustee, in trust for the registered holders of
MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2, Mortgage
Pass-Through Certificates”. The Collection Account must be an Eligible
Account.
“Commission”:
The Securities and Exchange Commission.
“Controlling
Person”: Means, with respect to any Person, any other Person who “controls” such
Person within the meaning of the Securities Act.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee or the
Securities Administrator, as the case may be, at which, at any particular time,
its corporate trust business in connection with this Agreement shall be
administered, which office at the date of the execution of this instrument
is
located at (i) with respect to the Trustee, HSBC Bank USA, National Association,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: MortgageIT Securities
Corp., 2007-2, or at such other address as the Trustee may designate from time
to time by notice to the Certificateholders, the Depositor, the Master Servicer,
the Securities Administrator and the Servicers, or (ii) with respect to the
Securities Administrator, (A) for purposes of Certificate transfers and
surrender, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust (MHL 2007-2),
and (B) for all other purposes, ▇▇▇▇▇ Fargo Bank, National Association, ▇.▇.
▇▇▇
▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust (MHL 2007-2) (or for
overnight deliveries, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust (MHL 2007-2)), or at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer, the Servicers and the
Trustee.
16
“Corresponding
Certificate” and “Corresponding REMIC II Regular Interest”: With respect to each
Certificate and REMIC II Regular Interest, as follows:
|
REMIC
II Regular Interest
|
Class
|
|
|
REMIC
II Regular Interest A-1
|
A-1
|
|
|
REMIC
II Regular Interest A-2
|
A-2
|
|
|
REMIC
II Regular Interest B-1
|
B-1
|
|
|
REMIC
II Regular Interest B-2
|
B-2
|
|
|
REMIC
II Regular Interest B-3
|
B-3
|
|
|
REMIC
II Regular Interest B-4
|
B-4
|
|
|
REMIC
II Regular Interest B-5
|
B-5
|
|
|
REMIC
II Regular Interest B-6
|
B-6
|
“Credit
Risk Management Agreements”: The agreements between the Credit Risk Manager and
each Servicer and/or Master Servicer, each regarding the loss mitigation and
advisory services to be provided by the Credit Risk Manager.
“Credit
Risk Management Fee”: The amount payable to the Credit Risk Manager on each
Distribution Date as compensation for all services rendered by it in the
exercise and performance of any and all powers and duties of the Credit Risk
Manager under the Credit Risk Management Agreements, which amount shall equal
one twelfth of the product of (i) the Credit Risk Management Fee Rate multiplied
by (ii) the Scheduled Principal Balance of the Mortgage Loans and any related
REO Properties as of the first day of the related Due Period.
“Credit
Risk Management Fee Rate”: 0.009% per annum.
“Credit
Risk Manager”: ▇▇▇▇▇▇▇ Fixed Income Services Inc., a Colorado corporation, and
its successors and assigns.
“Credit
Support Depletion Date”: The Distribution Date on which the Certificate
Principal Balances of all of the Subordinate Certificates have been reduced
to
zero (prior to giving effect to distributions of principal and allocations
of
Realized Losses on the Mortgage Loans on such Distribution Date).
“Custodial
Account”: The account or accounts maintained by GMACM under the Servicing
Agreement.
17
“Custodial
Agreement”: The Custodial Agreement dated as of August 30, 2007, among the
Trustee, the Custodian and the Servicers, as may be amended or supplemented
from
time to time.
“Custodian”:
Deutsche Bank National Trust Company, a national banking association, or its
successor in interest.
“Cut-off
Date”: With respect to each Mortgage Loan other than any Qualified Substitute
Mortgage Loan, August 1, 2007. With respect to all Qualified Substitute
Mortgage Loans, their respective dates of substitution.
“DBRS”:
DBRS, Inc. or its successor in interest.
“Debt
Service Reduction”: Any reduction of the amount of the monthly payment on a
Mortgage Loan made by a bankruptcy court in connection with a personal
bankruptcy of a mortgagor.
“Deficient
Valuation”: In connection with a personal bankruptcy of a Mortgagor, the
positive difference, if any, resulting from the outstanding principal balance
of
a Mortgage Loan less a bankruptcy court’s valuation of the related Mortgaged
Property.
“Definitive
Certificates”: As defined in Section 6.01(b) of this
Agreement.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by a Qualified
Substitute Mortgage Loan.
“Delinquency
Percentage”: With respect to any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is the aggregate Scheduled Principal Balance
of all Mortgage Loans that, as of the last day of the previous calendar month,
are sixty (60) or more days delinquent, are in foreclosure, have been converted
to REO Properties or have been discharged by reason of bankruptcy, and the
denominator of which is the aggregate Scheduled Principal Balance of the
Mortgage Loans and REO Properties as of the last day of the previous calendar
month.
“Depositor”:
MortgageIT Securities Corp., a Delaware corporation, or its successor in
interest.
“Depository”:
The Depository Trust Company, or any successor Depository hereafter named.
The
nominee of the initial Depository, for purposes of registering those
Certificates that are to be Book-Entry Certificates, is Cede & Co. The
Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York
and a “clearing agency” registered pursuant to the provisions of
Section 17A of the Exchange Act.
“Depository
Institution”: Any depository institution or trust company, including the
Trustee, that (a) is incorporated under the laws of the United States of America
or any State thereof, (b) is subject to supervision and examination by federal
or state banking authorities and (c) has outstanding unsecured commercial paper
or other short-term unsecured debt obligations (or, in the case of a depository
institution that is the principal subsidiary of a holding company, such holding
company has unsecured commercial paper or other short-term unsecured debt
obligations) that are rated at least A-1+ by S&P, F-1+ by Fitch and P-1 by
▇▇▇▇▇’▇ (or, if such Rating Agencies are no longer rating the Publicly Offered
Certificates, comparable ratings by any other nationally recognized statistical
rating agency then rating the Publicly Offered Certificates).
18
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
Person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Designated
Certificates”: The Class A-1 Certificates.
“Designated
Entity”: With respect to any Class of Designated Certificates, the entity (which
shall not be the Depositor or the Sponsor) specified in a written notice by
the
Underwriter to the Trustee and the Securities Administrator which shall have
the
right to exercise the Voting Rights allocable to such Class of Designated
Certificates.
“Determination
Date”: With respect to each Distribution Date, the Business Day immediately
preceding the related Servicer Remittance Date. The Determination Date for
purposes of Article X hereof shall mean the 15th
day of
the month, or if such 15th
day is
not a Business Day, the first Business Day following such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the related Servicer, on behalf of the
Trustee, shall not be considered to Directly Operate an REO Property solely
because the related Servicer establishes rental terms, chooses tenants, enters
into or renews leases, deals with taxes and insurance, or makes decisions as
to
repairs or capital expenditures with respect to such REO Property.
“Disqualified
Organization”: Any of the following: (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for ▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) any foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers’ cooperatives described in Section 521 of the
Code) which is exempt from the tax imposed by Chapter 1 of the Code (including
the tax imposed by Section 511 of the Code on unrelated business taxable
income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” and
(vi) any other Person so designated by the Trustee based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate
by
such Person may cause any Trust REMIC or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability
for
any federal tax imposed under the Code that would not otherwise be imposed
but
for the Transfer of an Ownership Interest in a Residual Certificate to such
Person. The terms “United States,” “State” and “international organization”
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
19
“Distribution
Account”: The separate trust account or accounts created and maintained by the
Securities Administrator pursuant to Section 3.08(b) of this Agreement in
the name of the Securities Administrator for the benefit of the
Certificateholders and designated “▇▇▇▇▇
Fargo Bank, National Association, in trust for registered holders of MortgageIT
Securities Corp. Mortgage Loan Trust, Series 2007-2”.
Funds
in the Distribution Account shall be held in trust for the Certificateholders
for the uses and purposes set forth in this Agreement. The Distribution Account
must be an Eligible Account.
“Distribution
Date”: The 25th day of any month, or if such 25th day is not a Business Day, the
Business Day immediately following such 25th day, commencing in September
2007.
“Due
Date”: With respect to each Distribution Date, the day of the month on which the
Monthly Payment is due on a Mortgage Loan during the related Due Period,
exclusive of any days of grace.
“Due
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.
“Eligible
Account”: Any
of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company, the long-term unsecured debt
obligations and short-term unsecured debt obligations of which (or, in the
case
of a depository institution or trust company that is the principal subsidiary
of
a holding company, the debt obligations of such holding company) are rated
by
each Rating Agency in one of its two highest long-term and its highest
short-term rating categories, respectively, at the time any amounts are held
on
deposit therein; provided, that following a downgrade, withdrawal, or suspension
of such institution’s rating as set forth above, each account shall
promptly (and in any case within not more than 30 calendar days) be moved
to one or more segregated trust accounts in the trust department of such
institution, or to an account at another institution that complies with the
above requirements, or (ii) a trust account or accounts maintained with the
corporate trust department of a federal or state chartered depository
institution or trust company having capital and surplus of not less than
$50,000,000, acting in its fiduciary capacity or (iii) any other account
acceptable to the Rating Agencies, as evidenced in writing. Eligible Accounts
may bear interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee. Notwithstanding Section
12.01, this Agreement may be amended to reduce the rating requirements in clause
(i) above, without the consent of any of the Certificateholders, provided that
the Person requesting such amendment obtains a letter from each Rating Agency
stating that such amendment would not result in the downgrading or withdrawal
of
the respective ratings then assigned to the Certificates.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended from time
to
time.
20
“Estate
in Real Property”: A fee simple estate in a parcel of land.
“Excess
Liquidation Proceeds”: To the extent that such amount is not required by law to
be paid to the related Mortgagor, the amount, if any, by which Liquidation
Proceeds with respect to a liquidated Mortgage Loan exceed the sum of (i) the
outstanding principal balance of such Mortgage Loan and accrued but unpaid
interest at the related Net Mortgage Rate through the last day of the month
in
which the related Liquidation Event occurs, plus (ii) related liquidation
expenses or other amounts to which the related Servicer is entitled to be
reimbursed from Liquidation Proceeds with respect to such liquidated Mortgage
Loan pursuant to Section 3.09 of this Agreement or pursuant to the
Servicing Agreement.
“Excess
Loss”: A Special Hazard Loss incurred on a Mortgage Loan in excess of the
Special Hazard Coverage, a Fraud Loss incurred on a Mortgage Loan in excess
of
the Fraud Coverage and a Bankruptcy Loss incurred on a Mortgage Loan in excess
of the Bankruptcy Coverage.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Extraordinary
Trust Fund Expense”: Any amounts payable or reimbursable to the Trustee, the
Master Servicer, the Securities Administrator, the Custodian or any director,
officer, employee or agent of any such Person from the Trust Fund pursuant
to
the terms of this Agreement and any amounts payable from the Distribution
Account in respect of taxes pursuant to Section 11.01(g)(v) of this
Agreement.
“▇▇▇▇▇▇
▇▇▇”: ▇▇▇▇▇▇ ▇▇▇, formerly known as the Federal National Mortgage Association,
or any successor thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by an originator,
the Sponsor or the Master Servicer pursuant to or as contemplated by
Section 2.03, 3.13(c) or Section 10.01 of this Agreement), a
determination made by the related Servicer that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which such Servicer,
in
its reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered, which determination shall be evidenced by a
certificate of a Servicing Officer of the related Servicer delivered to the
Master Servicer and maintained in its records.
“Fitch”:
Fitch Ratings or any successor in interest.
“Form
8-K
Disclosure Information”: Has the meaning set forth in
Section 5.06(b).
21
“Fraud
Coverage”: As of the Cut-Off Date, $9,218,581.39. As of any date of
determination after the Cut-Off Date, the Fraud Coverage will generally be
equal
to:
|
(1)
|
from
the first to and including the second anniversary of the Cut-Off
Date, an
amount equal to:
|
|
(a)
|
1.00%
of the aggregate principal balance of the Mortgage Loans as of the
Cut-Off
Date, minus
|
|
(b)
|
the
aggregate amounts allocated to the Certificates with respect to Fraud
Losses on the Mortgage Loans up to such date of
determination;
|
|
(2)
|
from
the third to and including the fifth anniversary of the Cut-Off Date,
an
amount equal to:
|
|
(a)
|
0.50%
of the aggregate principal balance of the Mortgage Loans as of the
Cut-Off
Date, minus
|
|
(b)
|
the
aggregate amounts allocated to the Certificates with respect to Fraud
Losses on the Mortgage Loans up to such date of determination;
and
|
|
(3)
|
after
the fifth anniversary of the Cut-Off Date, the Fraud Coverage will
be
zero.
|
“Fraud
Losses”: Losses on a Mortgage Loan arising from fraud, dishonesty or
misrepresentation of the mortgagor in the origination of such Mortgage
Loan.
“▇▇▇▇▇▇▇
Mac”: ▇▇▇▇▇▇▇ Mac, formerly known as the Federal Home Loan Mortgage Corporation,
or any successor thereto.
“GMACM”:
GMAC Mortgage, LLC.
“GMACM
Mortgage Loan”: Any Mortgage Loan serviced by GMACM and identified as such on
the Mortgage Loan Schedule.
“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 specified Person, any such Person who (a) is in fact independent
of the Depositor, the Master Servicer, the Securities Administrator, the
Servicers, the Sponsor, the originator and their respective Affiliates, (b)
does
not have any direct financial interest in or any material indirect financial
interest in the Depositor, the Master Servicer, the Securities Administrator,
the Servicers, the Sponsor, the originator or any Affiliate thereof, (c) is
not
connected with the Depositor, the Master Servicer, the Securities Administrator,
the Servicers, the Sponsor, the originator or any Affiliate thereof 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 on clause (b) or (c) above.
“Independent
Contractor”: Either (i) any Person (other than a Servicer) that would be an
“independent contractor” with respect to REMIC I within the meaning of
Section 856(d)(3) of the Code if REMIC I were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates), so long as REMIC I does not receive or
derive any income from such Person and provided that the relationship between
such Person and REMIC I is at arm’s length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or (ii) any other Person (including any
Servicer) if the Trustee has received an Opinion of Counsel to the effect that
the taking of any action in respect of any REO Property by such Person, subject
to any conditions therein specified, that is otherwise herein contemplated
to be
taken by an Independent Contractor will not cause such REO Property to cease
to
qualify as “foreclosure property” within the meaning of Section 860G(a)(8)
of the Code (determined without regard to the exception applicable for purposes
of Section 860D(a) of the Code), or cause any income realized in respect of
such REO Property to fail to qualify as Rents from Real Property.
22
“Institutional
Accredited Investor”: As defined in Section 6.01(c).
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance
policy, covering a Mortgage Loan or the related Mortgaged Property, to the
extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor or a senior lienholder in
accordance with Accepted Servicing Practices, subject to the terms and
conditions of the related Mortgage Note and Mortgage.
“Interest
Accrual Period”: With respect to any Distribution Date and the Class A
Certificates, the period commencing on the Distribution Date of the month
immediately preceding the month in which such Distribution Date occurs (or,
in
the case of the first Distribution Date, commencing on the Closing Date) and
ending on the day preceding such Distribution Date. With respect to any
Distribution Date and the Subordinate Certificates, the Class IO Interest and
the REMIC Regular Interests, the one-month period commencing on the first day
of
the month prior to the month in which the Distribution Date occurs and ending
on
the last day of the calendar month immediately preceding the month in which
such
Distribution Date occurs.
“Interest
Determination Date”: With respect to the Class A-1 Certificates and any Interest
Accrual Period therefor, the second London Business Day preceding the
commencement of such Interest Accrual Period.
“Last
Scheduled Distribution Date”: The Distribution Date occurring in September 2037,
which is the Distribution Date immediately following the maturity date for
the
latest maturing thirty (30) year Mortgage Loan.
“Late
Collections”: With respect to any Mortgage Loan and any Due Period, all amounts
received subsequent to the Determination Date immediately following such Due
Period with respect to such Mortgage Loan, whether as late payments of Monthly
Payments or as Insurance Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously
recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i) such
Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made
as to
such Mortgage Loan or (iii) such Mortgage Loan is removed from REMIC I by reason
of its being purchased, sold or replaced pursuant to or as contemplated by
Section 2.03, Section 3.13(c) or Section 10.01 of this Agreement.
With respect to any REO Property, either of the following events: (i) a Final
Recovery Determination is made as to such REO Property or (ii) such REO Property
is removed from REMIC I by reason of its being purchased pursuant to
Section 10.01 of this Agreement.
23
“Liquidated
Loan”: A Mortgage Loan as to which the related Servicer has determined that all
amounts which it expects to recover from or on account of such Mortgage Loan,
whether from insurance proceeds, Liquidation Proceeds or otherwise, have been
recovered.
“Liquidation
Proceeds”: The amount (other than Insurance Proceeds, amounts received in
respect of the rental of any REO Property prior to REO Disposition, or required
to be released to a Mortgagor or a senior lienholder in accordance with
applicable law or the terms of the related Mortgage Loan Documents) received
by
the related Servicer in connection with (i) the taking of all or a part of
a
Mortgaged Property by exercise of the power of eminent domain or condemnation
(other than amounts required to be released to the Mortgagor or a senior
lienholder), (ii) the liquidation of a defaulted Mortgage Loan through a
trustee’s sale, foreclosure sale or otherwise, (iii) the repurchase,
substitution or sale of a Mortgage Loan or an REO Property pursuant to or as
contemplated by Section 2.03, Section 3.13(c), Section 3.21 or
Section 10.01 of this Agreement or pursuant to the Servicing Agreement or
(iv) any Subsequent Recoveries.
“Liquidation
Principal”: For any Distribution Date and any Mortgage Loan which became a
Liquidated Loan, the principal portion of net Liquidation Proceeds received
with
respect to such Mortgage Loan (but not in excess of the principal balance
thereof) during the related Prepayment Period.
“Loan-to-Value
Ratio”: As of any date of determination, the fraction, expressed as a
percentage, the numerator of which is the principal balance of the related
Mortgage Loan at such date and the denominator of which is the Value of the
related Mortgaged Property.
“London
Business Day”: Any day on which banks in the Cities of London and New York are
open and conducting transactions in United States dollars.
“Master
Servicer”: As of the Closing Date, ▇▇▇▇▇ Fargo Bank, National Association and
thereafter, its respective successors in interest who meet the qualifications
of
this Agreement. The Master Servicer and the Securities Administrator shall
at
all times be the same Person or an Affiliate.
“Master
Servicer Event of Default”: One or more of the events described in
Section 8.01(b) of this Agreement.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
24
“MERS®
System”: The system of recording transfers of mortgages electronically
maintained by MERS.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Servicing Requirements”: With respect to a special servicer appointed pursuant
to Section 7.11 hereunder:
(i) the
proposed special servicer is (1) an affiliate of the Master Servicer that
services mortgage loans similar to the Mortgage Loans in the jurisdictions
in
which the related Mortgaged Properties are located or (2) the proposed special
servicer has a rating of at least “ Above Average” by S&P and either a
rating of at least “RSS2” by Fitch or a rating of at least “SQ2” by Moody’s;
and
(ii) the
proposed special servicer has a net worth of at least $25,000,000.
“MOM
Loan”: With respect to any Mortgage Loan, MERS acting as the mortgagee of such
Mortgage Loan, solely as nominee for the originator of such Mortgage Loan and
its successors and assigns, at the origination thereof.
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the related
Mortgagor from time to time under the related Mortgage Note, determined: (a)
after giving effect to (i) any Deficient Valuation and/or Debt Service Reduction
with respect to such Mortgage Loan and (ii) any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act
or
similar state or local laws; (b) without giving effect to any extension granted
or agreed to by the related Servicer pursuant to Section 3.01 of this
Agreement or pursuant to the Servicing Agreement; and (c) on the assumption
that
all other amounts, if any, due under such Mortgage Loan are paid when
due.
“Moody’s”:
▇▇▇▇▇’▇ Investors Service, Inc. or any successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first lien on, or
first or priority security interest in, a Mortgaged Property securing a Mortgage
Note.
“Mortgage
File”: The Mortgage Loan Documents pertaining to a particular Mortgage
Loan.
“Mortgage
Loan”: Each mortgage loan transferred and assigned to the Trustee and the
Mortgage Loan Documents for which have been delivered to the Custodian pursuant
to Section 2.01 of this Agreement and pursuant to the Custodial Agreement,
as held from time to time as a part of the Trust Fund, the Mortgage Loans so
held being identified in the Mortgage Loan Schedule.
“Mortgage
Loan Documents”: The documents evidencing or relating to each Mortgage Loan
delivered to the Custodian under the Custodial Agreement on behalf of the
Trustee.
25
“Mortgage
Loan Purchase Agreement”: Shall mean the Mortgage Loan Purchase Agreement dated
as of August 30, 2007, between the Depositor and the Sponsor a copy of which
is
attached hereto as Exhibit F.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in REMIC I
on such date, attached hereto as Schedule 1. The Depositor shall deliver or
cause the delivery of the initial Mortgage Loan Schedule to the Servicers,
the
Master Servicer, the Custodian and the Trustee on the Closing Date. The Mortgage
Loan Schedule shall set forth the following information with respect to each
Mortgage Loan:
(i) the
Mortgage Loan identifying number;
(ii) the
Mortgagor’s first and last name;
(iii) the
street address of the Mortgaged Property including the state and zip
code;
(iv) a
code
indicating whether the Mortgaged Property is owner-occupied;
(v) the
type
of Residential Dwelling constituting the Mortgaged Property;
(vi) the
original months to maturity;
(vii) the
original date of the Mortgage Loan and the remaining months to maturity from
the
Cut-off Date, based on the original amortization schedule;
(viii) the
Loan-to-Value Ratio at origination;
(ix) the
Mortgage Rate in effect immediately following the Cut-off Date;
(x) the
date
on which the first Monthly Payment was due on the Mortgage Loan;
(xi) the
stated maturity date;
(xii) the
amount of the Monthly Payment at origination;
(xiii) the
amount of the Monthly Payment as of the Cut-off Date;
(xiv) the
last
Due Date on which a Monthly Payment was actually applied to the unpaid Scheduled
Principal Balance;
(xv) the
original principal amount of the Mortgage Loan;
(xvi) the
Scheduled Principal Balance of the Mortgage Loan as of the close of business
on
the Cut-off Date;
26
(xvii) a
code
indicating the purpose of the loan (i.e., purchase financing, rate/term
refinancing, cash-out refinancing);
(xviii) the
Mortgage Rate at origination;
(xix) the
date
on which the first Monthly Payment was due on the Mortgage Loan and, if such
date is not consistent with the Due Date currently in effect, such Due
Date;
(xx) a
code
indicating the documentation style (i.e., full, stated or limited);
(xxi) a
code
indicating if the Mortgage Loan is subject to a primary insurance policy or
lender paid mortgage insurance policy and the name of the insurer and, if
applicable, the rate payable in connection therewith;
(xxii) the
Appraised Value of the Mortgaged Property;
(xxiii) the
sale
price of the Mortgaged Property, if applicable;
(xxiv) the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
(xxv) the
Mortgagor’s debt to income ratio;
(xxvi) the
FICO
score at origination;
(xxvii) with
respect to each Mortgage Loan registered on MERS, the MIN;
(xxviii) the
Custodian;
(xxix) the
applicable Servicing Fee; and
(xxx) the
applicable Servicer.
The
Mortgage Loan Schedule shall set forth the following information with respect
to
the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the number
of
Mortgage Loans; (2) the current principal balance of the Mortgage Loans; (3)
the
weighted average Mortgage Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be
amended from time to time by the Depositor in accordance with the provisions
of
this Agreement. With respect to any Qualified Substitute Mortgage Loan, the
Cut-off Date shall refer to the related Cut-off Date for such Mortgage Loan,
determined in accordance with the definition of Cut-off Date
herein.
“Mortgage
Note”: The original executed note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
27
“Mortgage
Rate”: With respect to each Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan from time to time in accordance with the
provisions of the related Mortgage Note. With respect to each Mortgage Loan
that
becomes an REO Property, as of any date of determination, the annual rate
determined in accordance with the immediately preceding sentence as of the
date
such Mortgage Loan became an REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of an Estate in Real Property improved by a Residential
Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Interest Shortfall”: With respect to each Distribution Date, the sum of (1) any
Prepayment
Interest Shortfall with respect to the Mortgage Loans for such Distribution
Date,
(2) any
Relief Act Interest Shortfall with respect to the Mortgage Loans for such
Distribution Date and (3) the portion of Realized Losses attributable to
interest allocated to the Certificates on such Distribution Date.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property)
as of any date of determination, a per annum rate of interest equal to the
then
applicable Mortgage Rate for such Mortgage Loan minus the Administration Fee
Rate.
“Net
Swap
Payment”: With respect to each Distribution Date, the net payment required to be
made pursuant to the terms of the Class A Swap Agreement by either the Swap
Provider or the Securities Administrator from the Supplemental Interest Trust,
which net payment shall not take into account any Swap Termination
Payment.
“Net
WAC
Pass-Through Rate”: With respect to the Class A-1 Certificates and any
Distribution Date, a rate per annum equal to the weighted average Net Mortgage
Rate (weighted based on the principal balances of the Mortgage Loans as of
the
last day of the immediately preceding due period (or as of the Cut-off Date
with
respect to the first Distribution Date),
after
giving effect to principal prepayments received during the related Prepayment
Period) minus
a
fraction, expressed as a percentage, (x) the numerator of which is the product
of (A) 12 and (B) the sum of any Net Swap Payment and Swap Termination Payment
owed to the Swap Provider under the Class A Swap Agreement (not caused by a
Swap
Provider Trigger Event), in each case for such Distribution Date, and (y) the
denominator of which is the aggregate Certificate Principal Balance of the
Class
A-1 Certificates immediately prior to such Distribution Date. For federal income
tax purposes, for any Distribution Date with respect to the REMIC III Regular
Interests the ownership which is represented by the Class A-1 Certificates,
such
rate shall be expressed as the REMIC II Remittance Rate for REMIC II Regular
Interest A-1. For the first Distribution Date, the Net WAC Pass-Through Rate
with respect to the Class A-1 Certificates and the REMIC III Regular Interests
the ownership which is represented by the Class A-1 Certificates shall be
multiplied by a fraction, the numerator of which is 30 and the denominator
of
which is 25.
With
respect to the Class A-2 Certificates and any Distribution Date, a rate per
annum equal to the weighted average Net Mortgage Rate (weighted based on
the
principal balance of the Mortgage Loans as of the last day of the immediately
preceding due period (or as of the Cut-Off Date with respect to the first
Distribution Date), after giving effect to principal prepayments received
during
the related Prepayment Period). For
federal income tax purposes, for any Distribution Date with respect to the
REMIC
III Regular Interests the ownership which is represented by the Class A-2
Certificates, the REMIC II Remittance Rate for REMIC II Regular Interest
A-2 for
such Distribution Date. For the first Distribution Date, the Net WAC
Pass-Through Rate with respect to the Class A-2 Certificates and the REMIC
III
Regular Interests the ownership which is represented by the Class A-2
Certificates shall be multiplied by a fraction, the numerator of which is
30 and
the denominator of which is 25.
28
“Net
WAC
Rate Carryover Amount”: With respect to each Distribution Date prior to and
including the Optional Termination Date, if the Pass-Through Rate for the Class
A-1 Certificates is limited to the Net WAC Pass-Through Rate for such class,
an
amount equal to the sum of (i) the excess of (x) the amount of interest such
Class would have been entitled to receive on such Distribution Date if the
applicable Net WAC Pass-Through Rate would not have been applicable to such
Class on such Distribution Date over (y) the amount of interest accrued on
such
Distribution Date for such Class at the applicable Net WAC Pass-Through Rate
and
(ii) the related Net WAC Rate Carryover Amount for any previous Distribution
Date not previously distributed to such Class together with interest thereon
at
a rate equal to the Pass-Through Rate for such Class for the most recently
ended
Interest Accrual Period without taking into account the applicable Net WAC
Pass-Through Rate. With respect to each Distribution Date after the Optional
Termination Date, the Net WAC Rate Carryover Amount for the Class A-1
Certificates will equal zero.
“New
Lease”: Any lease of REO Property entered into on behalf of REMIC I, including
any lease renewed or extended on behalf of REMIC I, if REMIC I has the right
to
renegotiate the terms of such lease.
“Nonrecoverable
P&I Advance”: Any P&I Advance previously made or proposed to be made in
respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the related Servicer or a successor to the related Servicer
(including the Trustee) will not or, in the case of a proposed P&I Advance,
would not be ultimately recoverable from related Late Collections, Insurance
Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property as
provided herein or in the Servicing Agreement.
“Nonrecoverable
Servicing Advance”: Any Servicing Advance previously made or proposed to be made
in respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the related Servicer or a successor to a Servicer (including the
Trustee) will not or, in the case of a proposed Servicing Advance, would not
be
ultimately recoverable from related Late Collections, Insurance Proceeds or
Liquidation Proceeds on such Mortgage Loan or REO Property as provided herein
or
in the Servicing Agreement.
“Non-United
States Person”: Any Person other than a United States Person.
“Officer’s
Certificate”: With respect to any Person, a certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), or by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of such Person (or, in the case
of
a Person that is not a corporation, signed by a person or persons having like
responsibilities).
29
“One-Month
LIBOR”: With respect to the Class A-1 Certificate, REMIC II Regular Interests
and any Interest Accrual Period therefor, the rate determined by the Securities
Administrator on the related Interest Determination Date on the basis of the
offered rate for one-month U.S. dollar deposits, as such rate appears on Reuters
Screen LIBOR01 Page as of 11:00 a.m. (London time) on such Interest
Determination Date; provided that if such rate does not appear on Reuters Screen
LIBOR01 Page, the rate for such date will be determined on the basis of the
offered rates of the Reference Banks for one-month U.S. dollar deposits, as
of
11:00 a.m. (London time) on such Interest Determination Date. In such event,
the
Securities Administrator will request the principal London office of each of
the
Reference Banks to provide a quotation of its rate. If on such Interest
Determination Date, two or more Reference Banks provide such offered quotations,
One-Month LIBOR for the related Interest Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16). If on such Interest Determination Date, fewer than
two
Reference Banks provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the higher of (i) LIBOR as determined on the
previous Interest Determination Date and (ii) the Reserve Interest Rate.
Notwithstanding the foregoing, if, under the priorities described above, LIBOR
for an Interest Determination Date would be based on LIBOR for the previous
Interest Determination Date for the third consecutive Interest Determination
Date, the Securities Administrator shall select an alternative comparable index
(over which the Securities Administrator has no control), used for determining
one-month Eurodollar lending rates that is calculated and published (or
otherwise made available) by an independent party. The establishment of
One-Month LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the One-Month LIBOR Pass-Through Rate
for the relevant Interest Accrual Period, shall, in the absence of manifest
error, be final and binding.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be
salaried counsel for the Depositor, a Servicer, the Securities Administrator
or
the Master Servicer, acceptable to the Trustee, except that any opinion of
counsel relating to (a) the qualification of any REMIC as a REMIC or (b)
compliance with the REMIC Provisions must be an opinion of Independent counsel;
provided, however, any Opinion of Counsel provided by the Servicer pursuant
to
clause (b) above may be provided by internal counsel, provided that, the
delivery of such Opinion of Counsel shall not release the Servicer from any
of
its obligations hereunder and the Servicer shall be responsible for such
contemplated actions or inaction, as the case may be, to the extent it conflicts
with the terms of this Agreement.
“Optional
Termination Date”: The Distribution Date on which the aggregate principal
balance of the Mortgage Loans (and properties acquired in respect thereof)
remaining in the Trust Fund as of the last day of the related Due Period has
been reduced to less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
“Ownership
Interest”: As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
30
“P&I
Advance”: As to any Mortgage Loan or REO Property, any advance made by the
Servicer in respect of any Determination Date pursuant to Section 5.03 of
this Agreement or pursuant to the Servicing Agreement, an Advance Financing
Person pursuant to Section 3.25 of this Agreement or in respect of any
Distribution Date by a successor Servicer pursuant to Section 8.02 of this
Agreement (which advances shall not include principal or interest shortfalls
due
to bankruptcy proceedings or application of the Relief Act or similar state
or
local laws).
“PCAOB”:
The Public Company Accounting Oversight Board.
“Percentage
Interest”: With respect to any Class of Certificates (other than the Residual
Certificates), the undivided percentage ownership in such Class evidenced by
such Certificate, expressed as a percentage, the numerator of which is the
initial Certificate Principal Balance represented by such Certificate and the
denominator of which is the aggregate initial Certificate Principal Balance
of
all of the Certificates of such Class. The Class A Certificates and the
Subordinate Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Certificate Principal Balances of $25,000
and
integral multiples of $1.00 in excess thereof. With respect to any Residual
Certificate, the undivided percentage ownership in such Class evidenced by
such
Certificate, as set forth on the face of such Certificate. The Residual
Certificates are issuable in Percentage Interests of 20% and integral multiples
of 5% in excess thereof.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued by the Depositor, ▇▇▇▇▇ Fargo, the Master Servicer, the Trustee or any
of
their respective Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in the highest available rating
category of Moody’s and S&P and provided that each such investment has an
original maturity of no more than 365 days; and provided further that, if the
only Rating Agency is S&P and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations of
such
subsidiary are not separately rated, the applicable rating shall be that of
the
bank holding company; and, provided further that, if the original maturity
of
such short-term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating of
such
institution shall be A-1+ in the case of S&P if S&P is the Rating
Agency; and (B) any other demand or time deposit or deposit which is fully
insured by the FDIC;
31
(iii) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by each Rating Agency that rates such securities in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(iv) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by each Rating
Agency that rates such securities in its highest short-term unsecured debt
rating available at the time of such investment;
(v) units
of
money market funds that have been rated “AAAm” or “AAAm-G” by S&P or “Aaa”
by Moody’s including any such money market fund managed or advised by the Master
Servicer, the Trustee or any of their Affiliates; and
(vi) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to the Rating Agencies as a permitted investment of funds backing
securities having ratings equivalent to its highest initial rating of the Class
A Certificates;
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
“Permitted
Transferee”: Any Transferee of a Residual Certificate other than a Disqualified
Organization or Non-United States Person.
“Person”:
Any individual, limited liability company, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Prepayment
Assumption”: With respect to the Mortgage Loans, a prepayment rate of 300% PSA,
which represents (a) until the 30th
month of
the life of the Mortgage Loans, a per annum prepayment rate of 0.6% of the
then
outstanding principal balance of the Mortgage Loans in the first month of the
life of the Mortgage Loans and an additional approximate 0.6% per annum in
each
month thereafter until the 30th
month
and (b) a constant prepayment rate of 18% per annum beginning in the
30th
month
and in each month thereafter during the life of the Mortgage Loans. The
Prepayment Assumption is used solely for determining the accrual of original
issue discount on the Certificates for federal income tax purposes.
32
“Prepayment
Interest Excess”: With respect to each Mortgage Loan that was the subject of a
Principal Prepayment in full during the portion of the related Prepayment Period
occurring between the first day of the calendar month in which such Distribution
Date occurs and the thirteenth (13th)
day of
the calendar month in which such Distribution Date occurs, an amount equal
to
interest (to the extent received) at the applicable Net Mortgage Rate on the
amount of such Principal Prepayment for the number of days commencing on the
first day of the calendar month in which such Distribution Date occurs and
ending on the last date through which interest is collected from the related
Mortgagor. ▇▇▇▇▇ Fargo may withdraw such Prepayment Interest Excess from the
Collection Account in accordance with Section 3.09(a)(x) of this Agreement.
The entitlement, if any, of GMACM with respect to Prepayment Interest Excess
is
set forth in the Servicing Agreement.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each such
Mortgage Loan that was the subject of a Principal Prepayment in full or in
part
during the portion of the related Prepayment Period occurring between the first
day of the related Prepayment Period and the last day of the calendar month
preceding the month in which such Distribution Date occurs that was applied
by
the related Servicer to reduce the outstanding principal balance of such
Mortgage Loan on a date preceding the Due Date in the succeeding Prepayment
Period, an amount equal to interest at the applicable Net Mortgage Rate on
the
amount of such Principal Prepayment for the number of days commencing on the
date on which the prepayment is applied and ending on the last day of the
calendar month preceding such Distribution Date. The obligations of ▇▇▇▇▇ Fargo
and the Master Servicer in respect of any Prepayment Interest Shortfall are
set
forth in Section 3.22 and Section 4.19, respectively of this
Agreement. The obligations of GMACM in respect of Prepayment Interest Shortfalls
are set forth in the Servicing Agreement.
“Prepayment
Period”: For any Distribution Date (i) with respect to Principal Prepayments in
part, the calendar month immediately preceding the month in which the related
Distribution Date occurs and (ii) with respect to Principal Prepayments in
full,
the period from the 14th
day of
the month immediately preceding the month in which the related Distribution
Date
occurs (or with respect to the first Prepayment Period, the period commencing
on
the Cut-off Date) to the 13th
day of
the month in which such Distribution Date occurs.
“Principal
Distribution Amount”: With respect to any Distribution Date, the sum of (i) the
principal portion of all Monthly Payments on the Mortgage Loans due during
the
related Due Period, whether or not received on or prior to the related
Determination Date; (ii) the principal portion of all proceeds received in
respect of the repurchase of a Mortgage Loan or, in the case of a substitution,
certain amounts representing a principal adjustment, during the related
Prepayment Period pursuant to or as contemplated by Section 2.03,
Section 3.13(c) and Section 10.01 of this Agreement; and (iii) the
principal portion of all other unscheduled collections, including Insurance
Proceeds, Liquidation Proceeds and all Principal Prepayments in full and in
part, received during the related Prepayment Period, to the extent applied
as
recoveries of principal on the Mortgage Loans, net in each case of payments
or
reimbursements to the Trustee, the Custodian, the Credit Risk Manager, the
Master Servicer, the Securities Administrator or the Servicers.
33
“Principal
Prepayment”: Any voluntary payment of principal made by the Mortgagor on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any Due Date in any month or months subsequent to
the
month of prepayment.
“Privately
Offered Certificates”: The Class B-4, Class B-5 and Class B-6 Certificates,
collectively.
“Pro
Rata
Allocation”: With respect to any Distribution Date and any Class A Certificates
or Subordinate Certificates, pro rata according to their outstanding Certificate
Principal Balances in reduction thereof.
“Publicly
Offered Certificates”: The Class A-1, Class A-2, Class B-1, Class B-2 and Class
B-3 Certificates, collectively.
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased
pursuant to or as contemplated by Section 2.03, Section 3.13(c) or
Section 10.01 of this Agreement, and as confirmed by a certification of a
Servicing Officer of the related Servicer to the Trustee, an amount equal to
the
sum of (i) 100% of the Scheduled Principal Balance thereof as of the date of
purchase (or such other price as provided in Section 10.01 of this
Agreement), (ii) in the case of (x) a Mortgage Loan, accrued interest on such
Scheduled Principal Balance at the applicable Net Mortgage Rate in effect from
time to time from the Due Date as to which interest was last covered by a
payment by the Mortgagor or a P&I Advance by a Servicer, which payment or
P&I Advance had as of the date of purchase been distributed pursuant to
Section 5.01 of this Agreement, through the end of the calendar month in
which the purchase is to be effected and (y) an REO Property, the sum of (1)
accrued interest on such Scheduled Principal Balance at the applicable Net
Mortgage Rate in effect from time to time from the Due Date as to which interest
was last covered by a payment by the Mortgagor or a P&I Advance by a
Servicer through the end of the calendar month immediately preceding the
calendar month in which such REO Property was acquired, plus (2) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the total of
all
net rental income, Insurance Proceeds, Liquidation Proceeds and P&I Advances
that as of the date of purchase had been distributed as or to cover REO Imputed
Interest pursuant to Section 5.01 of this Agreement, (iii) any unreimbursed
Servicing Advances and P&I Advances (including Nonrecoverable P&I
Advances and Nonrecoverable Servicing Advances) and any unpaid Servicing Fees
allocable to such Mortgage Loan or REO Property and (iv) in the case of a
Mortgage Loan required to be purchased pursuant to Section 2.03 of this
Agreement, expenses reasonably incurred or to be incurred by the related
Servicer or the Trustee in respect of the breach or defect giving rise to the
purchase obligation and any costs and damages incurred by the Trust Fund and
the
Trustee in connection with any violation by any such Mortgage Loan of any
predatory or abusive lending law.
“QIB”:
As
defined in Section 6.01(c).
34
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan pursuant to the terms of this Agreement which must, on the date of such
substitution, (i) have an outstanding principal balance, after application
of
all scheduled payments of principal and interest due during or prior to the
month of substitution, not in excess of the Scheduled Principal Balance of
the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) have a Mortgage Rate not less than (and not more
than
one percentage point in excess of) the Mortgage Rate of the Deleted Mortgage
Loan, (iii) have a remaining term to maturity not greater than (and not more
than one year less than) that of the Deleted Mortgage Loan, (iv) have the same
Due Date as the Due Date on the Deleted Mortgage Loan, (v) have 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, (vi) be secured by the
same
lien priority on the related Mortgaged Property as the Deleted Mortgage Loan,
(vii) have a credit grade at least equal to the credit grading assigned on
the
Deleted Mortgage Loan, (viii) be a “qualified mortgage” as defined in the REMIC
Provisions and (ix) conform to each representation and warranty set forth in
Section 6 of the Mortgage Loan Purchase Agreement applicable to the Deleted
Mortgage Loan. In the event that one or more mortgage loans are substituted
for
one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the basis of aggregate principal balances, the Mortgage
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Rates, the terms described in clause (vii) hereof
shall be determined on the basis of weighted average remaining term to maturity,
the Loan-to-Value Ratios described in clause (ix) hereof shall be satisfied
as
to each such mortgage loan, the credit grades described in clause (x) 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 (xiii) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be.
“Rate/Term
Refinancing”: A Refinanced Mortgage Loan, the proceeds of which are not more
than a nominal amount in excess of the existing first mortgage loan and any
subordinate mortgage loan on the related Mortgaged Property and related closing
costs, and were used exclusively (except for such nominal amount) to satisfy
the
then existing first mortgage loan and any subordinate mortgage loan of the
Mortgagor on the related Mortgaged Property and to pay related closing
costs.
“Rating
Agency or Rating Agencies”: Moody’s, S&P and DBRS or their successors. If
such agencies or their successors are no longer in existence, “Rating Agencies”
shall be such nationally recognized statistical rating agencies, or other
comparable Persons, designated by the Depositor, notice of which designation
shall be given to the Trustee and the Servicers.
“Realized
Loss”: With respect to each Mortgage Loan as to which a Final Recovery
Determination has been made, an amount (not less than zero), as reported by
the
related Servicer to the Master Servicer (in substantially the form of Schedule
4
hereto), equal to (i) the unpaid principal balance of such Mortgage Loan as
of
the commencement of the calendar month in which the Final Recovery Determination
was made, plus (ii) accrued interest from the Due Date as to which interest
was
last paid by the Mortgagor through the end of the calendar month in which such
Final Recovery Determination was made, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at
which
interest was then accruing on such Mortgage Loan and (B) on a principal amount
equal to the Scheduled Principal Balance of such Mortgage Loan as of the close
of business on the Distribution Date during such calendar month, plus (iii)
any
amounts previously withdrawn from the Collection Account or the Custodial
Account in respect of such Mortgage Loan pursuant to Section 3.09(a)(ix)
and Section 3.13(b) of this Agreement or pursuant to corresponding sections
of the Servicing Agreement, minus (iv) the proceeds, if any, received in respect
of such Mortgage Loan during the calendar month in which such Final Recovery
Determination was made, net of amounts that are payable therefrom to the related
Servicer with respect to such Mortgage Loan pursuant to
Section 3.09(a)(iii) of this Agreement or pursuant to the Servicing
Agreement.
35
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the unpaid principal balance
of the related Mortgage Loan as of the date of acquisition of such REO Property
on behalf of REMIC I, plus (ii) accrued interest from the Due Date as to which
interest was last paid by the Mortgagor in respect of the related Mortgage
Loan
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at
which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Scheduled Principal Balance of the related Mortgage Loan
as
of the close of business on the Distribution Date during such calendar month,
plus (iii) REO Imputed Interest for such REO Property for each calendar month
commencing with the calendar month in which such REO Property was acquired
and
ending with the calendar month in which such Final Recovery Determination was
made, plus (iv) any amounts previously withdrawn from the Collection Account
or
the Custodial Account in respect of the related Mortgage Loan pursuant to
Section 3.09(a)(ix) and Section 3.13(b) of this Agreement or pursuant
to corresponding sections of the Servicing Agreement, minus (v) the aggregate
of
all P&I Advances and Servicing Advances (in the case of Servicing Advances,
without duplication of amounts netted out of the rental income, Insurance
Proceeds and Liquidation Proceeds described in clause (vi) below) made by the
related Servicer in respect of such REO Property or the related Mortgage Loan
for which the related Servicer has been or, in connection with such Final
Recovery Determination, will be reimbursed pursuant to Section 3.21 of this
Agreement or pursuant to the Servicing Agreement out of rental income, Insurance
Proceeds and Liquidation Proceeds received in respect of such REO Property,
minus (vi) the total of all net rental income, Insurance Proceeds and
Liquidation Proceeds received in respect of such REO Property that has been,
or
in connection with such Final Recovery Determination, will be transferred to
the
Distribution Account pursuant to Section 3.21 of this Agreement or pursuant
to the Servicing Agreement.
With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
With
respect to each Mortgage Loan which has become the subject of a Debt Service
Reduction, the portion, if any, of the reduction in each affected Monthly
Payment attributable to a reduction in the Mortgage Rate imposed by a court
of
competent jurisdiction. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
36
To
the
extent the related Servicer receives Subsequent Recoveries, with respect to
any
Mortgage Loan, the amount of Realized Loss with respect to that Mortgage Loan
will be reduced to the extent such recoveries are applied to reduce the
Certificate Principal Balance of any Class of Certificates on any Distribution
Date.
“Record
Date”: With
respect to each Distribution Date and the Class A Certificates, the Business
Day
immediately preceding such Distribution Date for so long as such Certificates
are Book-Entry Certificates. With
respect to each Distribution Date and the Subordinate Certificates, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs for so long as such Certificates are Book-Entry
Certificates. With respect to each Distribution Date and any other Class of
Certificates, including any Definitive Certificates, the last day of the
calendar month immediately preceding the month in which such Distribution Date
occurs.
“Reference
Banks”: Barclays Bank PLC, The Tokyo Mitsubishi Bank and National Westminster
Bank PLC and their successors in interest; provided, however, that if any of
the
foregoing banks are not suitable to serve as a Reference Bank, then any leading
banks selected by the Securities Administrator which are engaged in transactions
in Eurodollar deposits in the International Eurocurrency market (i) with an
established place of business in London, (ii) not controlling, under the control
of or under common control with the Depositor or any Affiliate thereof and
(iii)
which have been designated as such by the Securities Administrator.
“Refinanced
Mortgage Loan”: A Mortgage Loan the proceeds of which were not used to purchase
the related Mortgaged Property.
“Regular
Certificate”: Any Class A Certificate or Subordinate Certificate.
“Regular
Interest”: A “regular interest” in a REMIC within the meaning of
Section 860G(a)(1) of the Code.
“Regulation
AB”: Means 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 Temporary Global Certificate”: As defined in
Section 6.01(c).
“Regulation
S Permanent Global Certificate”: As defined in
Section 6.01(c).
“Release
Date”: The fortieth (40th) day after the later of (i) commencement of the
offering of the Certificates and (ii) the Closing Date.
37
“Relevant
Servicing Criteria”: Means the Servicing Criteria applicable to the various
parties, as set forth on Exhibit E attached hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Trustee or a Servicer, the term
“Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing
Criteria applicable to such parties.
“Relief
Act”: The Servicemembers Civil Relief Act, as amended, or similar state
laws.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date and any Mortgage
Loan, any reduction in the amount of interest collectible on such Mortgage
Loan
for the most recently ended Due Period as a result of the application of the
Relief Act.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
“REMIC
I”: The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made, consisting of: (i) such Mortgage Loans as from time
to
time are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof; (ii)
any REO Property, together with all collections thereon and proceeds thereof;
(iii) the Trustee’s rights with respect to the Mortgage Loans under all
insurance policies required to be maintained pursuant to this Agreement and
any
proceeds thereof; (iv) the Depositor’s rights under the Mortgage Loan Purchase
Agreement, the Assignment Agreement and the Servicing Agreement (including
any
security interest created thereby); and (v) the Collection Account, the
Custodial Account, the Distribution Account and any REO Account, and such assets
that are deposited therein from time to time and any investments thereof,
together with any and all income, proceeds and payments with respect thereto.
Notwithstanding the foregoing, however, REMIC I specifically excludes (i) all
payments and other collections of principal and interest due on the Mortgage
Loans on or before the Cut-off; (ii) the Class A Swap Agreement; and (iii)
the
Supplemental Interest Trust.
“REMIC
I
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto. The designations for the respective REMIC I
Regular Interests are set forth in the Preliminary Statement
hereto.
“REMIC
I
Remittance Rate”:
With
respect to REMIC I Regular Interest IA, a per annum rate equal the weighted
average Net Mortgage Rate (weighted based on the principal balances of the
Mortgage Loans as of the last day of the immediately preceding due period (or
as
of the Cut-off Date with respect to the first Distribution Date), after giving
effect to principal prepayments received during the related Prepayment Period).
With respect to each REMIC I Regular Interest ending with the designation “A”, a
per annum rate equal the weighted average Net Mortgage Rate (weighted based
on
the principal balances of the Mortgage Loans as of the last day of the
immediately preceding due period (or as of the Cut-off Date with respect to
the
first Distribution Date), after giving effect to principal prepayments received
during the related Prepayment Period), multiplied by 2, subject to a maximum
rate of 10.4400%.
With
respect to each REMIC I Regular Interest ending with the designation “B”, the
greater of (x) a per annum rate equal to the excess, if any, of (i) 2 multiplied
by the weighted average Net Mortgage Rate (weighted based on the principal
balances of the Mortgage Loans as of the last day of the immediately preceding
due period (or as of the Cut-off Date with respect to the first Distribution
Date), after giving effect to principal prepayments received during the related
Prepayment Period), over (ii) 10.4400% and (y) 0.00%.
38
“REMIC
II”: The segregated pool of assets consisting of all of the REMIC I Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC II
Regular Interests pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
“REMIC
II
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a “regular interest” in
REMIC II. Each REMIC II Regular Interest shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto. The designations for the respective REMIC II
Regular Interests are set forth in the Preliminary Statement
hereto.
“REMIC
II
Regular Interest A-1”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest A-1 shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto.
“REMIC
II
Regular Interest A-2”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest A-2 shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto.
“REMIC
II
Regular Interest IO”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest IO shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time and shall not be entitled
to distributions of principal.
“REMIC
II
Regular Interest B-1”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest B-1 shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto.
39
“REMIC
II
Regular Interest B-2”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest B-2 shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto.
“REMIC
II
Regular Interest B-3”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest B-3 shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto.
“REMIC
II
Regular Interest B-4”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest B-4 shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto.
“REMIC
II
Regular Interest B-5”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest B-5 shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto.
“REMIC
II
Regular Interest B-6”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest B-6 shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto.
“REMIC
II
Remittance Rate”: With respect to REMIC II Regular Interest A-2, REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-3, REMIC II Regular Interest B-4, REMIC II Regular Interest B-5, and REMIC
II
Regular Interest B-6, a per annum rate (but not less than zero) equal to the
REMIC I Remittance Rate for REMIC I Regular Interest IA.
40
REMIC
II
Regular Interest A-1, a per annum rate (but not less than zero) equal to the
weighted average of: (x) with respect to REMIC I Regular Interests ending with
the designation “B”, the weighted average of the REMIC I Remittance Rates for
such REMIC I Regular Interests, weighted on the basis of the Uncertificated
Balances of each such REMIC I Regular Interest for each such Distribution Date
and (y) with respect to REMIC I Regular Interests ending with the designation
“A”, for each Distribution Date listed below, the weighted average of the rates
listed below for such REMIC I Regular Interests listed below, weighted on the
basis of the Uncertificated Balances of each such REMIC I Regular Interest
for
each such Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
||
|
1
|
I-1-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
2
|
I-2-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
|
REMIC
I Remittance Rate
|
|||
|
3
|
I-3-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
and I-2-A
|
REMIC
I Remittance Rate
|
|||
|
5
|
I-4-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-3-A
|
REMIC
I Remittance Rate
|
|||
|
5
|
I-5-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-4-A
|
REMIC
I Remittance Rate
|
|||
|
6
|
I-6-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-5-A
|
REMIC
I Remittance Rate
|
|||
|
7
|
I-7-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-6-A
|
REMIC
I Remittance Rate
|
|||
|
8
|
I-8-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-7-A
|
REMIC
I Remittance Rate
|
|||
|
9
|
I-9-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-8-A
|
REMIC
I Remittance Rate
|
|||
|
10
|
I-10-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-9-A
|
REMIC
I Remittance Rate
|
|||
|
11
|
I-11-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-10-A
|
REMIC
I Remittance Rate
|
|||
|
12
|
I-12-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-11-A
|
REMIC
I Remittance Rate
|
|||
|
13
|
I-13-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-12-A
|
REMIC
I Remittance Rate
|
41
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
14
|
I-14-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-13-A
|
REMIC
I Remittance Rate
|
|||
|
15
|
I-15-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-14-A
|
REMIC
I Remittance Rate
|
|||
|
16
|
I-16-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-15-A
|
REMIC
I Remittance Rate
|
|||
|
17
|
I-17-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-16-A
|
REMIC
I Remittance Rate
|
|||
|
18
|
I-18-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-17-A
|
REMIC
I Remittance Rate
|
|||
|
19
|
I-19-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-18-A
|
REMIC
I Remittance Rate
|
|||
|
20
|
I-20-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-19-A
|
REMIC
I Remittance Rate
|
|||
|
21
|
I-21-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-20-A
|
REMIC
I Remittance Rate
|
|||
|
22
|
I-22-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-21-A
|
REMIC
I Remittance Rate
|
|||
|
23
|
I-23-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-22-A
|
REMIC
I Remittance Rate
|
|||
|
24
|
I-24-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-23-A
|
REMIC
I Remittance Rate
|
|||
|
25
|
I-25-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-24-A
|
REMIC
I Remittance Rate
|
|||
|
26
|
I-26-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-25-A
|
REMIC
I Remittance Rate
|
|||
|
27
|
I-27-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-26-A
|
REMIC
I Remittance Rate
|
|||
|
28
|
I-28-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-27-A
|
REMIC
I Remittance Rate
|
42
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
29
|
I-29-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-28-A
|
REMIC
I Remittance Rate
|
|||
|
30
|
I-30-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-29-A
|
REMIC
I Remittance Rate
|
|||
|
31
|
I-31-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-30-A
|
REMIC
I Remittance Rate
|
|||
|
32
|
I-32-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-31-A
|
REMIC
I Remittance Rate
|
|||
|
33
|
I-33-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-32-A
|
REMIC
I Remittance Rate
|
|||
|
34
|
I-34-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-33-A
|
REMIC
I Remittance Rate
|
|||
|
35
|
I-35-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-34-A
|
REMIC
I Remittance Rate
|
|||
|
36
|
I-36-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-35-A
|
REMIC
I Remittance Rate
|
|||
|
37
|
I-37-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-36-A
|
REMIC
I Remittance Rate
|
|||
|
38
|
I-38-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-37-A
|
REMIC
I Remittance Rate
|
|||
|
39
|
I-39-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-38-A
|
REMIC
I Remittance Rate
|
|||
|
40
|
I-40-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-39-A
|
REMIC
I Remittance Rate
|
|||
|
41
|
I-41-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-40-A
|
REMIC
I Remittance Rate
|
|||
|
42
|
I-42-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-41-A
|
REMIC
I Remittance Rate
|
|||
|
43
|
I-43-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-42-A
|
REMIC
I Remittance Rate
|
43
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
44
|
I-44-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-43-A
|
REMIC
I Remittance Rate
|
|||
|
45
|
I-45-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-44-A
|
REMIC
I Remittance Rate
|
|||
|
46
|
I-46-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-45-A
|
REMIC
I Remittance Rate
|
|||
|
47
|
I-47-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-46-A
|
REMIC
I Remittance Rate
|
|||
|
48
|
I-48-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-47-A
|
REMIC
I Remittance Rate
|
|||
|
59
|
I-49-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-48-A
|
REMIC
I Remittance Rate
|
|||
|
50
|
I-50-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-49-A
|
REMIC
I Remittance Rate
|
|||
|
51
|
I-51-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-50-A
|
REMIC
I Remittance Rate
|
|||
|
52
|
I-52-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-51-A
|
REMIC
I Remittance Rate
|
|||
|
53
|
I-53-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-52-A
|
REMIC
I Remittance Rate
|
|||
|
54
|
I-54-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-53-A
|
REMIC
I Remittance Rate
|
|||
|
55
|
I-55-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-54-A
|
REMIC
I Remittance Rate
|
|||
|
56
|
I-56-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-55-A
|
REMIC
I Remittance Rate
|
|||
|
57
|
I-57-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-56-A
|
REMIC
I Remittance Rate
|
|||
|
58
|
I-58-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-57-A
|
REMIC
I Remittance Rate
|
44
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
59
|
I-59-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-58-A
|
REMIC
I Remittance Rate
|
|||
|
60
|
I-60-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-59-A
|
REMIC
I Remittance Rate
|
|||
|
61
|
I-61-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-60-A
|
REMIC
I Remittance Rate
|
|||
|
62
|
I-62-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-61-A
|
REMIC
I Remittance Rate
|
|||
|
63
|
I-63-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-62-A
|
REMIC
I Remittance Rate
|
|||
|
64
|
I-64-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-63-A
|
REMIC
I Remittance Rate
|
|||
|
65
|
I-65-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-64-A
|
REMIC
I Remittance Rate
|
|||
|
66
|
I-66-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-65-A
|
REMIC
I Remittance Rate
|
|||
|
67
|
I-67-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-66-A
|
REMIC
I Remittance Rate
|
|||
|
68
|
I-68-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-67-A
|
REMIC
I Remittance Rate
|
|||
|
69
|
I-69-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-68-A
|
REMIC
I Remittance Rate
|
|||
|
70
|
I-70-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-69-A
|
REMIC
I Remittance Rate
|
|||
|
71
|
I-71-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-70-A
|
REMIC
I Remittance Rate
|
|||
|
72
|
I-72-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-71-A
|
REMIC
I Remittance Rate
|
|||
|
73
|
I-73-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-72-A
|
REMIC
I Remittance Rate
|
45
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
74
|
I-74-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-73-A
|
REMIC
I Remittance Rate
|
|||
|
75
|
I-75-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-74-A
|
REMIC
I Remittance Rate
|
|||
|
76
|
I-76-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-75-A
|
REMIC
I Remittance Rate
|
|||
|
77
|
I-77-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-76-A
|
REMIC
I Remittance Rate
|
|||
|
78
|
I-78-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-77-A
|
REMIC
I Remittance Rate
|
|||
|
79
|
I-79-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-78-A
|
REMIC
I Remittance Rate
|
|||
|
80
|
I-80-A
and I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-19-A
|
REMIC
I Remittance Rate
|
|||
|
81
|
I-81-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-80-A
|
REMIC
I Remittance Rate
|
|||
|
82
|
I-82-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-81-A
|
REMIC
I Remittance Rate
|
|||
|
83
|
I-83-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-82-A
|
REMIC
I Remittance Rate
|
|||
|
84
|
I-84-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-83-A
|
REMIC
I Remittance Rate
|
|||
|
85
|
I-85-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-24-A
|
REMIC
I Remittance Rate
|
|||
|
86
|
I-86-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-85-A
|
REMIC
I Remittance Rate
|
|||
|
87
|
I-87-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-86-A
|
REMIC
I Remittance Rate
|
|||
|
88
|
I-88-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-87-A
|
REMIC
I Remittance Rate
|
46
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
89
|
I-89-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-88-A
|
REMIC
I Remittance Rate
|
|||
|
90
|
I-90-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-89-A
|
REMIC
I Remittance Rate
|
|||
|
91
|
I-91-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-90-A
|
REMIC
I Remittance Rate
|
|||
|
92
|
I-92-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-91-A
|
REMIC
I Remittance Rate
|
|||
|
93
|
I-93-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-92-A
|
REMIC
I Remittance Rate
|
|||
|
94
|
I-94-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-93-A
|
REMIC
I Remittance Rate
|
|||
|
95
|
I-95-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-94-A
|
REMIC
I Remittance Rate
|
|||
|
96
|
I-96-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-95-A
|
REMIC
I Remittance Rate
|
|||
|
97
|
I-97-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-96-A
|
REMIC
I Remittance Rate
|
|||
|
98
|
I-98-A
through I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-97-A
|
REMIC
I Remittance Rate
|
|||
|
99
|
I-99-A
and I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-98-A
|
REMIC
I Remittance Rate
|
|||
|
100
|
I-100-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
||
|
I-1-A
through I-99-A
|
REMIC
I Remittance Rate
|
|||
|
thereafter
|
I-1-A
through I-100-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest IO, and (i) the 1st
Distribution Date through the 100th
Distribution Date, the excess of (x) the weighted average of the REMIC I
Remittance Rates for REMIC I Regular Interests including the designation “A”,
over (y) 2 multiplied by Swap LIBOR and (iii) thereafter, 0.00%.
47
“REMIC
III”: The segregated pool of assets consisting of all of the REMIC II Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC III
Regular Interests pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
“REMIC
III Certificate”: Any Regular Certificate or Class R Certificate.
“REMIC
III Certificateholder”: The Holder of any REMIC III Certificate.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits, which appear at Section 860A through 860G of
the Code, and related provisions, and proposed, temporary and final regulations
and published rulings, notices and announcements promulgated thereunder, as
the
foregoing may be in effect from time to time.
“REMIC
Regular Interest”: Any REMIC I Regular Interest or REMIC II Regular
Interest.
“REMIC
Remittance Rate”: The REMIC I Remittance Rate or the REMIC II Remittance
Rate.
“Remittance
Report”: A report by ▇▇▇▇▇ Fargo pursuant to Section 5.03(a) of this
Agreement or by GMACM pursuant to the Servicing Agreement.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code as being included in the
term “rents from real property.”
“REO
Account”: The account or accounts maintained, or caused to be maintained, by
▇▇▇▇▇ Fargo in respect of an REO Property pursuant to Section 3.21 of this
Agreement or by GMACM pursuant to the Servicing Agreement.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of
REMIC I.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of REMIC I, one month’s interest at the
applicable Net Mortgage Rate on the Scheduled Principal Balance of such REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan, if appropriate) as of the close of business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 of this Agreement that
is allocable to such REO Property) or otherwise, net of any portion of such
amounts (i) payable in respect of the proper operation, management and
maintenance of such REO Property or (ii) payable or reimbursable to ▇▇▇▇▇ Fargo
pursuant to Section 3.21(d) of this Agreement or GMACM pursuant to the
Servicing Agreement for unpaid Servicing Fees in respect of the related Mortgage
Loan and unreimbursed Servicing Advances and P&I Advances in respect of such
REO Property or the related Mortgage Loan, over (b) the REO Imputed Interest
in
respect of such REO Property for such calendar month.
48
“REO
Property”: A Mortgaged Property acquired by ▇▇▇▇▇ Fargo or its nominee on behalf
of REMIC I through foreclosure or deed-in-lieu of foreclosure, as described
in
Section 3.21 of this Agreement or GMACM pursuant to the Servicing
Agreement.
“Reportable
Event”: Has the meaning set forth in Section 5.06(b) of this
Agreement.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Securities Administrator determines to be either (i) the
arithmetic mean (rounded upwards if necessary to the nearest whole multiple
of
1/16%) of the one-month U.S. dollar lending rates which New York City banks
selected by the Securities Administrator, after consultation with the Depositor,
are quoting on the relevant Interest Determination Date to the principal London
offices of leading banks in the London interbank market or (ii) in the event
that the Securities Administrator can determine no such arithmetic mean, the
lowest one-month U.S. dollar lending rate which New York City banks selected
by
the Securities Administrator are quoting on such Interest Determination Date
to
leading European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
▇▇▇▇▇▇ Mae eligible condominium project, (iv) a detached one-family dwelling
in
a planned unit development or (v) a townhouse, none of which is a co-operative
or mobile home.
“Residual
Certificate”: Any one of the Class R Certificates.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee, any officer of the Trustee
having direct responsibility for the administration of this Agreement and,
with
respect to a particular matter, to whom such matter is referred because of
such
officer’s knowledge of and familiarity with the particular subject.
“Reuters
Screen LIBOR01 Page”: The display page currently so designated on the Reuters
Monitor Money Rates Service (or such other page as may replace that page on
that
service for the purpose of displaying comparable rates or prices).
“Rule
144A”: As defined in Section 6.01(c).
“S&P”:
Standard & Poor’s Ratings Services, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
49
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”: Means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (including any interpretations thereof by
the
Commission’s staff).
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”: A written certification signed by an officer of the Master
Servicer that complies with (i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as amended from time
to
time, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from
time to time; provided that if, after the Closing Date (a) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act is amended, (b) the Rules referred to in clause (ii) are modified or
superseded by any subsequent statement, rule or regulation of the Commission
or
any statement of a division thereof, or (c) any future releases, rules and
regulations are published by the Commission from time to time pursuant to the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, which in any such case affects the form or substance of
the
required certification and results in the required certification being, in
the
reasonable judgment of the Master Servicer, materially more onerous that then
form of the required certification as of the Closing Date, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification shall be as agreed to by the Master Servicer, the Depositor and
the Sponsor following a negotiation in good faith to determine how to comply
with any such new requirements.
“Scheduled
Principal Balance”: With respect to any Mortgage Loan: (a) as of the Cut-off
Date, the outstanding principal balance of such Mortgage Loan as of such date,
net of the principal portion of all unpaid Monthly Payments, if any, due on
or
before such date; (b) as of any Due Date subsequent to the Cut-off Date, up
to
and including the Due Date in the calendar month in which a Liquidation Event
occurs with respect to such Mortgage Loan, the Scheduled Principal Balance
of
such Mortgage Loan as of the Cut-off Date, minus the sum of (i) the principal
portion of each Monthly Payment due on or before such Due Date but subsequent
to
the Cut-off Date, whether or not received, (ii) all Principal Prepayments
received before such Due Date but after the Cut-off Date, (iii) the principal
portion of all Liquidation Proceeds and Insurance Proceeds received before
such
Due Date but after the Cut-off Date, net of any portion thereof that represents
principal due (without regard to any acceleration of payments under the related
Mortgage and Mortgage Note) on a Due Date occurring on or before the date on
which such proceeds were received and (iv) any Realized Loss incurred with
respect thereto as a result of a Deficient Valuation occurring before such
Due
Date, but only to the extent such Realized Loss represents a reduction in the
portion of principal of such Mortgage Loan not yet due (without regard to any
acceleration of payments under the related Mortgage and Mortgage Note) as of
the
date of such Deficient Valuation; and (c) as of any Due Date subsequent to
the
occurrence of a Liquidation Event with respect to such Mortgage Loan, zero.
With
respect to any REO Property: (a) as of any Due Date subsequent to the date
of
its acquisition on behalf of the Trust Fund up to and including the Due Date
in
the calendar month in which a Liquidation Event occurs with respect to such
REO
Property, an amount (not less than zero) equal to the Scheduled Principal
Balance of the related Mortgage Loan as of the Due Date in the calendar month
in
which such REO Property was acquired, minus the aggregate amount of REO
Principal Amortization, if any, in respect of REO Property for all previously
ended calendar months; and (b) as of any Due Date subsequent to the occurrence
of a Liquidation Event with respect to such REO Property, zero.
“Securities
Act”: The Securities Act of 1933, as amended and the rules and regulations
thereunder.
50
“Securities
Administrator”: As of the Closing Date, ▇▇▇▇▇ Fargo Bank, National Association
and thereafter, its respective successors in interest that meet the
qualifications of this Agreement. The Securities Administrator and the Master
Servicer shall at all times be the same Person or Affiliates.
“Senior
Certificates”: The Class A Certificates.
“Senior
Interest Distribution Amount”: With respect to any Distribution Date, an amount
equal to the aggregate amount of Monthly Payments of interest received or
advanced on the Mortgage Loans during the related Due Period net of the
Administration Fees plus any amounts in respect of Prepayment Interest
Shortfalls payable by the Servicers or the Master Servicer minus the Subordinate
Interest Distribution Amount for such Distribution Date.
“Senior
Interest Shortfall Amount”: With respect to any Distribution Date and a class of
Senior Certificates, the amount by which the Accrued Certificate Interest
payable to such Class of Senior Certificates on such Distribution Date exceeds
the Available Distribution Amount.
“Senior
Liquidation Amount”: With respect to any Distribution Date, for each Mortgage
Loan which became a Liquidated Loan during the calendar month preceding the
month of such Distribution Date, the aggregate of the lesser of (1) the Senior
Percentage of the principal balance of such Mortgage Loan and (2) the Senior
Prepayment Percentage of the Liquidation Principal with respect to such Mortgage
Loan.
“Senior
Percentage”: With respect to any Distribution Date, the percentage equivalent of
a fraction, not less than zero, the numerator of which is the aggregate
Certificate Principal Balance of the Senior Certificates immediately prior
to
such Distribution Date, and the denominator of which is the sum of the principal
balances of the Mortgage Loans as of the first day of the related Due Period.
“Senior
Prepayment Percentage”: With respect to any Distribution Date occurring during
the five years beginning on the first Distribution Date, 100%, and for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date will be as follows: for any Distribution Date in the first
year thereafter, the Senior Percentage plus 70% of the Subordinate Percentage
for the Distribution Date; for any Distribution Date in the second year
thereafter, the Senior Percentage plus 60% of the Subordinate Percentage for
the
Distribution Date; for any Distribution Date in the third year thereafter,
the
Senior Percentage plus 40% of the Subordinate Percentage for the Distribution
Date; for any Distribution Date in the fourth year thereafter, the Senior
Percentage plus 20% of the Subordinate Percentage for the Distribution Date;
and
for any Distribution Date thereafter, the Senior Percentage for the Distribution
Date (unless on any Distribution Date the Senior Percentage exceeds the initial
Senior Percentage as of the Closing Date, in which case the Senior Prepayment
Percentage for such Distribution Date will once again equal 100%).
51
Notwithstanding
the foregoing, the Senior Prepayment Percentage will equal 100% unless both
of
the step down conditions listed below are satisfied with respect to all of
the
Mortgage Loans:
(a) the
aggregate principal balance of all of the Mortgage Loans delinquent 60 days
or
more (including any Mortgage Loans in foreclosure, real estate owned by the
Trust Fund and Mortgage Loans the Mortgagors of which are in bankruptcy)
(averaged over the preceding six month period), as a percentage of (i) if such
date is on or prior to a Senior Termination Date, the Subordinate Percentage
of
the aggregate principal balance of the Mortgage Loans, or (ii) if such date
is
after a Senior Termination Date, the aggregate Certificate Principal Balance
of
the Subordinate Certificates, is less than 50%; and
(b) cumulative
Realized Losses on the Mortgage Loans do not exceed:
(i) for
the
Distribution Date on the fifth anniversary of the first Distribution Date,
30%
of (x) if such date is on or prior to a Senior Termination Date, the Subordinate
Percentage of the aggregate principal balance of the Mortgage Loans as of the
Cut-Off Date or (y) if such date is after a Senior Termination Date, the
aggregate Certificate Principal Balance of the Subordinate Certificates as
of
the Closing Date;
(ii) for
the
Distribution Date on the sixth anniversary of the first Distribution Date,
35%
of the original subordinate principal balance;
(iii) for
the
Distribution Date on the seventh anniversary of the first Distribution Date,
40%
of the original subordinate principal balance;
(iv) for
the
Distribution Date on the eighth anniversary of the first Distribution Date,
45%
of the original subordinate principal balance; and
(v) for
the
Distribution Date on the ninth anniversary of the first Distribution Date,
50%
of the original subordinate principal balance.
“Senior
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of the following for that Distribution Date:
(i) the
Senior Percentage of the Principal Distribution Amount;
(ii) the
Senior Prepayment Percentage of the Principal Prepayment Amount;
and
(iii) the
Senior Liquidation Amount.
“Senior
Termination Date”: The Distribution Date on which the Certificate Principal
Balances of all of the Senior Certificates have been reduced to
zero.
“Servicer”:
▇▇▇▇▇ Fargo or GMACM, or any successor thereto appointed hereunder in connection
with the servicing and administration of the Mortgage Loans; provided, however
then GMACM shall only be a Servicer of the related GMACM Mortgage Loans until
the related Servicing Transfer Date.
52
“Servicer
Event of Default”: One or more of the events described in Section 8.01(a)
of this Agreement.
“Servicer
Remittance Date”: With respect to any Distribution Date and (A) ▇▇▇▇▇ Fargo, the
18th
day of
each month; provided that if the 18th day
of a
given month is not a Business Day, the Servicer Remittance Date shall be the
immediately preceding Business Day and (B) GMACM, as set forth in the Servicing
Agreement.
“Servicer
Report”: A report (substantially in the form of Schedule 5 hereto) or otherwise
in form and substance acceptable to the Master Servicer and Securities
Administrator on an electronic data file or tape prepared by the related
Servicer pursuant to Section 5.03(a) of this Agreement or pursuant to the
Servicing Agreement, as applicable, with such additions, deletions and
modifications as agreed to by the Master Servicer, the Securities Administrator
and the related Servicer.
“Service(s)(ing)”:
Means, in accordance with Regulation AB, the act of servicing and administering
the Mortgage Loans or any other assets of the Trust by an entity that meets
the
definition of “servicer” set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in Item 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
“Servicing
Advances”: The customary and reasonable “out-of-pocket” costs and expenses
incurred prior to or on or after the Cut-off Date (the amounts incurred prior
to
the Cut-off Date shall be identified on the Servicing Advance Schedule by (a)
a
Servicer with respect to any Mortgage Loans that were transferred to such
Servicer prior to the Cut-off Date and/or (b) the Depositor with respect to
any
Mortgage Loans that were transferred to a Servicer after the Cut-off Date,
as
applicable) by such Servicer in connection with a default, delinquency or other
unanticipated event by such Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any enforcement or
judicial proceedings, including but not limited to foreclosures, in respect
of a
particular Mortgage Loan, including any expenses incurred in relation to any
such proceedings that result from the Mortgage Loan being registered on the
MERS® System, (iii) the management (including reasonable fees in connection
therewith) and liquidation of any REO Property, (iv) the performance of its
obligations under Section 3.01, Section 3.07, Section 3.11,
Section 3.13 and Section 3.22 of this Agreement or the similar
provisions of the Servicing Agreement, as applicable; (v) refunding to any
Mortgagor the portion of any prepaid origination fees or finance charges that
are subject to reimbursement upon a principal prepayment of the related Mortgage
Loan to the extent such refund is required by applicable law; and (vi) obtaining
any legal documentation required to be included in the Mortgage File and/or
correcting any outstanding title issues (i.e., any lien or encumbrance on the
Mortgaged Property that prevents the effective enforcement of the intended
lien
position) reasonably necessary for the related Servicer to perform its
obligations under this Agreement. Servicing Advances also include any reasonable
“out-of-pocket” cost and expenses (including legal fees) incurred by the related
Servicer in connection with executing and recording instruments of satisfaction,
deeds of reconveyance or Assignments to the extent not recovered from the
Mortgagor or otherwise payable under this Agreement. No Servicer shall be
required to make any Nonrecoverable Servicing Advances.
53
“Servicing
Advance Schedule”: With respect to any Servicing Advances incurred prior to the
Cut-off Date, the schedule or schedules provided by (a) a Servicer with respect
to any Mortgage Loans that were transferred to such Servicer prior to the
Cut-off Date and/or (b) the Depositor with respect to any Mortgage Loans that
were transferred to a Servicer after the Cut-off Date, as applicable, to the
Master Servicer and, if such schedule is provided by the Depositor, to such
Servicer, on the date on which such Servicer seeks reimbursement for a Servicing
Advance made by such Servicer, which schedule or schedules shall contain the
information set forth on Schedule 6.
“Servicing
Agreement”: The Amended and Restated Servicing Agreement dated as of
January 2, 2007, by and between the Sponsor and GMACM, as modified by the
Assignment Agreement.
“Servicing
Criteria”: Means the criteria set forth in paragraph (d) of Item 1122 of
Regulation AB, as such may be amended from time to time.
“Servicing
Fee”: With respect to each Mortgage Loan and for any calendar month, an amount
equal to one-twelfth of the product of the Servicing Fee Rate multiplied by
the
Scheduled Principal Balance of the Mortgage Loans as of the Due Date in the
preceding calendar month. The Servicing Fee is payable solely from collections
of interest on the Mortgage Loans, except as otherwise provided in Section
3.09
of this Agreement.
“Servicing
Fee Rate”: 0.25% per annum.
“Servicing
Function Participant”: Means any Sub-Servicer, Subcontractor or any other
Person, other than each Servicer, the Master Servicer, each Custodian, the
Trustee and the Securities Administrator, that is determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, without regard to any threshold referenced therein.
“Servicing
Officer”: Any officer of the related Servicer or the Master Servicer involved
in, or responsible for, the administration and servicing of the Mortgage Loans,
whose name and specimen signature appear on a list of Servicing Officers
furnished by the related Servicer or the Master Servicer to the Trustee, the
Master Servicer (in the case of a Servicer), the Securities Administrator and
the Depositor on the Closing Date, as such list may from time to time be
amended.
“Servicing
Transfer Date”: With respect to (i) 39.09% of the GMACM Mortgage Loans,
September 1, 2007, and (ii) the remaining GMACM Mortgage Loans, the date on
which servicing of such Mortgage Loans may be transferred by the
Sponsor.
“Single
Certificate”: With respect to any Class of Certificates (other than the Residual
Certificates), a hypothetical Certificate of such Class evidencing a Percentage
Interest for such Class corresponding to an initial Certificate Principal
Balance of $1,000. With respect to the Residual Certificates, a hypothetical
Certificate of such Class evidencing a 100% Percentage Interest in such Class.
54
“Special
Hazard Coverage”: As of the Cut-off Date, $9,218,581.39. On each Anniversary,
the Special Hazard Coverage will be reduced to an amount equal to the lesser
of:
| (i) |
the
greatest of:
|
| (1) |
the
aggregate principal balance of the Mortgage Loans located in the
California zip code containing the largest aggregate principal balance
of
the Mortgage Loans;
|
| (2) |
1.00%
of the aggregate Principal Balance of the Mortgage Loans;
and
|
| (3) |
twice
the Principal Balance of the largest Mortgage Loan, calculated as
of the
Due Date in the immediately preceding month (after giving effect
to all
scheduled payments whether or not received);
and
|
|
(ii)
|
the
Special Hazard Coverage as of the Cut-off Date as reduced by the
Special
Hazard Losses allocated to the Certificates since the Cut-off
Date.
|
“Special
Hazard Loss”: The occurrence of any direct physical loss or damage to a
Mortgaged Property relating to a Liquidated Loan, as reported by the related
Servicer, not covered by a standard hazard maintenance policy with extended
coverage which is caused by or results from any cause except: (i) fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, vandalism, aircraft, vehicles, smoke, sprinkler leakage, except
to
the extent of that portion of the loss which was uninsured because of the
application of a co-insurance clause of any insurance policy covering these
perils; (ii) normal wear and tear, gradual deterioration, inherent vice or
inadequate maintenance of all or part thereof; (iii) errors in design, faulty
workmanship or materials, unless the collapse of the property or a part thereof
ensues and then only for the ensuing loss; (iv) nuclear reaction or nuclear
radiation or radioactive contamination, all whether controlled or uncontrolled
and whether such loss be direct or indirect, proximate or remote or be in whole
or in part caused by, contributed to or aggravated by a peril covered by this
definition of Special Hazard Loss; (v) hostile or warlike action in time of
peace or war, including action in hindering, combating or defending against
an
actual, impending or expected attack (a) by any government or sovereign power
(dejure or defacto), or by an authority maintaining or using military, naval
or
air forces, (b) by military, naval or air forces, or (c) by an agent of any
such
government, power, authority or forces; (vi) any weapon of war employing atomic
fission or radioactive force whether in time of peace or war; (vii)
insurrection, rebellion, revolution, civil war, usurped power or action taken
by
governmental authority in hindering, combating or defending against such
occurrence; or (viii) seizure or destruction under quarantine or customs
regulations, or confiscation by order of any government or public
authority.
“Sponsor”:
DB Structured Products, Inc. or its successor in interest, in its capacity
as
seller under the Mortgage Loan Purchase Agreement.
55
“Startup
Day”: With respect to each Trust REMIC, the day designated as such pursuant to
Section 11.01(b) hereof.
“Subcontractor”:
Means any vendor, subcontractor or other Person that is not responsible for
the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB (without regard to any threshold
percentage specified therein) with respect to Mortgage Loans under the direction
or authority of any Servicer (or a Sub-Servicer of any Servicer), the Master
Servicer, the Trustee, the Custodian or the Securities
Administrator.
“Subordinate
Amount”: As of any Date of Determination, the excess of the aggregate principal
balance of the Mortgage Loans over the aggregate Certificate Principal Balance
of the Senior Certificates.
“Subordinate
Certificate”: Any Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 or Class
B-6 Certificate.
“Subordinate
Interest Distribution Amount”: For any Distribution Date, an amount equal to the
Accrued Certificate Interest for each Class of Subordinate Certificates for
such
Distribution Date.
“Subordinate
Liquidation Amount”: For a Distribution Date, the excess, if any, of (i) the
aggregate Liquidation Principal for all Mortgage Loans which became Liquidated
Loans during the related Prepayment Period, over (ii) the Senior Liquidation
Amount for such Distribution Date.
“Subordinate
Pass-Through Rate”: With respect any Distribution Date and the Subordinate
Certificates, an annual rate equal to the weighted average Net Mortgage Rate
(weighted based on the principal balance of the Mortgage Loans as of the last
day of the immediately preceding Due Period (or as of the Cut-off Date with
respect to the first Distribution Date), after giving effect to principal
prepayments received during the related Prepayment Period). For
federal income tax purposes, for any Distribution Date with respect to the
REMIC
III Regular Interests the ownership which is represented by the Subordinate
Certificates, the REMIC II Remittance Rate for the Corresponding REMIC II
Regular Interest for such Distribution Date.
“Subordinate
Percentage”: For any Distribution Date, 100% minus the Senior Percentage for
such Distribution Date. As of the Closing Date, the Subordinate Percentage
will
be 5.85%.
“Subordinate
Prepayment Percentage”: For any Distribution Date, 100% minus the Senior
Prepayment Percentage for such Distribution Date. As of the Closing Date, the
Subordinate Prepayment Percentage will be 0.00%.
“Subordinate
Principal Distribution Amount”: With respect to any Distribution Date, an amount
equal to the sum of the following for that Distribution Date:
|
(i)
|
the
Subordinate Percentage of the Principal Distribution
Amount;
|
56
|
(ii)
|
the
Subordinate Principal Prepayment Amount;
and
|
|
(iii)
|
the
Subordinate Liquidation Amount.
|
“Subordinate
Principal Prepayment Amount”: For any Distribution Date, the Subordinate
Prepayment Percentage of the Principal Prepayment Amount for such Distribution
Date.
“Subordination
Level”: On any specified date and any Class of Subordinate Certificates, the
percentage obtained by dividing: (1) the sum of the aggregate Certificate
Principal Balances of all Subordinate Certificates which are subordinate in
right of payment to such Class as of such date, before giving effect to
distributions of principal or allocations of Realized Losses on the Mortgage
Loans on such date; by (2) the sum of the aggregate Certificate Principal
Balances of all Classes of Certificates as of such date, before giving effect
to
distributions of principal or allocations of Realized Losses on the Mortgage
Loans on such date.
“Subsequent
Recoveries”: As of any Distribution Date, amounts received during the related
Prepayment Period by the related Servicer specifically related to a defaulted
Mortgage Loan or disposition of an REO Property prior to the related Prepayment
Period that resulted in a Realized Loss, after the liquidation or disposition
of
such defaulted Mortgage Loan, net of any amounts reimbursable to such Servicer
obtaining such recovery.
“Sub-Servicer”:
Means any Person that services Mortgage Loans on behalf of any Servicer and
is
responsible for the performance (whether directly or through sub-servicers
or
Subcontractors) of a substantial portion of the material servicing functions
required to be performed under this Agreement or any related Sub-Servicing
Agreement that is identified in Item 1122(d) of Regulation AB.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer
relating to servicing and administration of certain Mortgage Loans as provided
in Section 3.02 of this Agreement or the Servicing Agreement, as
applicable.
“Substitution
Shortfall Amount”: As defined in Section 2.03 of this
Agreement.
“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 Class A Swap Agreement, the Class IO Interest and the right to receive
payments in respect of the Class IO Distribution Amount. For the avoidance
of
doubt, the Supplemental Interest Trust does not constitute a part of the Trust
Fund.
“Supplemental
Interest Trust Trustee”: HSBC Bank USA, National Association a national banking
association, or its successor in interest, or any successor supplemental
interest trust trustee appointed as provided herein or in the Class A Swap
Agreement provided.
“Swap
Collateral Account”: As defined in Section 5.09 hereof.
“Swap
LIBOR”: LIBOR as determined pursuant to the Class A Swap Agreement.
57
“Swap
Notional Amount”: For each Distribution Date, an amount equal to the lesser of
(i) the Certificate Principal Balance of the Class A-1 Certificate immediately
preceding such Distribution Date and (ii) the amount for such Distribution
Date
as set forth below:
|
Distribution
Date
|
Swap
Notional Amount ($)
|
||
|
September
2007
|
821,837,000.00
|
||
|
October
2007
|
|
|
819,974,597.30
|
|
November
2007
|
|
|
817,669,335.30
|
|
December
2007
|
|
|
814,922,058.02
|
|
January
2008
|
|
|
811,734,283.17
|
|
February
2008
|
|
|
808,108,205.05
|
|
March
2008
|
|
|
804,046,695.97
|
|
April
2008
|
|
|
799,553,305.84
|
|
May
2008
|
|
|
794,632,260.19
|
|
June
2008
|
|
|
789,288,456.29
|
|
July
2008
|
|
|
783,527,457.75
|
|
August
2008
|
|
|
777,355,487.13
|
|
September
2008
|
|
|
770,779,417.08
|
|
October
2008
|
|
|
763,806,759.47
|
|
November
2008
|
|
|
756,445,653.04
|
|
December
2008
|
|
|
748,704,849.17
|
|
January
2009
|
|
|
740,593,696.10
|
|
February
2009
|
|
|
732,122,121.39
|
|
March
2009
|
|
|
723,300,612.90
|
|
April
2009
|
|
|
714,140,198.11
|
|
May
2009
|
|
|
704,652,421.95
|
|
June
2009
|
|
|
694,849,323.22
|
|
July
2009
|
|
|
684,743,409.57
|
|
August
2009
|
|
|
674,347,631.20
|
|
September
2009
|
|
|
663,675,353.23
|
|
October
2009
|
|
|
652,740,327.03
|
|
November
2009
|
|
|
641,556,660.33
|
|
December
2009
|
|
|
630,138,786.41
|
|
January
2010
|
|
|
618,511,897.58
|
|
February
2010
|
|
|
607,080,726.13
|
|
March
2010
|
|
|
595,843,535.41
|
|
April
2010
|
|
|
584,797,084.56
|
|
May
2010
|
|
|
573,938,186.61
|
|
June
2010
|
|
|
563,263,707.62
|
|
July
2010
|
|
|
552,770,565.73
|
|
August
2010
|
|
|
542,455,730.38
|
|
September
2010
|
|
|
532,316,221.40
|
|
October
2010
|
|
|
522,349,108.20
|
|
November
2010
|
|
|
512,551,508.97
|
|
December
2010
|
|
|
502,920,589.82
|
|
January
2011
|
|
|
493,453,564.03
|
58
|
Distribution
Date
|
Swap
Notional Amount ($)
|
||
|
February
2011
|
|
|
484,147,691.28
|
|
March
2011
|
|
|
475,000,276.82
|
|
April
2011
|
|
|
466,008,670.77
|
|
May
2011
|
|
|
457,170,267.38
|
|
June
2011
|
|
|
448,482,504.24
|
|
July
2011
|
|
|
439,942,861.65
|
|
August
2011
|
|
|
431,548,861.82
|
|
September
2011
|
|
|
423,298,068.25
|
|
October
2011
|
|
|
415,188,085.02
|
|
November
2011
|
|
|
407,216,556.09
|
|
December
2011
|
|
|
399,381,164.69
|
|
January
2012
|
|
|
391,679,632.63
|
|
February
2012
|
|
|
384,109,719.69
|
|
March
2012
|
|
|
376,669,222.96
|
|
April
2012
|
|
|
369,355,976.25
|
|
May
2012
|
|
|
362,167,849.46
|
|
June
2012
|
|
|
355,102,748.00
|
|
July
2012
|
|
|
348,158,612.20
|
|
August
2012
|
|
|
341,333,416.71
|
|
September
2012
|
|
|
334,625,169.96
|
|
October
2012
|
|
|
328,271,496.15
|
|
November
2012
|
|
|
322,029,260.62
|
|
December
2012
|
|
|
315,896,575.35
|
|
January
2013
|
|
|
309,871,583.88
|
|
February
2013
|
|
|
303,952,460.74
|
|
March
2013
|
|
|
298,137,411.00
|
|
April
2013
|
|
|
292,424,669.71
|
|
May
2013
|
|
|
286,812,501.44
|
|
June
2013
|
|
|
281,299,199.73
|
|
July
2013
|
|
|
275,883,086.70
|
|
August
2013
|
|
|
270,562,512.49
|
|
September
2013
|
|
|
265,335,854.84
|
|
October
2013
|
|
|
260,275,919.07
|
|
November
2013
|
|
|
255,305,732.87
|
|
December
2013
|
|
|
250,423,762.84
|
|
January
2014
|
|
|
245,628,501.34
|
|
February
2014
|
|
|
240,918,466.00
|
|
March
2014
|
|
|
236,292,199.35
|
|
April
2014
|
|
|
231,748,268.40
|
|
May
2014
|
|
|
227,285,264.22
|
|
June
2014
|
|
|
222,901,801.54
|
|
July
2014
|
|
|
218,596,518.37
|
|
August
2014
|
|
|
214,368,075.60
|
|
September
2014
|
|
|
210,215,156.62
|
|
October
2014
|
|
|
206,272,253.47
|
59
|
Distribution
Date
|
Swap
Notional Amount ($)
|
||
|
November
2014
|
|
|
202,399,786.86
|
|
December
2014
|
|
|
198,596,538.13
|
|
January
2015
|
|
|
194,861,309.33
|
|
February
2015
|
|
|
191,192,922.79
|
|
March
2015
|
|
|
187,590,220.85
|
|
April
2015
|
|
|
184,052,065.50
|
|
May
2015
|
|
|
180,577,338.04
|
|
June
2015
|
|
|
177,164,938.76
|
|
July
2015
|
|
|
173,813,786.64
|
|
August
2015
|
|
|
170,522,819.01
|
|
September
2015
|
|
|
167,290,991.26
|
|
October
2015
|
|
|
164,236,247.76
|
|
November
2015
|
|
|
161,235,599.92
|
|
December
2015
|
|
|
158,288,110.23
|
“Swap
Provider”: The swap provider under the Class A Swap Agreement. Initially, the
Swap Provider shall be Deutsche Bank AG, New York Branch.
“Swap
Provider Trigger Event”: A Swap Provider Trigger Event shall have occurred if
any of the following has occurred: (i) an Event of Default under the Class
A
Swap Agreement with respect to which the Swap Provider is a Defaulting Party
(as
defined the Class A Swap Agreement), (ii) a Termination Event under the Class
A
Swap Agreement with respect to which the Swap Provider is the sole Affected
Party (as defined in the Class A Swap Agreement) or (iii) an Additional
Termination Event under the Class A Swap Agreement with respect to which the
Swap Provider is the sole Affected Party.
“Swap
Termination Payment”: Upon the designation of an “Early Termination Date” as
defined in the Class A Swap Agreement, the payment to be made by the Securities
Administrator on behalf of the Supplemental Interest Trust Trustee from the
Supplemental Interest Trust to the Swap Provider, or by the Swap Provider to
the
Supplemental Interest Trust, as applicable, pursuant to the terms of the Class
A
Swap Agreement.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on
behalf of the Trust REMICs under the REMIC Provisions, together with any and
all
other information reports or returns that may be required to be furnished to
the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
“Termination
Price”: As defined in Section 10.01.
“Transfer”:
Any direct or indirect transfer, sale, pledge, hypothecation, or other form
of
assignment of any Ownership Interest in a Certificate.
60
“Transferee”:
Any Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”:
Any Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Transferred
GMACM Mortgage Loan”: Any GMACM Mortgage Loan with respect to which servicing
has transferred to ▇▇▇▇▇ Fargo as of the related Servicing Transfer
Date.
“Trust”:
MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2, the trust
created hereunder.
“Trust
Fund”: Collectively, all of the assets of REMIC I, REMIC II and REMIC III and
any amounts on deposit therein and any proceeds thereof. For avoidance of doubt,
the Trust Fund does not include the Supplemental Interest Trust.
“Trust
REMIC”: REMIC I, REMIC II or REMIC III.
“Trustee”:
HSBC Bank USA, National Association a national banking association, or its
successor in interest, or any successor trustee appointed as herein
provided.
“Uncertificated
Balance”: The amount of the REMIC Regular Interests outstanding as of any date
of determination. As of the Closing Date, the Uncertificated Balance of each
REMIC Regular Interest shall equal the amount set forth in the Preliminary
Statement hereto as its initial uncertificated balance. On each Distribution
Date, the Uncertificated Balance of the REMIC Regular Interest shall be reduced
by all actual and deemed distributions of principal made on such REMIC Regular
Interest on such Distribution Date pursuant to Section 5.01 of this
Agreement and, if and to the extent necessary and appropriate, shall be further
reduced on such Distribution Date by Realized Losses as provided in
Section 5.04 of this Agreement. The Uncertificated Balance of each REMIC
Regular Interest shall never be less than zero.
“Uncertificated
Interest”: With respect to any REMIC Regular Interest for any Distribution Date,
one month’s interest at the related REMIC Remittance Rate applicable to such
REMIC Regular Interest for such Distribution Date, accrued on the Uncertificated
Balance thereof immediately prior to such Distribution Date. Uncertificated
Interest in respect of the REMIC Regular Interests shall accrue on the basis
of
a 360-day year consisting of twelve 30-day months. Uncertificated Interest
with
respect to each Distribution Date, as to any REMIC Regular Interest, shall
be
reduced by an amount equal to the sum of (a) the aggregate Prepayment Interest
Shortfall, if any, for such Distribution Date to the extent not covered by
payments pursuant to Section 3.22 or Section 4.19 of this Agreement or
pursuant to corresponding sections of the Servicing Agreement and (b) the
aggregate amount of any Relief Act Interest Shortfall, if any allocated, in
each
case, to such REMIC Regular Interest or REMIC Regular Interest pursuant to
Section 1.02 of this Agreement. In addition, Uncertificated Interest with
respect to each Distribution Date, as to any REMIC Regular Interest, shall
be
reduced by Realized Losses, if any, allocated to such REMIC Regular Interest
pursuant to Section 1.02 and Section 5.04 of this
Agreement.
61
“Uncertificated
Notional Amount”: With respect to REMIC II Regular Interest IO and each
Distribution Date listed below, the aggregate Uncertificated Balance of the
REMIC I Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
|
1
|
I-1-A
through I-100-A
|
|
|
2
|
I-2-A
through I-100-A
|
|
|
3
|
I-3-A
through I-100-A
|
|
|
4
|
I-4-A
through I-100-A
|
|
|
5
|
I-5-A
through I-100-A
|
|
|
6
|
I-6-A
through I-100-A
|
|
|
7
|
I-7-A
through I-100-A
|
|
|
8
|
I-8-A
through I-100-A
|
|
|
9
|
I-9-A
through I-100-A
|
|
|
10
|
I-10-A
through I-100-A
|
|
|
11
|
I-11-A
through I-100-A
|
|
|
12
|
I-12-A
through I-100-A
|
|
|
13
|
I-13-A
through I-100-A
|
|
|
14
|
I-14-A
through I-100-A
|
|
|
15
|
I-15-A
through I-100-A
|
|
|
16
|
I-16-A
through I-100-A
|
|
|
17
|
I-17-A
through I-100-A
|
|
|
18
|
I-18-A
through I-100-A
|
|
|
19
|
I-19-A
through I-100-A
|
|
|
20
|
I-20-A
through I-100-A
|
|
|
21
|
I-21-A
through I-100-A
|
|
|
22
|
I-22-A
through I-100-A
|
|
|
23
|
I-23-A
through I-100-A
|
|
|
24
|
I-24-A
through I-100-A
|
|
|
25
|
I-25-A
through I-100-A
|
|
|
26
|
I-26-A
through I-100-A
|
|
|
27
|
I-27-A
through I-100-A
|
|
|
28
|
I-28-A
through I-100-A
|
|
|
29
|
I-29-A
through I-100-A
|
|
|
30
|
I-30-A
through I-100-A
|
|
|
31
|
I-31-A
through I-100-A
|
|
|
32
|
I-32-A
through I-100-A
|
|
|
33
|
I-33-A
through I-100-A
|
|
|
34
|
I-34-A
through I-100-A
|
|
|
35
|
I-35-A
through I-100-A
|
|
|
36
|
I-36-A
through I-100-A
|
|
|
37
|
I-37-A
through I-100-A
|
|
|
38
|
I-38-A
through I-100-A
|
|
|
39
|
I-39-A
through I-100-A
|
|
|
40
|
I-40-A
through I-100-A
|
|
|
41
|
I-41-A
through I-100-A
|
|
|
42
|
I-42-A
through I-100-A
|
|
|
43
|
I-43-A
through I-100-A
|
|
|
44
|
I-44-A
through I-100-A
|
|
|
45
|
I-45-A
through I-100-A
|
|
|
46
|
I-46-A
through I-100-A
|
|
|
47
|
I-47-A
through I-100-A
|
|
|
48
|
I-48-A
through I-100-A
|
|
|
49
|
I-49-A
through I-100-A
|
|
|
50
|
I-50-A
through I-100-A
|
|
|
51
|
I-51-A
through I-100-A
|
|
|
52
|
I-52-A
through I-100-A
|
|
|
53
|
I-53-A
through I-100-A
|
|
|
54
|
I-54-A
through I-100-A
|
|
|
55
|
I-55-A
through I-100-A
|
62
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
56
|
I-56-A
through I-100-A
|
|
|
57
|
I-57-A
through I-100-A
|
|
|
58
|
I-58-A
through I-100-A
|
|
|
59
|
I-59-A
through I-100-A
|
|
|
60
|
I-60-A
through I-100-A
|
|
|
61
|
I-61-A
through I-100-A
|
|
|
62
|
I-62-A
through I-100-A
|
|
|
63
|
I-63-A
through I-100-A
|
|
|
64
|
I-64-A
through I-100-A
|
|
|
65
|
I-65-A
through I-100-A
|
|
|
66
|
I-66-A
through I-100-A
|
|
|
67
|
I-67-A
through I-100-A
|
|
|
68
|
I-68-A
through I-100-A
|
|
|
69
|
I-69-A
through I-100-A
|
|
|
70
|
I-70-A
through I-100-A
|
|
|
71
|
I-71-A
through I-100-A
|
|
|
72
|
I-72-A
through I-100-A
|
|
|
73
|
I-73-A
through I-100-A
|
|
|
74
|
I-74-A
through I-100-A
|
|
|
75
|
I-75-A
through I-100-A
|
|
|
76
|
I-76-A
through I-100-A
|
|
|
77
|
I-77-A
through I-100-A
|
|
|
78
|
I-78-A
through I-100-A
|
|
|
79
|
I-79-A
through I-100-A
|
|
|
80
|
I-80-A
through I-100-A
|
|
|
81
|
I-81-A
through I-100-A
|
|
|
82
|
I-82-A
through I-100-A
|
|
|
83
|
I-83-A
through I-100-A
|
|
|
84
|
I-84-A
through I-100-A
|
|
|
85
|
I-85-A
through I-100-A
|
|
|
86
|
I-86-A
through I-100-A
|
|
|
87
|
I-87-A
through I-100-A
|
|
|
88
|
I-88-A
through I-100-A
|
|
|
89
|
I-89-A
through I-100-A
|
|
|
90
|
I-90-A
through I-100-A
|
|
|
91
|
I-91-A
through I-100-A
|
|
|
92
|
I-92-A
through I-100-A
|
|
|
93
|
I-93-A
through I-100-A
|
|
|
94
|
I-94-A
through I-100-A
|
|
|
95
|
I-95-A
through I-100-A
|
|
|
96
|
I-96-A
through I-100-A
|
|
|
97
|
I-97-A
through I-100-A
|
|
|
98
|
I-98-A
through I-100-A
|
|
|
99
|
I-99-A
through I-100-A
|
|
|
100
|
I-100-A
|
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC II Regular Interest
IO.
“Underwriter”:
Deutsche Bank Securities Inc.
“Uninsured
Cause”: Any cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the hazard insurance
policies required to be maintained pursuant to Section 3.11 of this
Agreement.
63
“United
States Person”: A citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of,
the
United States or any political subdivision thereof (except, in the case of
a
partnership, to the extent provided in regulations) provided that, for purposes
solely of the restrictions on the transfer of any Class R Certificate, no
partnership or other entity treated as a partnership for United States federal
income tax purposes shall be treated as a United States Person unless all
persons that own an interest in such partnership either directly or through
any
entity that is not a corporation for United States federal income tax purposes
are required to be United States Persons, or an estate whose income is subject
to United States federal income tax regardless of its source, or a trust if
a
court within the United States is able to exercise primary supervision over
the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust. To the extent
prescribed in regulations by the Secretary of the Treasury, a trust which was
in
existence on August 20, 1996 (other than a trust treated as owned by the grantor
under subpart E of part I of subchapter J of chapter I of the Code), and which
was treated as a United States person on August 20, 1996 may elect to continue
to be treated as a United States person notwithstanding the previous sentence.
The term “United States” shall have the meaning set forth in Section 7701
of the Code.
“Value”:
With respect to any Mortgaged Property, the lesser of (i) the lesser of (a)
the
value thereof as determined by an appraisal made for the related originator
of
the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and
(b)
the value thereof as determined by a review appraisal conducted by the related
originator of the Mortgage Loan in accordance with the related originator’s
underwriting guidelines, and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, (A) in the case of a Refinanced Mortgage Loan, such value
of
the Mortgaged Property is based solely upon the lesser of (1) the value
determined by an appraisal made for the related originator of the Mortgage
Loan
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by an appraiser who met the minimum requirements of ▇▇▇▇▇▇ Mae
and
▇▇▇▇▇▇▇ Mac and (2) the value thereof as determined by a review appraisal
conducted by the related originator of the Mortgage Loan in accordance with
the
related originator’s underwriting guidelines, and (B) in the case of a Mortgage
Loan originated in connection with a “lease-option purchase,” such value of the
Mortgaged Property is based on the lower of the value determined by an appraisal
made for the originator of such Mortgage Loan at the time of origination or
the
sale price of such Mortgaged Property if the “lease option purchase price” was
set less than twelve (12) months prior to origination, and is based on the
value
determined by an appraisal made for the related originator of such Mortgage
Loan
at the time of origination if the “lease option purchase price” was set twelve
(12) months or more prior to origination.
“Verification
Report”: As defined in Section 4.19.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any such Certificate. With respect to any date of determination,
99% of all Voting Rights will be allocated among the holders of the Class A
Certificates and the Subordinate Certificates in proportion to the then
outstanding Certificate Principal Balances of their respective Certificates
and
1% of all Voting Rights will be allocated among the holders of the Class R
Certificates. The Voting Rights allocated to each Class of Certificate shall
be
allocated among Holders of each such Class in accordance with their respective
Percentage Interests as of the most recent Record Date. Notwithstanding anything
to the contrary in this Agreement, the portion of the Voting Rights allocable
to
any Class of Designated Certificates shall be exercisable solely by the related
Designated Entity (which Designated Entity shall not have any fiduciary duties
with respect to the person in whose name such Class of Designated Certificates
is registered).
64
“▇▇▇▇▇
Fargo”: ▇▇▇▇▇ Fargo Bank, National Association in its capacity as Servicer or
any successor thereto appointed hereunder in connection with the servicing
and
administration of the Mortgage Loans.
SECTION
1.02. Allocation
of Certain Interest Shortfalls.
On
each
Distribution Date, the amount of Accrued Certificate Interest for the Class
A
Certificates and the Subordinate Certificates for any Distribution Date will
be
reduced by (1) the aggregate amount of any Prepayment Interest Shortfalls (to
the extent not covered by payments by the Servicers pursuant to
Section 3.22 of this Agreement or pursuant to the Servicing Agreement or by
the Master Servicer pursuant to Section 4.19 of this Agreement), (2) any
Relief Act Interest Shortfalls incurred in respect of the Mortgage Loans for
any
Distribution Date and (3) the interest portion of Realized Losses incurred
in
the Mortgage Loans during the related Prepayment Period in the following order
first, to the Class B-6 Certificates, second, to the Class B-5 Certificates,
third, to the Class B-4 Certificates, fourth, to the Class B-3 Certificates,
fifth, to the Class B-2 Certificates, sixth, to the Class B-1 Certificates
and
seventh, to the Class A-1 Certificates and the Class A-2 Certificates, on a
pro
rata basis, based on the entitlement of each such Class.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
I
Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Servicer pursuant to Section 3.22 of this Agreement or the Master Servicer
pursuant to Section 4.19 of this Agreement or pursuant to the Servicing
Agreement) and any Relief Act Interest Shortfalls incurred in respect of the
Mortgage Loans shall be allocated first, to REMIC I Regular Interest IA and
to
the REMIC I Regular Interests ending with the designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Balances of each
such
REMIC I Regular Interest, and then, to REMIC I Regular Interests ending with
the
designation “A”, pro rata based on, and to the extent of, one month’s interest
at the then applicable respective REMIC I Remittance Rates on the respective
Uncertificated Balances of each such REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
II
Regular Interests for any Distribution Date, Prepayment Interest Shortfalls
(to
the extent not covered by payments by the Servicer pursuant to Section 3.22
of this Agreement or the Master Servicer pursuant to Section 4.19 of this
Agreement or pursuant to the Servicing Agreement) and any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans shall be allocated to
each
REMIC II Regular Interest in an amount equal to the amount that is allocated
to
the Corresponding Certificate for such Distribution Date.
65
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of the Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, on behalf of
the
Trust, without recourse, for the benefit of the Certificateholders, all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, the rights and obligations of the
Depositor under the Mortgage Loan Purchase Agreement, the Assignment Agreement,
the Servicing Agreement (including, without limitation the right to enforce
the
obligations of the other parties thereto thereunder), the right to any Net
Swap
Payment and any Swap Termination Payment made by the Swap Provider and all
other
assets included or to be included in REMIC I. Such assignment includes all
interest and principal received by the Depositor and the related Servicer on
or
with respect to the Mortgage Loans (other than payments of principal and
interest due on such Mortgage Loans on or before the Cut-off Date). A copy
of
the Mortgage Loan Purchase Agreement is attached hereto as Exhibit
F.
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with the Custodian pursuant to the Custodial Agreement the
documents with respect to each Mortgage Loan as described under Section 2
of the Custodial Agreement (the “Mortgage Loan Documents”). In connection with
such delivery and as further described in the Custodial Agreement, the Custodian
will be required to review such Mortgage Loan Documents and deliver to the
Trustee, the Depositor, the related Servicer and the Sponsor certifications
(in
the forms attached to the Custodial Agreement) with respect to such review
with
exceptions noted thereon. In addition, under the Custodial Agreement the
Depositor will be required to cure certain defects with respect to the Mortgage
Loan Documents for the related Mortgage Loans after the delivery thereof by
the
Depositor to the Custodian as more particularly set forth therein.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of the Mortgage Files, including, but not limited to certain
insurance policies and documents contemplated by Section 4.11 of this
Agreement, and preparation and delivery of the certifications shall be performed
by the Custodian pursuant to the terms and conditions of the Custodial
Agreement.
The
Depositor shall deliver or cause the originator to deliver to the related
Servicer copies of all trailing documents required to be included in the related
Mortgage File at the same time the originals or certified copies thereof are
delivered to the Trustee or Custodian, such documents including the mortgagee
policy of title insurance and any Mortgage Loan Documents upon return from
the
recording office. The Servicers shall not be responsible for any custodian
fees
or other costs incurred in obtaining such documents and the Depositor shall
cause the Servicers to be reimbursed for any such costs the Servicers may incur
in connection with performing their obligations under this Agreement or the
Servicing Agreement, as applicable.
66
In
connection with the assignment of any Mortgage Loan registered on the MERS
System, the Depositor will direct the Servicer to cause, within 30 Business
Days
after the Closing Date, the MERS System to indicate that such Mortgage Loans
have been assigned by the Depositor to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including in such
computer files (a) the code in the field which identifies the specific Trustee
and (b) the code in the field “Pool Field” which identifies the series of the
Certificates issued in connection with such Mortgage Loans. The Servicer agrees
that it will not, and the Master Servicer agrees that it will not and will
not
permit a Sub-Servicer to, alter the codes referenced in this paragraph with
respect to any Mortgage Loan during the term of this Agreement unless and until
such Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
The
Mortgage Loans permitted by the terms of this Agreement to be included in the
Trust are limited to (i) Mortgage Loans (which the Depositor acquired pursuant
to the Mortgage Loan Purchase Agreement, which contains, among other
representations and warranties, a representation and warranty of the Sponsor
that no Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey
Home Ownership Act effective November 27, 2003 or as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. ▇▇▇. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices
Act,
effective January 1, 2005 (Ind. Code ▇▇▇. Sections 24-9-1 through 24-9-9)
or
a
“high risk home loan” under the Illinois High Risk Home Loan Act, effective as
of January 1, 2004),
and
(ii) Qualified Substitute Mortgage Loans (which, by definition as set forth
herein and referred to in the Mortgage Loan Purchase Agreement, are required
to
conform to, among other representations and warranties, the representation
and
warranty of the Sponsor that no Qualified Substitute Mortgage Loan is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003 or as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, as defined in the Massachusetts Predatory Home Loan
Practices Act, effective November 7, 2004 (Mass. ▇▇▇. Laws Ch. 183C) or as
defined in the Indiana Home Loan Practices Act, effective January 1, 2005 (Ind.
Code ▇▇▇. Sections 24-9-1 through 24-9-9) or a “high risk home loan” under the
Illinois High Risk Home Loan Act, effective as of January 1, 2004). The
Depositor and the Trustee on behalf of the Trust understand and agree that
it is
not intended that any Mortgage Loan be included in the Trust that is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, as defined in the Massachusetts Predatory Home Loan
Practices Act, effective November 7, 2004 (Mass. ▇▇▇. Laws Ch. 183C) or as
defined in the Indiana Home Loan Practices Act, effective January 1, 2005 (Ind.
Code ▇▇▇. Sections 24-9-1 through 24-9-9) or a “high risk home loan” under the
Illinois High Risk Home Loan Act, effective as of January 1, 2004.
SECTION
2.02. Acceptance
of REMIC I by Trustee.
The
Trustee acknowledges receipt, subject to the provisions of Section 2.01
hereof and Section 2 of Custodial Agreement, of the Mortgage Loan Documents
and all other assets included in the definition of “REMIC I” under clauses (i),
(iii), (iv) and (v) (to the extent of amounts deposited into the Distribution
Account) and declares that it holds (or the Custodian on its behalf holds)
and
will hold such documents and the other documents delivered to it constituting
a
Mortgage Loan Document, and that it holds (or the Custodian on its behalf holds)
or will hold all such assets and such other assets included in the definition
of
“REMIC I” in trust for the exclusive use and benefit of all present and future
Certifacteholders.
67
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans.
(a) Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File or of a breach by the Sponsor of
any
representation, warranty or covenant under the Mortgage Loan Purchase Agreement
in respect of any Mortgage Loan that materially and adversely affects the value
of such Mortgage Loan or the interest therein of the Certificateholders,
the
Trustee shall promptly notify the Sponsor and the related Servicer of such
defect, missing document or breach and request that the Sponsor deliver such
missing document, cure such defect or breach within sixty (60) days from the
date the Sponsor was notified of such missing document, defect or breach, and
if
the Sponsor does not deliver such missing document or cure such defect or breach
in all material respects during such period, the Trustee shall enforce the
obligations of the Sponsor under the Mortgage Loan Purchase Agreement to
repurchase such Mortgage Loan from REMIC I at the Purchase Price within ninety
(90) days after the date on which the Sponsor was notified of such missing
document, defect or breach, if and to the extent that the Sponsor is obligated
to do so under the Mortgage Loan Purchase Agreement. The
Purchase Price for the repurchased Mortgage Loan shall be remitted to the
related Servicer for deposit in the Collection Account or the Custodial Account,
as applicable, and the Trustee, upon receipt of written certification from
the
related Servicer of such deposit, shall release or cause the Custodian (upon
receipt of a request for release in the form attached to the Custodial
Agreement) to release to the Sponsor the related Mortgage File and the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as the Sponsor shall furnish
to it and as shall be necessary to vest in the Sponsor any Mortgage Loan
released pursuant hereto, and the Trustee shall not have any further
responsibility with regard to such Mortgage File.
In lieu
of repurchasing any such Mortgage Loan as provided above, if so provided in
the
Mortgage Loan Purchase Agreement the Sponsor may cause such Mortgage Loan to
be
removed from REMIC I (in which case it shall become a Deleted Mortgage Loan)
and
substitute one or more Qualified Substitute Mortgage Loans in the manner and
subject to the limitations set forth in Section 2.03(b) of this Agreement.
It is understood and agreed that the obligation of the Sponsor to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a document
is
missing, a material defect in a constituent document exists or as to which
such
a breach has occurred and is continuing shall constitute the sole remedy
respecting such omission, defect or breach available to the Trustee and the
Certificateholders. Notwithstanding anything to the contrary contained herein,
any breach of a representation or warranty contained in clauses (viii) or
(xliii) of Section 6 of the Mortgage Loan Purchase Agreement shall be
automatically deemed to affect materially and adversely the interests of the
Certificateholders.
(b) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) of this Agreement must be effected prior
to the date which is two years after the Startup Day for REMIC I.
68
As
to any
Deleted Mortgage Loan for which the Sponsor substitutes a Qualified Substitute
Mortgage Loan or Loans, such substitution shall be effected by the Sponsor
delivering to the Trustee or the Custodian on behalf of the Trustee, for such
Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the Assignment to the Trustee, and such other documents and agreements, with all
necessary endorsements thereon, as are required by Section 2 of the
Custodial Agreement, as applicable, together with an Officers’ Certificate
providing that each such Qualified Substitute Mortgage Loan satisfies the
definition thereof and specifying the Substitution Shortfall Amount (as
described below), if any, in connection with such substitution. The Custodian
on
behalf of the Trustee shall acknowledge receipt of such Qualified Substitute
Mortgage Loan or Loans and, within ten (10) Business Days thereafter, review
such documents and deliver to the Depositor, the Trustee and the related
Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans,
an
initial certification pursuant to the Custodial Agreement, with any applicable
exceptions noted thereon. Within one year of the date of substitution, the
Custodian on behalf of the Trustee shall deliver to the Depositor, the Trustee
and the related Servicer a final certification pursuant to the Custodial
Agreement with respect to such Qualified Substitute Mortgage Loan or Loans,
with
any applicable exceptions noted thereon. Monthly Payments due with respect
to
Qualified Substitute Mortgage Loans in the month of substitution are not part
of
REMIC I and will be retained by the Sponsor. For the month of substitution,
distributions to Certificateholders will reflect the Monthly Payment due on
such
Deleted Mortgage Loan on or before the Due Date in the month of substitution,
and the Sponsor shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Mortgage Loan. The Depositor shall give
or
cause to be given written notice to the Certificateholders that such
substitution has taken place, shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the Trustee and the
related Servicer. Upon such substitution, such Qualified Substitute Mortgage
Loan or Loans shall constitute part of the Trust Fund and shall be subject
in
all respects to the terms of this Agreement and the Mortgage Loan Purchase
Agreement including all applicable representations and warranties thereof
included herein or in the Mortgage Loan Purchase Agreement.
For
any
month in which the Sponsor substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the related Servicer will
determine the amount (the “Substitution Shortfall Amount”), if any, by which the
aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the
aggregate of, as to each such Qualified Substitute Mortgage Loan, the Scheduled
Principal Balance thereof as of the date of substitution, together with one
month’s interest on such Scheduled Principal Balance at the applicable Net
Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances
(including Nonrecoverable P&I Advances and Nonrecoverable Servicing
Advances) related thereto. On the date of such substitution, the Sponsor will
deliver or cause to be delivered to the related Servicer for deposit in the
Collection Account or the Custodial Account an amount equal to the Substitution
Shortfall Amount, if any, and the Trustee or the Custodian on behalf of the
Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or
Loans, upon receipt of a request for release in the form attached to the
Custodial Agreement and certification by the related Servicer of such deposit,
shall release to the Sponsor the related Mortgage File or Files and the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as the Sponsor shall deliver
to it and as shall be necessary to vest therein any Deleted Mortgage Loan
released pursuant hereto.
69
In
addition, the Sponsor shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution will not cause (a)
any federal tax to be imposed on any Trust REMIC, including without limitation,
any federal tax imposed on “prohibited transactions” under
Section 860F(a)(1) of the Code or on “contributions after the startup date”
under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Upon
discovery by the Depositor, the Sponsor, a Servicer or the Trustee that any
Mortgage Loan does not constitute a “qualified mortgage” within the meaning of
Section 860G(a)(3) of the Code, the party discovering such fact shall
within two (2) Business Days give written notice thereof to the other parties.
In connection therewith, the Sponsor shall repurchase or substitute one or
more
Qualified Substitute Mortgage Loans for the affected Mortgage Loan within ninety
(90) days of the earlier of discovery or receipt of such notice with respect
to
such affected Mortgage Loan. Such repurchase or substitution shall be made
by
(i) the Sponsor if the affected Mortgage Loan’s status as a non-qualified
mortgage is or results from a breach of any representation, warranty or covenant
made by the Sponsor under the Mortgage Loan Purchase Agreement or (ii) the
Depositor, if the affected Mortgage Loan’s status as a non-qualified mortgage
does not result from a breach of a representation or warranty. Any such
repurchase or substitution shall be made in the same manner as set forth in
Section 2.03(a) of this Agreement. The Trustee shall reconvey to the
Sponsor the Mortgage Loan to be released pursuant hereto in the same manner,
and
on the same terms and conditions, as it would a Mortgage Loan repurchased for
breach of a representation or warranty.
(d) With
respect to a breach of the representations made pursuant to Section 5(xii)
of the Mortgage Loan Purchase Agreement that materially and adversely affects
the value of such Mortgage Loan or the interest therein of the
Certificateholders, the Sponsor shall be required to take the actions set forth
in this Section 2.03 of this Agreement.
(e) Within
ninety (90) days of the earlier of discovery by ▇▇▇▇▇ Fargo or receipt of notice
by ▇▇▇▇▇ Fargo of the breach of any representation, warranty or covenant of
▇▇▇▇▇ Fargo set forth in Section 2.05 of this Agreement which materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, ▇▇▇▇▇ Fargo shall cure such breach in all material respects.
(f) If
any
Mortgage Loan with an original term to maturity of forty (40) years remains
outstanding on the distribution date in July 2037, the Sponsor will purchase
each such Mortgage Loan from REMIC I at the Purchase Price on the following
Distribution Date in August 2037. The Purchase Price for each repurchased
Mortgage Loan shall be remitted to the related Servicer for deposit in the
Distribution Account, as applicable, and the Trustee, upon receipt of written
certification from the related Servicer of such deposit, shall release or cause
the Custodian (upon receipt of a request for release in the form attached to
the
Custodial Agreement) to release to the Sponsor the related Mortgage File and
the
Trustee shall execute and deliver such instruments of transfer or assignment,
in
each case without recourse, representation or warranty, as the Sponsor shall
furnish to it and as shall be necessary to vest in the Sponsor any Mortgage
Loan
released pursuant hereto, and the Trustee shall not have any further
responsibility with regard to such Mortgage File.
70
SECTION
2.04. Representations
and Warranties of the Master Servicer.
The
Master Servicer hereby represents, warrants and covenants to ▇▇▇▇▇ Fargo, the
Depositor and the Trustee, for the benefit of each of the Trustee and the
Certificateholders, that as of the Closing Date or as of such date specifically
provided herein:
(i) The
Master Servicer is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of the Master Servicer,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar
laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of the charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or any statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the Master Servicer to perform its obligations under this
Agreement or (y) the business, operations, financial condition, properties
or
assets of the Master Servicer taken as a whole;
(iv) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
71
(v) No
litigation is pending against the Master Servicer that would materially and
adversely affect the execution, delivery or enforceability of this Agreement
or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof;
(vi) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement;
(vii) 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 by it of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date; and
(viii) There
are
no affiliations, relationships or transactions relating to the Master Servicer
of a type that are described under Item 1119 of Regulation AB with the
Depositor, the Sponsor, GMACM, the Custodian, the Credit Risk Manager, the
Swap
Provider or the Trustee.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.04 shall survive the resignation or termination of
the parties hereto and the termination of this Agreement and shall inure to
the
benefit of the Trustee, the Depositor and the Certificateholders.
SECTION
2.05. Representations,
Warranties and Covenants of ▇▇▇▇▇ Fargo.
▇▇▇▇▇
Fargo hereby represents, warrants and covenants to the Master Servicer, the
Securities Administrator, the Depositor and the Trustee, for the benefit of
each
of such Persons and the Certificateholders that as of the Closing Date or as
of
such date specifically provided herein:
(i) ▇▇▇▇▇
Fargo is a national banking association duly organized and validly existing
under the laws of the United States of America and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by ▇▇▇▇▇ Fargo in any state in which a Mortgaged Property related
to a
Mortgage Loan is located or is otherwise not required under applicable law
to
effect such qualification and, in any event, is in compliance with the doing
business laws of any such State, to the extent necessary to ensure its ability
to enforce each Mortgage Loan and to service the Mortgage Loans in accordance
with the terms of this Agreement;
(ii) ▇▇▇▇▇
Fargo has the full power and authority to conduct its business as presently
conducted by it and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. ▇▇▇▇▇ Fargo has
duly authorized the execution, delivery and performance of this Agreement,
has
duly executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the other parties hereto, constitutes
a
legal, valid and binding obligation of ▇▇▇▇▇ Fargo, enforceable against it
in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization or similar laws administered by the
FDIC affecting the contract obligations of insured banks and affecting the
enforcement of creditors’ rights generally and by general principles of
equity;
72
(iii) The
execution and delivery of this Agreement by ▇▇▇▇▇ Fargo, the servicing of the
Mortgage Loans by ▇▇▇▇▇ Fargo hereunder, the consummation by ▇▇▇▇▇ Fargo of
any
other of the transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business of
▇▇▇▇▇
Fargo and will not (A) result in a breach of any term or provision of the
charter or by-laws of ▇▇▇▇▇ Fargo or (B) conflict with, result in a breach,
violation or acceleration of, or result in a default under, the terms of any
other material agreement or instrument to which ▇▇▇▇▇ Fargo is a party or by
which it may be bound, or any statute, order or regulation applicable to ▇▇▇▇▇
Fargo of any court, regulatory body, administrative agency or governmental
body
having jurisdiction over ▇▇▇▇▇ Fargo; and ▇▇▇▇▇ Fargo is not a party to, bound
by, or in breach or violation of any indenture or other agreement or instrument,
or subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects or, to ▇▇▇▇▇ Fargo’s knowledge,
would in the future materially and adversely affect, (x) the ability of ▇▇▇▇▇
Fargo to perform its obligations under this Agreement, (y) the business,
operations, financial condition, properties or assets of ▇▇▇▇▇ Fargo taken
as a
whole or (z) the legality, validity or enforceability of this
Agreement;
(iv) ▇▇▇▇▇
Fargo does not believe, nor does it have any reason or cause to believe, that
it
cannot perform each and every covenant made by it and contained in this
Agreement;
(v) No
litigation is pending against ▇▇▇▇▇ Fargo that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or the
ability of ▇▇▇▇▇ Fargo to service the Mortgage Loans or to perform any of its
other obligations hereunder in accordance with the terms hereof;
(vi) There
are
no actions or proceedings against, or investigations known to it of, ▇▇▇▇▇
Fargo
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the consummation of the
transactions contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by ▇▇▇▇▇ Fargo of its
obligations under, or the validity or enforceability of, this
Agreement;
(vii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by ▇▇▇▇▇ Fargo
of,
or compliance by ▇▇▇▇▇ Fargo with, this Agreement or the consummation by it
of
the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date; and
73
(viii) ▇▇▇▇▇
Fargo is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive the resignation or termination of
the parties hereto, the termination of this Agreement and the delivery of the
Mortgage Files to the related Custodian and shall inure to the benefit of the
Trustee, the Master Servicer, the Securities Administrator, the Depositor and
the Certificateholders. Upon discovery by any such Person or ▇▇▇▇▇ Fargo of
a
breach of any of the foregoing representations, warranties and covenants which
materially and adversely affects the value of any Mortgage Loan or the interests
therein of the Certificateholders, the party discovering such breach shall
give
prompt written notice (but in no event later than two (2) Business Days
following such discovery) to the Trustee. Subject to Section 8.01, unless
such breach shall not be susceptible of cure within ninety (90) days, the
obligation of ▇▇▇▇▇ Fargo set forth in Section 2.03(e) of this Agreement to
cure breaches shall constitute the sole remedy against ▇▇▇▇▇ Fargo available
to
the Certificateholders, the Depositor or the Trustee on behalf of the
Certificateholders respecting a breach of the representations, warranties and
covenants contained in this Section 2.05.
SECTION
2.06. Issuance
of the REMIC I Regular Interests and the Class R-I Interest.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to the Custodian on its behalf of the Mortgage Loan Documents, subject to the
provisions of Section 2.01 and Section 2.02 hereof and Section 2
of the Custodial Agreement, together with the assignment to it of all other
assets included in REMIC I, the receipt of which is hereby acknowledged. The
interests evidenced by the Class R-I Interest, together with the REMIC I Regular
Interests, constitute the entire beneficial ownership interest in REMIC I.
The
rights of the Holders of the Class R-I Interest and REMIC II (as holder of
the
REMIC I Regular Interests) to receive distributions from the proceeds of REMIC
I
in respect of the Class R-I Interest and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Interest and the REMIC I Regular Interests, shall be as set forth in this
Agreement.
SECTION
2.07. Conveyance
of the REMIC I Regular Interests; Acceptance of REMIC II and REMIC III by the
Trustee.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests for the benefit of REMIC II (as holder of the REMIC I Regular
Interests). The Trustee acknowledges receipt of the REMIC I Regular Interests
and declares that it holds and will hold the same in trust for the exclusive
use
and benefit of REMIC II (as holder of the REMIC I Regular Interests). The Class
R-II Interest and the REMIC II Regular Interests shall constitute the entire
beneficial ownership interest in REMIC II. The Trustee acknowledges receipt
of
the REMIC II Regular Interests and declares that it holds and will hold the
same
in trust for the exclusive use and benefit of REMIC III (as holder of the REMIC
II Regular Interests). The REMIC III Certificates and the Class IO Interest
shall constitute the entire beneficial ownership interest in REMIC III. The
rights of the Holders of the REMIC III Certificates and the Class IO Interest
to
receive distributions from the proceeds of REMIC III shall be as set forth
in
this Agreement.
74
The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and,
concurrently therewith and in exchange therefor, pursuant to the written request
of the Depositor executed by an officer of the Depositor, the Securities
Administrator has executed and authenticated and the Trustee has delivered
to or
upon the order of the Depositor, the Class R Certificates in authorized
denominations. The Class R Certificates evidence ownership in the Class R-I
Interest, the Class R-II Interest and the Class R-III Interest.
SECTION
2.08. [Reserved].
SECTION
2.09. Establishment
of the Trust.
The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust to be known,
for convenience, as “MortgageIT Securities Corp. Mortgage Loan Trust, Series
2007-2” and does hereby appoint HSBC Bank USA, National Association as Trustee
in accordance with the provisions of this Agreement.
SECTION
2.10. Purpose
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with the conservation of the Trust Fund and the making
of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
(or those ancillary thereto) while any Certificate is outstanding, and this
Section 2.10 may not be amended, without the consent of the
Certificateholders evidencing 51% or more of the aggregate voting rights of
the
Certificates.
75
SECTION
2.11. Representations
and Warranties of the Trustee.
The
Trustee hereby represents and warrants to the Sponsor and the Depositor, for
the
benefit of each of the Certificateholders, that as of the Closing
Date:
(a) There
are
no affiliations relating to the Trustee of a type that are described under
Item
1119(a) of Regulation AB; and
(b) There
are
no legal proceedings pending or contemplated, including legal proceedings
pending or contemplated by governmental authorities, against the Trustee that
could be material to the Certificateholders.
76
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS; ACCOUNTS
SECTION
3.01. The
Servicer to Act as Servicer.
From
and
after the Closing Date and to the related Servicing Transfer Dates, the GMACM
Mortgage Loans will be serviced and administered by GMACM pursuant to the terms
and provisions of the Servicing Agreement, and ▇▇▇▇▇ Fargo will not have any
responsibility to service or administer the GMACM Mortgage Loans or have any
other obligation or liability with respect to the GMACM Mortgage Loans during
that period. From and after the related Servicing Transfer Date, the Transferred
GMACM Mortgage Loans will be serviced and administered by ▇▇▇▇▇ Fargo pursuant
to this Agreement or by a Servicer appointed by the Depositor pursuant to this
Agreement or the Servicing Agreement. The Sponsor has the right to transfer
the
servicing of certain GMACM Mortgage Loans with respect to which the Sponsor
owns
the servicing rights to a successor servicer which is qualified to service
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The appointment of any successor
servicer requires the consent of the Master Servicer, which consent may not
be
unreasonably withheld, and confirmation from the Rating Agencies that the
transfer of servicing will not result in a qualification, withdrawal or
downgrade of the then-current ratings of any of the Certificates. Unless
otherwise specified, references in this Article III to the Servicer shall be
deemed to be references to ▇▇▇▇▇ Fargo and will apply to ▇▇▇▇▇ Fargo’s
obligations with respect to the Transferred GMACM Mortgage Loans to the extent
▇▇▇▇▇ Fargo is the Servicer thereof after the related Servicing Transfer
Date.
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
Fund and in the best interests of and for the benefit of the Certificateholders
(as determined by the Servicer in its reasonable judgment) in accordance with
the terms of this Agreement and the respective Mortgage Loans and all applicable
law and regulations and, to the extent consistent with such terms, in the same
manner in which it services and administers similar mortgage loans for its
own
portfolio, giving due consideration to customary and usual standards of practice
of prudent mortgage lenders and loan servicers administering similar mortgage
loans but without regard to:
(i) any
relationship that the Servicer or any of its Affiliates may have with the
related Mortgagor;
(ii) the
ownership of any Certificate by the Servicer or any of its
Affiliates;
(iii) the
Servicer’s obligation to make P&I Advances or Servicing Advances;
or
(iv) the
Servicer’s right to receive compensation for its services
hereunder.
Subject
only to the above-described servicing standards (the “Accepted Servicing
Practices”) and the terms of this Agreement and of the related Mortgage Loans,
the Servicer shall have full power and authority, to do or cause to be done
any
and all things in connection with such servicing and administration which it
may
deem necessary or desirable with the goal of maximizing proceeds of the Mortgage
Loan. Without limiting the generality of the foregoing, the Servicer in its
own
name is hereby authorized and empowered by the Trustee when the Servicer
believes it appropriate in its best judgment, to execute and deliver, on behalf
of the Trust Fund, the Certificateholders and the Trustee or any of them, and
upon written notice to the Trustee, any and all instruments of satisfaction
or
cancellation, or of partial or full release or discharge or subordination,
and
all other comparable instruments, with respect to the related Mortgage Loans
and
the related Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee, for the benefit of the Trust Fund and the Certificateholders.
The Servicer shall service and administer the related Mortgage Loans in
accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. The Servicer
shall also comply in the performance of this Agreement with all reasonable
rules
and requirements of each insurer under any standard hazard insurance policy.
Subject to Section 3.14, the Trustee shall execute, at the written request
of the Servicer, and furnish to the Servicer a power of attorney in the form
of
Exhibit D hereto and other documents necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder, and
furnished to the Trustee by the Servicer, and the Trustee shall not be liable
for the actions of the Servicer under such powers of attorney and shall be
indemnified by the Servicer for any cost, liability or expense incurred by
the
Trustee in connection with the Servicer’s use or misuse of any such power of
attorney.
77
The
Servicer is hereby authorized and empowered in its own name or in the name of
the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on
the MERS® System, or cause the removal from the registration of any Mortgage
Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment
and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses incurred in connection with
the
actions described in the preceding sentence or as a result of MERS discontinuing
or becoming unable to continue operations in connection with the MERS® System,
shall be reimbursable by the Trust Fund to the Servicer.
In
accordance with Accepted Servicing Practices, the Servicer shall make or cause
to be made Servicing Advances as necessary for the purpose of effecting the
payment of taxes and assessments on the Mortgaged Properties, which Servicing
Advances shall be reimbursable in the first instance from related collections
from the related Mortgagors pursuant to Section 3.07 of this Agreement, and
further as provided in Section 3.09 of this Agreement; provided, however,
the Servicer shall only make such Servicing Advance if the related Mortgagor
has
not made such payment and if the failure to make such Servicing Advance would
result in the loss of the related Mortgaged Property due to a tax sale or
foreclosure as result of a tax lien; provided, however, that the Servicer shall
be required to make such Servicing Advances only to the extent that such
Servicing Advances, in the good faith judgment of the Servicer, will be
recoverable by the Servicer out of Insurance Proceeds, Liquidation Proceeds,
or
otherwise out of the proceeds of the related Mortgage Loan. Any cost incurred
by
the Servicer in effecting the payment of taxes and assessments on a Mortgaged
Property shall not, for the purpose of calculating the Scheduled Principal
Balance of such Mortgage Loan or distributions to Certificateholders, be added
to the unpaid principal balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit. The parties to this Agreement
acknowledge that Servicing Advances shall be reimbursable pursuant to
Section 3.09 of this Agreement, and agree that no Servicing Advance shall
be rejected or disallowed by any party unless it has been shown that such
Servicing Advance was not made in accordance with
the
terms of this Agreement. Notwithstanding the foregoing, the parties understand
and agree that, with respect to any Mortgage Loan (1) the Master Servicer shall
not approve the reimbursement of any Servicing Advance made with respect to
such
Mortgage Loan prior to the Cut-off Date (each, a “Pre-Cut-off Date Advance”)
unless and until it has received a Servicing Advance Schedule listing the amount
of Pre-Cut-off Date Advances made in respect of such Mortgage Loan from (a)
the
Servicer with respect to any Mortgage Loans that were transferred to the
Servicer prior to the Cut-off Date and/or (b) the Depositor with respect to
any
Mortgage Loans that were transferred to the Servicer after the Cut-off Date,
as
applicable, (2) the aggregate Pre-Cut-off Date Advances reimbursable hereunder
with respect to such Mortgage Loan shall not exceed the amount of Pre-Cut-off
Date Advances for such Mortgage Loan shown on the Servicing Advance Schedule
delivered to the Master Servicer, (3) the Depositor shall be deemed to have
agreed with and approved the Pre-Cut-off Date Advances shown on any Servicing
Advance Schedule furnished to the Master Servicer, and (4) the Master Servicer
will have no liability to the Depositor, the Servicer or any other Person,
including any Certificateholder, for approving reimbursement of related
Pre-Cut-off Date Advances so long as the aggregate amount of such advances
reimbursed hereunder does not exceed of the amount of Pre-Cut-off Date Advances
for such Mortgage Loan shown on the Servicing Advance Schedule.
In no
event shall the Servicer be entitled to reimbursement for any Pre-Cut-off Date
Advance if the Servicer determines that such Pre-Cut-off Date Advance
constitutes a Nonrecoverable Servicing Advance.
78
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
advances with respect to a Mortgage Loan and shall not permit any modification
with respect to any related Mortgage Loan that would change the Mortgage Rate,
reduce or increase the principal balance (except for reductions resulting from
actual payments of principal) or change the final maturity date on such related
Mortgage Loan (unless, as provided in Section 3.06 of this Agreement, the
related Mortgagor is in default with respect to the related Mortgage Loan or
such default is, in the judgment of the Servicer, reasonably foreseeable) or
any
modification, waiver or amendment of any term of any related Mortgage Loan
that
would both (A) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or final, temporary or proposed Treasury
regulations promulgated thereunder) and (B) cause any Trust REMIC created
hereunder to fail to qualify as a REMIC under the Code or the imposition of
any
tax on “prohibited transactions” or “contributions after the startup date” under
the REMIC Provisions.
In
the
event that the Mortgage Loan Documents relating to a Mortgage Loan contain
provisions requiring the related Mortgagor to arbitrate disputes (at the option
of the Trustee, on behalf of the Trust), the Trustee hereby authorizes the
Servicer to waive the Trustee’s right or option to arbitrate disputes and to
send written notice of such waiver to the Mortgagor, although the Mortgagor
may
still require arbitration at its option.
79
To
the
extent that the Servicer has serviced the Mortgage Loans for a period of sixty
(60) days, the Servicer will fully furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations and any other applicable law,
accurate and complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company or their successors on a monthly basis.
SECTION
3.02. Sub-Servicing
Agreements Between the Servicer and Sub-Servicers.
(a) The
Servicer may arrange for the subservicing of any Mortgage Loan by a Sub-
Servicer pursuant to a Sub-Servicing Agreement; provided that such sub-servicing
arrangement and the terms of the related Sub-Servicing Agreement must provide
for the servicing of such Mortgage Loans in a manner consistent with the
servicing arrangements contemplated hereunder and the Servicer shall cause
any
Sub-Servicer to comply with the provisions of this Agreement (including, without
limitation, to provide the information required to be delivered under Sections
3.17, 3.18 and 3.19 hereof), to the same extent as if such Sub-Servicer were
the
Servicer. The Servicer shall be responsible for obtaining from each Sub-Servicer
and delivering to the Master Servicer any annual statement of compliance,
assessment of compliance, attestation report and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ related
certification as and when required to be delivered. Each Sub-Servicer shall
be
(i) authorized to transact business in the state or states where the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Sub-Servicer to perform its obligations
hereunder and under the Sub-Servicing Agreement and (ii) a ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
▇▇▇ approved mortgage servicer. Notwithstanding the provisions of any
Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer or a Sub-Servicer or reference
to actions taken through the Servicer or otherwise, the Servicer shall remain
obligated and liable to the Depositor, the Trustee and the Certificateholders
for the servicing and administration of the Mortgage Loans in accordance with
the provisions of this Agreement without diminution of such obligation or
liability by virtue of such Sub-Servicing Agreements or arrangements or by
virtue of indemnification from the Sub-Servicer and to the same extent and
under
the same terms and conditions as if the Servicer alone were servicing and
administering the Mortgage Loans. Every Sub-Servicing Agreement entered into
by
the Servicer shall contain a provision giving the successor servicer the option
to terminate such agreement in the event a successor servicer is appointed.
All
actions of each Sub-Servicer performed pursuant to the related Sub-Servicing
Agreement shall be performed as an agent of the Servicer with the same force
and
effect as if performed directly by the Servicer.
(b) Notwithstanding
the foregoing, the Servicer shall be entitled to outsource one or more separate
servicing functions to a Subcontractor that does not meet the eligibility
requirements for a Sub-Servicer, so long as such outsourcing does not constitute
the delegation of the Servicer’s obligation to perform all or substantially all
of the servicing of the related Mortgage Loans to such Subcontractor. The
Servicer shall promptly, upon request, provide to the Master Servicer, the
Trustee and the Depositor a written description (in form and substance
reasonably satisfactory to the Master Servicer, the Trustee and the Depositor)
of the role and function of each Subcontractor utilized by the Servicer,
specifying (i) the identity of each such Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, and (ii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (i)
of
this subsection; provided, however, that the Servicer shall not be required
to
provide the information in clauses (i) or (ii) of this subsection until such
time that the applicable assessment of compliance is due pursuant to
Section 3.18 of this Agreement. The use by the Servicer of any such
Subcontractor shall not release the Servicer from any of its obligations
hereunder and the Servicer shall remain responsible hereunder for all acts
and
omissions of such Subcontractor as fully as if such acts and omissions were
those of the Servicer, and the Servicer shall pay all fees and expenses of
the
Subcontractor from the Servicer’s own funds.
80
(c) As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer for the benefit of the Master Servicer, the Trustee and the Depositor
to comply with the provisions of Sections 3.18 and 3.19 of this Agreement to
the
same extent as if such Subcontractor were the Servicer. The Servicer shall
be
responsible for obtaining from each such Subcontractor and delivering to the
Master Servicer and any Depositor any assessment of compliance, attestation
report and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ related certification required to be delivered by
such
Subcontractor under Sections 3.18 and 3.19, in each case as and when required
to
be delivered.
(d) For
purposes of this Agreement, the Servicer shall be deemed to have received any
collections, recoveries or payments with respect to the Mortgage Loans that
are
received by a Sub-Servicer regardless of whether such payments are remitted
by
the Sub-Servicer to the Servicer.
SECTION
3.03. Successor
Sub-Servicers.
Any
Sub-Servicing Agreement shall provide that the Servicer shall be entitled to
terminate any Sub-Servicing Agreement and to either itself directly service
the
related Mortgage Loans or enter into a Sub-Servicing Agreement with a successor
Sub-Servicer which qualifies under Section 3.02. Any Sub-Servicing
Agreement shall include the provision that such agreement may be immediately
terminated as soon as is reasonably possible by any successor to the Servicer
without fee or, in the event a termination fee exists, such fee shall be payable
by the Servicer from its own funds without reimbursement therefor, in accordance
with the terms of this Agreement, in the event that the Servicer (or any
successor to the Servicer) shall, for any reason, no longer be the Servicer
of
the related Mortgage Loans (including termination due to the Servicer Event
of
Default). The Servicer shall be entitled to enter into an agreement with its
Sub-Servicer and Subcontractor for indemnification of the Servicer or
Subcontractor, as applicable, by such Sub-Servicer and nothing contained in
this
Agreement shall be deemed to limit or modify such indemnification.
SECTION
3.04. No
Contractual Relationship Between Sub-Servicer, Subcontractor, Trustee or the
Certificateholders.
Any
Sub-Servicing Agreement and any other transactions or services relating to
the
Mortgage Loans involving a Sub-Servicer or a Subcontractor, as applicable shall
be deemed to be between the Sub-Servicer and the Servicer or Subcontractor,
as
applicable alone and the Master Servicer, Trustee and the Certificateholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to any Sub-Servicer or
Subcontractor except as set forth in Section 3.05 of this
Agreement.
81
SECTION
3.05. Assumption
or Termination of Sub-Servicing Agreement by Successor Servicer.
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of the Servicer hereunder by a successor
servicer pursuant to Section 8.02, it is understood and agreed that the
Servicer’s rights and obligations under any Sub-Servicing Agreement then in
force between the Servicer and a Sub-Servicer shall be assumed simultaneously
by
such successor servicer without act or deed on the part of such successor
servicer; provided, however, that any successor servicer may terminate the
Sub-Servicer.
The
Servicer shall, upon the reasonable request of the Master Servicer, but at
its
own expense, deliver to the assuming party documents and records relating to
each Sub-Servicing Agreement and an accounting of amounts collected and held
by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the Sub-Servicing Agreements to the assuming party.
The
Servicing Fee payable to any such successor servicer shall be payable from
payments received on the Mortgage Loans in the amount and in the manner set
forth in this Agreement.
SECTION
3.06. Collection
of Certain Mortgage Loan Payments.
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the related Mortgage Loans, and shall, to the extent
such procedures shall be consistent with this Agreement and Accepted Servicing
Practices, follow such collection procedures as it would follow with respect
to
mortgage loans comparable to the Mortgage Loans and held for its own account.
Consistent with the foregoing, the Servicer may in its discretion (i) waive
any
late payment charge or, if applicable, penalty interest or (ii) extend the
due
dates for the Monthly Payments due on a Mortgage Note related to a Mortgage
Loan
for a period of not greater than 180 days; provided that any extension pursuant
to this clause shall not affect the amortization schedule of any Mortgage Loan
for purposes of any computation hereunder. Notwithstanding the foregoing, in
the
event that any Mortgage Loan is in default or, in the judgment of the Servicer,
such default is reasonably foreseeable, the Servicer, consistent with Accepted
Servicing Practices may waive, modify or vary any term of such Mortgage Loan
(including, but not limited to, modifications that change the Mortgage Rate,
forgive the payment of principal or interest or extend the final maturity date
of such Mortgage Loan), accept payment from the related Mortgagor of an amount
less than the Scheduled Principal Balance in final satisfaction of such Mortgage
Loan, or consent to the postponement of strict compliance with any such term
or
otherwise grant indulgence to any Mortgagor if in the Servicer’s determination
such waiver, modification, postponement or indulgence is not materially adverse
to the interests of the Certificateholders (taking into account any estimated
Realized Loss that might result absent such action). The Servicer shall not
be
required to institute or join in litigation with respect to collection of any
payment (whether under a Mortgage, Mortgage Note or otherwise or against any
public or governmental authority with respect to a taking or condemnation)
if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which such payment is required is prohibited by
applicable law.
82
SECTION
3.07. Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
To
the
extent the terms of a Mortgage provide for Escrow Payments, the Servicer shall
establish and maintain one or more accounts (the “Servicing Accounts”), into
which all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, fire, flood, and hazard
insurance premiums, and comparable items for the account of the Mortgagors
(“Escrow Payments”) shall be deposited and retained. Servicing Accounts shall be
Eligible Accounts. The Servicer shall deposit in the clearing account in which
it customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one (1) Business Day after the Servicer’s receipt thereof, all Escrow
Payments collected on account of the Mortgage Loans and shall thereafter deposit
such Escrow Payments in the Servicing Accounts, in no event later than the
second Business Day after the deposit of good funds into the clearing account,
and retain therein, all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting the timely payment of any such items as
required under the terms of this Agreement. Withdrawals of amounts from a
Servicing Account may be made by the Servicer only to (i) effect timely payment
of taxes, assessments, fire, flood, and hazard insurance premiums, and
comparable items; (ii) reimburse itself out of related collections for any
Servicing Advances made pursuant to Section 3.01 (with respect to taxes and
assessments) and Section 3.11 (with respect to fire, flood and hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) for application to restore or repair the related Mortgaged
Property in accordance with Section 3.11; (v) pay interest, if required and
as described below, to Mortgagors on balances in the Servicing Account; or,
only
to the extent not required to be paid to the related Mortgagors, to pay itself
interest on balances in the Servicing Account; or (vi) clear and terminate
the
Servicing Account at the termination of the Servicer’s obligations and
responsibilities in respect of the Mortgage Loans under this Agreement in
accordance with Article X. As part of its servicing duties, the Servicer shall
pay to the Mortgagors interest on funds in Servicing Accounts, to the extent
required by law and, to the extent that interest earned on funds in the
Servicing Accounts is insufficient, to pay such interest from its own funds,
without any reimbursement therefor. Notwithstanding the foregoing, the Servicer
shall not be obligated to collect Escrow Payments if the related Mortgage Loan
does not require such payments but the Servicer shall nevertheless be obligated
to make Servicing Advances as provided in Section 3.01 and
Section 3.11. In the event the Servicer shall deposit in the Servicing
Accounts any amount not required to be deposited therein, it may at any time
withdraw such amount from the Servicing Accounts, any provision to the contrary
notwithstanding.
To
the
extent that a Mortgage does not provide for Escrow Payments, the Servicer (i)
shall determine whether any such payments are made by the Mortgagor in a manner
and at a time that is necessary to avoid the loss of the Mortgaged Property
due
to a tax sale or the foreclosure as a result of a tax lien and (ii) shall ensure
that all insurance required to be maintained on the Mortgaged Property pursuant
to this Agreement is maintained. If any such payment has not been made and
the
Servicer receives notice of a tax lien with respect to the Mortgage Loan being
imposed, the Servicer shall, promptly and to the extent required to avoid loss
of the Mortgaged Property, advance or cause to be advanced funds necessary
to
discharge such lien on the Mortgaged Property unless the Servicer determines
the
advance to be nonrecoverable. The Servicer assumes full responsibility for
the
payment of all such bills and shall effect payments of all such bills
irrespective of the Mortgagor’s faithful performance in the payment of same or
the making of the Escrow Payments and shall make Servicing Advances to effect
such payments subject to its determination of recoverability.
83
SECTION
3.08. Collection
Account and Distribution Account.
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain one or more
“Collection Accounts”, held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deposit
or
cause to be deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one Business
Day after the Servicer’s receipt thereof, and shall thereafter deposit in the
Collection Account, in no event later than two Business Days after the deposit
of good funds into the clearing account, as and when received or as otherwise
required hereunder, the following payments and collections received or made
by
it on or subsequent to the Cut-off Date other than amounts attributable to
a Due
Date on or prior to the Cut-off Date:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee and any
Prepayment Interest Excess) on each Mortgage Loan;
(iii) all
Insurance Proceeds and Liquidation Proceeds (other than proceeds collected
in
respect of any particular REO Property) and all Subsequent Recoveries with
respect to the Mortgage Loans;
(iv) any
amounts required to be deposited by the Servicer pursuant to Section 3.10
of this Agreement in connection with any losses realized on Permitted
Investments with respect to funds held in the Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.11(a) of this Agreement in respect of any blanket
policy deductibles; and
(vi) any
Purchase Price or Substitution Shortfall Amount delivered to the Servicer and
all proceeds (net of amounts payable or reimbursable to the Servicer, the Master
Servicer, the Trustee, the Custodian or the Securities Administrator) of
Mortgage Loans purchased in accordance with Section 2.03, Section 3.13
or Section 10.01 of this Agreement.
The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, Ancillary Income, Prepayment Interest Excess and payments in the
nature of late payment charges, assumption fees or other similar fees need
not
be deposited by the Servicer in the Collection Account and may be retained
by
the Servicer as additional servicing compensation. In the event the Servicer
shall deposit in the Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Collection Account,
any provision herein to the contrary notwithstanding.
84
(b) On
behalf
of the Trust Fund, the Securities Administrator shall establish and maintain
one
or more accounts (such account or accounts, the “Distribution Account”), held in
trust for the benefit of the Trustee, the Trust Fund and the Certificateholders.
On behalf of the Trust Fund, the Servicer shall deliver to the Securities
Administrator in immediately available funds for deposit in the Distribution
Account on or before 12:00 noon New York time on the Servicer Remittance Date,
that portion of the Available Distribution Amount (calculated without regard
to
the references in clause (2) of the definition thereof to amounts that may
be
withdrawn from the Distribution Account) for the related Distribution Date
then
on deposit in the Collection Account and the amount of any funds reimbursable
to
an Advance Financing Person pursuant to Section 3.25 of this Agreement.
With
respect to any remittance received by the Securities Administrator after the
Servicer Remittance Date on which such payment was due, the Securities
Administrator shall send written notice thereof to the Servicer. The Servicer
shall pay to the Securities Administrator interest on any such late payment
by
the Servicer at an annual rate equal to Prime Rate (as defined in The
Wall Street Journal)
plus
one percentage point, but in no event greater than the maximum amount permitted
by applicable law. Such interest shall be paid by the Servicer to the Securities
Administrator on the date such late payment is made and shall cover the period
commencing with the day following the Servicer Remittance Date and ending with
the Business Day on which such payment is made, both inclusive. The payment
by
the Servicer of any such interest, or the failure of the Securities
Administrator to notify the Servicer of such interest, shall not be deemed
an
extension of time for payment or a waiver of any Event of Default by the
Servicer.
On
the
Servicer Remittance Date, GMACM shall remit all amount required to be remitted
to the Securities Administrator for deposit in the Distribution Account as
provided in the Servicing Agreement.
(c) Funds
in
the Collection Account and in the Distribution Account may be invested in
Permitted Investments in accordance with the provisions set forth in
Section 3.10. The Servicer shall give notice to the Trustee, the Securities
Administrator and the Master Servicer of the location of the Collection Account
when established and prior to any change thereof. The Securities Administrator
shall give notice to the Servicer and the Depositor of the location of the
Distribution Account when established and prior to any change
thereof.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
in
immediately available funds to the Securities Administrator for deposit in
the
Distribution Account. In the event the Servicer shall deliver to the Securities
Administrator for deposit in the Distribution Account any amount not required
to
be deposited therein, it may at any time request that the Securities
Administrator withdraw such amount from the Distribution Account and remit
to it
any such amount, any provision herein to the contrary notwithstanding. In no
event shall the Securities Administrator incur liability as a result of
withdrawals from the Distribution Account at the direction of the Servicer
in
accordance with the immediately preceding sentence. In addition, the Servicer
shall deliver to the Securities Administrator no later than the Servicer
Remittance Date the amounts set forth in clauses (i) through (iv)
below:
(i) any
P&I Advances, as required pursuant to Section 5.03 of this
Agreement;
85
(ii) any
amounts required to be deposited pursuant to Section 3.21(d) or 3.21(f) of
this Agreement in connection with any related REO Property;
(iii) any
amounts to be paid in connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section 10.01 of this Agreement; and
(iv) any
amounts required to be deposited pursuant to Section 3.22 of this Agreement
in connection with any Prepayment Interest Shortfalls.
SECTION
3.09. Withdrawals
from the Collection Account and Distribution Account.
(a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 5.03 of this
Agreement:
(i) to
remit
to the Securities Administrator for deposit in the Distribution Account the
amounts required to be so remitted pursuant to Section 3.08(b) of this
Agreement or permitted to be so remitted pursuant to the first sentence of
Section 3.08(d) of this Agreement;
(ii) subject
to Section 3.13(d) of this Agreement, to reimburse itself (including any
successor Servicer) for P&I Advances made by it, but only to the extent of
amounts received which represent Late Collections (net of the related Servicing
Fees) of Monthly Payments on related Mortgage Loans with respect to which such
P&I Advances were made in accordance with the provisions of
Section 5.03;
(iii) subject
to Section 3.13(d) of this Agreement, to pay itself any unpaid Servicing
Fees and reimburse itself any unreimbursed Servicing Advances with respect
to
each related Mortgage Loan, but only to the extent of any Liquidation Proceeds
and Insurance Proceeds received with respect to such related Mortgage Loan
or
rental or other income from the related REO Property;
(iv) to
pay to
itself as servicing compensation (in addition to the Servicing Fee or any
portion thereof payable to the Servicer) on the Servicer Remittance Date any
interest or investment income earned on funds deposited in the Collection
Account;
86
(v) to
pay to
itself or the Sponsor, as the case may be, with respect to each related Mortgage
Loan that has previously been purchased or replaced pursuant to
Section 2.03 or Section 3.13(c) of this Agreement all amounts received
thereon not included in the Purchase Price or the Substitution Shortfall
Amount;
(vi) to
reimburse itself (including any successor to the Servicer) for
(A) any
P&I Advance or Servicing Advance previously made by it which the Servicer
has determined to be a Nonrecoverable P&I Advance or a Nonrecoverable
Servicing Advance in accordance with the provisions of Section 5.03 of this
Agreement; provided, however, the Servicer shall not be entitled to
reimbursement for any Servicing Advance made prior to the Cut-off Date if the
Servicer determines that such Servicing Advance constitutes a Nonrecoverable
Servicing Advance;
(B) any
unpaid Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under Section 3.08(a)(iii) of this Agreement; or
(C) any
P&I Advance or Servicing Advance made with respect to a delinquent Mortgage
Loan which Mortgage Loan has been modified by the Servicer in accordance with
the terms of this Agreement; provided that the Servicer shall only reimburse
itself for such P&I Advances and Servicing Advances at the time of such
modification or as otherwise provided in this Section 3.09;
(vii) to
reimburse itself or the Depositor for expenses incurred by or reimbursable
to
itself or the Depositor, as the case may be, pursuant to Section 3.01 or
Section 7.03 of this Agreement;
(viii) to
reimburse itself or the Trustee, as the case may be, for expenses reasonably
incurred in respect of the breach or defect giving rise to the purchase
obligation under Section 2.03 of this Agreement that were included in the
Purchase Price of the related Mortgage Loan, including any expenses arising
out
of the enforcement of the purchase obligation;
(ix) to
pay,
or to reimburse itself for advances in respect of, expenses incurred in
connection with any related Mortgage Loan pursuant to Section 3.13(b) of
this Agreement;
(x) to
pay to
itself any Prepayment Interest Excess on the related Mortgage Loans to the
extent not retained pursuant to Section 3.08(a)(ii)) of this Agreement;
and
(xi) to
clear
and terminate the Collection Account pursuant to Section 10.01 of this
Agreement.
87
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Collection Account, to the extent held by or on behalf of it, pursuant to
subclauses (ii), (iii), (v), (vi), (vii), (viii), (ix), (x) and (xi)
above.
(b) The
Securities Administrator shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without
priority:
(i) to
make
distributions to Certificateholders in accordance with Section 5.01 of this
Agreement;
(ii) to
pay to
itself, the Custodian and the Master Servicer amounts to which it is entitled
pursuant to Section 9.05 of this Agreement or any other provision of this
Agreement and any Extraordinary Trust Fund Expenses;
(iii) to
reimburse itself or the Master Servicer pursuant to Section 8.01(a) and
Section 8.02 of this Agreement;
(iv) to
pay
any amounts in respect of taxes pursuant to Section 11.01(g)(v) of this
Agreement;
(v) to
pay
the Credit Risk Management Fee to the Credit Risk Manager; and
(vi) to
clear
and terminate the Distribution Account pursuant to Section 10.01 of this
Agreement.
SECTION
3.10. Investment
of Funds in the Investment Accounts.
(a) The
Servicer may direct, by means of written directions (which may be standing
directions), any Depository Institution maintaining the Collection Account
to
invest the funds in the Collection Account (for purposes of this
Section 3.10, an “Investment Account”) in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the date on which
such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the Securities Administrator is the obligor thereon,
and
(ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the Securities Administrator
is
the obligor on such Permitted Investment. Amounts in the Distribution Account
may be invested in Permitted Investments as directed in writing by the Master
Servicer and maturing, unless payable on demand, (i) no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the Securities Administrator is the obligor thereon, and (ii) no later than
the
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if the Securities Administrator is the obligor thereon.
All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds shall be made in the name of the Trustee (in its
capacity as such) or in the name of a nominee of the Trustee. The Securities
Administrator shall be entitled to sole possession over each such investment
in
the Distribution Account and, subject to subsection (b) below, the income
thereon, and any certificate or other instrument evidencing any such investment
shall be delivered directly to the Securities Administrator or its agent,
together with any document of transfer necessary to transfer title to such
investment to the Trustee or its nominee. In the event amounts on deposit in
the
Collection Account are at any time invested in a Permitted Investment payable
on
demand, the party with investment discretion over such Investment Account
shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
88
(y) demand
payment of all amounts due thereunder promptly upon receipt by such party of
written notice from the Servicer that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on deposit
in
the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account shall be for the benefit of the Servicer and shall be subject
to its withdrawal in accordance with Section 3.09. The Servicer shall
deposit in the Collection Account the amount of any loss incurred in respect
of
any such Permitted Investment made with funds in such account immediately upon
realization of such loss. All earnings and gain realized from the investment
of
funds deposited in the Distribution Account shall be for the benefit of the
Master Servicer. The Master Servicer shall remit from its own funds for deposit
into the Distribution Account the amount of any loss incurred on Permitted
Investments in the Distribution Account.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
may and, subject to Section 9.01 and Section 9.02(a)(v), shall, at the
written direction of the Servicer, take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings.
(d) The
Trustee, the Master Servicer or their respective Affiliates are permitted to
receive additional compensation that could be deemed to be in the Trustee’s or
the Master Servicer’s economic self-interest for (i) serving as investment
adviser, administrator, shareholder servicing agent, custodian or sub-custodian
with respect to certain of the Permitted Investments, (ii) using Affiliates
to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments. Such compensation shall not
be
considered an amount that is reimbursable or payable to the Trustee or the
Master Servicer pursuant to Section 3.09 or 3.10 or otherwise payable in
respect of Extraordinary Trust Fund Expenses. Such additional compensation
shall
not be an expense of the Trust Fund.
89
SECTION
3.11. Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage and Primary
Mortgage Insurance.
(a) The
terms
of each Mortgage Note require the related Mortgagor to maintain fire, flood
and
hazard insurance policies. To the extent such policies are not maintained,
the
Servicer shall cause to be maintained for each Mortgaged Property fire and
hazard insurance with extended coverage as is customary in the area where the
Mortgaged Property is located in an amount which is at least equal to the lesser
of the current principal balance of the related Mortgage Loan and the amount
necessary to compensate fully for any damage or loss to the improvements which
are a part of such property on a replacement cost basis, in each case in an
amount not less than such amount as is necessary to avoid the application of
any
coinsurance clause contained in the related hazard insurance policy. The
Servicer shall also cause to be maintained fire and hazard insurance on each
REO
Property with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding principal balance of the related Mortgage
Loan
(including, with respect to each second lien Mortgage Loan, the outstanding
principal balance of the related first lien) at the time it became an REO
Property, in each case in an amount not less than such amount as is necessary
to
avoid the application of any coinsurance clause contained in the related hazard
insurance policy. The Servicer will comply in the performance of this Agreement
with all reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by the Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor
in
accordance with Accepted Servicing Practices, subject to the terms and
conditions of the related Mortgage and Mortgage Note) shall be deposited in
the
Collection Account, subject to withdrawal pursuant to Section 3.09, if
received in respect of a Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.21, if received in respect of an REO
Property. Any cost incurred by the Servicer in maintaining any such insurance
shall not, for the purpose of calculating distributions to Certificateholders,
be added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. It is understood
and agreed that no earthquake or other additional insurance is to be required
of
any Mortgagor other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
If
the related Mortgaged Property is located in an area identified by the Flood
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available) the Servicer shall cause to be maintained
a
flood insurance policy in an amount representing coverage equal to the lesser
of: (i) the minimum amount required, under the terms of coverage, to compensate
for any damage or loss on a replacement cost basis (or the unpaid balance of
the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under
the
Flood Disaster Protection Act of 1973, as amended. If at any time during the
term of the Mortgage Loan, the Servicer determines in accordance with applicable
law that a Mortgaged Property or REO Property is located in a special flood
hazard area and is not covered by flood insurance or is covered in an amount
less than the amount required by the Flood Disaster Protection Act of 1973,
as
amended, the Servicer shall notify the related Mortgagor that the Mortgagor
must
obtain such flood insurance coverage, and if said Mortgagor fails to obtain
the
required flood insurance coverage within forty-five (45) days after such
notification, the Servicer shall immediately force place the required flood
insurance on the Mortgagor’s behalf.
90
In
the
event that the Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy Rating of B:VI or better in Best’s Key Rating
Guide or otherwise acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac insuring against
hazard losses on all of the related Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations to cause fire and hazard insurance
to
be maintained on the Mortgaged Properties, it being understood and agreed that
such policy may contain a deductible clause, in which case the Servicer shall,
in the event that there shall not have been maintained on the related Mortgaged
Property or REO Property a policy complying with this Section 3.11, and
there shall have been one or more losses which would have been covered by such
policy, deposit to the Collection Account from its own funds the amount not
otherwise payable under the blanket policy because of such deductible clause.
In
connection with its activities as administrator and servicer of the related
Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself,
the Trustee, the Trust Fund, the Certificateholders, claims under any such
blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of its respective obligations under this Agreement, which policy
or
policies shall be in such form and amount that would meet the requirements
of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac if it were the purchaser of the related Mortgage
Loans, unless the Servicer, has obtained a waiver of such requirements from
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall also maintain a fidelity bond
in
the form and amount that would meet the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, unless the Servicer, has obtained a waiver of such requirements from ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall be deemed to have complied with this
provision if an Affiliate of the Servicer, has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Servicer. Any such errors
and omissions policy and fidelity bond shall by its terms not be cancelable
without thirty days’ prior written notice to the Trustee.
(c) The
Servicer shall not take any action that would result in noncoverage under any
applicable primary mortgage insurance policy of any loss which, but for the
actions of the Servicer would have been covered thereunder. The Servicer shall
use its best efforts to keep in force and effect any applicable primary mortgage
insurance policy and, to the extent that the related Mortgage Loan requires
the
Mortgagor to maintain such insurance, any other primary mortgage insurance
applicable to any Mortgage Loan. Except as required by applicable law or the
related Mortgage Loan Documents, the Servicer shall not cancel or refuse to
renew any such primary mortgage insurance policy that is in effect at the date
of the initial issuance of the related Mortgage Note and is required to be
kept
in force hereunder.
The
Servicer agrees to present on behalf of the Trustee and the Certificateholders
claims to the applicable 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 3.08 of this Agreement, any
amounts collected by the Servicer under any primary mortgage insurance policies
shall be deposited in the Collection Account, subject to withdrawal pursuant
to
Section 3.09 of this Agreement. Notwithstanding any provision to the
contrary, the Servicer shall not have any responsibility with respect to a
primary mortgage insurance policy unless the Servicer has been made aware of
such policy, as reflected on the Mortgage Loan Schedule or otherwise and have
been provided with adequate information to administer such policy.
91
(d) The
Servicer need not obtain the approval of the Master Servicer prior to releasing
any Insurance Proceeds to the Mortgagor to be applied to the restoration or
repair of the Mortgaged Property if such release is in accordance with Accepted
Servicing Practices. At a minimum, the Servicer shall comply with the following
conditions in connection with any such release of Insurance Proceeds in excess
of $20,000:
(i) the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii) the
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens; and
(iii) pending
repairs or restoration, the Servicer shall place the Insurance Proceeds in
the
related Escrow Account, if any.
(e) The
Servicer agrees to present on behalf of the Trustee and the Certificateholders
claims to the applicable 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 3.08, any amounts collected
by the Servicer under any primary mortgage insurance policies shall be deposited
in the Collection Account, subject to withdrawal pursuant to Section 3.09.
Notwithstanding any provision to the contrary, the Servicer shall not have
any
responsibility with respect to a primary mortgage insurance policy unless the
Servicer has been made aware of such policy, as reflected on the Mortgage Loan
Schedule or otherwise and have been provided with adequate information to
administer such policy.
SECTION
3.12. Enforcement
of Due-on-Sale Clauses; Assumption Agreements
The
Servicer shall, to the extent it has knowledge of any conveyance of any related
Mortgaged Property by any related Mortgagor (whether by absolute conveyance
or
by contract of sale, and whether or not the Mortgagor remains or is to remain
liable under the Mortgage Note and/or the Mortgage), exercise its rights to
accelerate the maturity of such Mortgage Loan under the “due-on-sale” clause, if
any, applicable thereto; provided, however, that the Servicer shall not exercise
any such rights if prohibited by law from doing so. If the Servicer reasonably
believes that it is unable under applicable law to enforce such “due-on-sale”
clause, or if any of the other conditions set forth in the proviso to the
preceding sentence apply, the Servicer shall enter into an assumption and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. The Servicer is also authorized
to
enter into a substitution of liability agreement with such person, pursuant
to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note,
provided that no such substitution shall be effective unless such person
satisfies the then current underwriting criteria of the Servicer for mortgage
loans similar to the related Mortgage Loans. In connection with any assumption
or substitution, the Servicer shall apply such underwriting standards and follow
such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. The Servicer shall not take or enter into any assumption and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy. Any fee collected
by
the Servicer in respect of an assumption or substitution of liability agreement
will be retained by the Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the related Mortgage Rate and the amount of the
Monthly Payment) may be amended or modified, except as otherwise required
pursuant to the terms thereof. The Servicer shall notify the Trustee (or the
Custodian) that any such substitution or assumption agreement has been completed
by forwarding to the Trustee (or the Custodian) the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of
such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
92
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason whatever.
For purposes of this Section 3.12, the term “assumption” is deemed to also
include a sale (of the Mortgaged Property) subject to the Mortgage that is
not
accompanied by an assumption or substitution of liability
agreement.
SECTION
3.13. Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall use commercially reasonable efforts, consistent with Accepted
Servicing Practices, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments pursuant to Section 3.06. The Servicer
shall be responsible for all costs and expenses incurred by it in any such
proceedings; provided, however, that such costs and expenses will be recoverable
as Servicing Advances by the Servicer as contemplated in Sections 3.09 and
3.21.
The foregoing is subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage from an Uninsured Cause, the Servicer shall
not be required to expend its own funds toward the restoration of such property
unless it shall determine in its discretion that such restoration will increase
the proceeds of liquidation of the related Mortgage Loan after reimbursement
to
itself for such expenses.
(b) Notwithstanding
the foregoing provisions of this Section 3.13 or any other provision of
this Agreement, with respect to any Mortgage Loan as to which the Servicer
has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not, on behalf of the Trust Fund, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to,
such
Mortgaged Property, if, as a result of any such action, the Trust Fund, the
Trustee or the Certificateholders would be considered to hold title to, to
be a
“mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined,
based
on its reasonable judgment and a prudent report prepared by an Independent
Person who regularly conducts environmental audits using customary industry
standards, that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
93
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section 3.13 shall
be advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.09(a)(ix),
such right of reimbursement being prior to the rights of Certificateholders
to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans serviced by the Servicer.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund.
The cost of any such compliance, containment, cleanup or remediation shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Sections 3.09(a)(iii) or
3.09(a)(ix), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Collection Account received
in
respect of the affected Mortgage Loan or other Mortgage Loans serviced by the
Servicer.
(c) The
Servicer shall have the right to purchase from REMIC I any defaulted Mortgage
Loan serviced by it that is 90 days or more delinquent, which the Servicer
determines in good faith will otherwise become subject to foreclosure
proceedings (evidence of such determination to be delivered in writing to the
Trustee, in form and substance satisfactory to the Servicer and the Trustee
prior to purchase), at a price equal to the Purchase Price. The Purchase Price
for any Mortgage Loan purchased hereunder shall be deposited in the Collection
Account, and the Trustee, upon receipt of written certification from the
Servicer of such deposit, shall release or cause to be released to the Servicer
the related Mortgage File and the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as the Servicer shall furnish and as shall be
necessary to vest in the Servicer title to any Mortgage Loan released pursuant
hereto.
94
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds, in respect of any Mortgage Loan, will be applied in the
following order of priority: first, to reimburse the Servicer for any related
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances and Servicing Advances, pursuant to
Section 3.09(a)(ii) or (a)(iii); second, to accrued and unpaid interest on
the Mortgage Loan, to the date of the Final Recovery Determination, or to the
Due Date prior to the Distribution Date on which such amounts are to be
distributed if not in connection with a Final Recovery Determination; and third,
as a recovery of principal of the Mortgage Loan. If the amount of the recovery
so allocated to interest is less than the full amount of accrued and unpaid
interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Servicer as follows: first, to unpaid Servicing Fees; and
second, to the balance of the interest then due and owing. The portion of the
recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
Servicer pursuant to Section 3.09(a)(iii). The portion of the recovery
allocated to interest (net of unpaid Servicing Fees) and the portion of the
recovery allocated to principal of the Mortgage Loan shall be applied as
follows: first, to reimburse the Servicer for any related unreimbursed Servicing
Advances or P&I Advances in accordance with Section 3.09(a)(ii) and any
other amounts reimbursable to the Servicer pursuant to Section 3.09, and
second, as part of the amounts to be transferred to the Distribution Account
in
accordance with Section 3.08(b). Excess proceeds, if any, from the
liquidation of a Liquidated Mortgage Loan will be retained by the Servicer
as
additional servicing compensation pursuant to Section 3.15.
SECTION
3.14. Trustee
to Cooperate; Release of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
the Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will promptly furnish to the Custodian, on
behalf of the Trustee, two copies of a request for release substantially in
the
form attached to the Custodial Agreement signed by a Servicing Officer or in
a
mutually agreeable electronic format which will, in lieu of a signature on
its
face, originate from a Servicing Officer (which certification shall include
a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Collection Account have been
or
will be so deposited) and shall request that the Custodian, on behalf of the
Trustee, deliver to the Servicer the related Mortgage File. Upon receipt of
such
certification and request, the Custodian, on behalf of the Trustee, shall within
three (3) Business Days release the related Mortgage File to the Servicer and
the Trustee and the Custodian shall have no further responsibility with regard
to such Mortgage File. Upon any such payment in full, the Servicer is
authorized, to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as
the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that
no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Collection Account,
unless it shall represent a Servicing Advance.
95
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by the Servicer (in form reasonably acceptable to
the
Trustee) and as are necessary to the prosecution of any such proceedings. The
Custodian, on behalf of the Trustee, shall, upon the request of the Servicer,
and delivery to the Custodian, on behalf of the Trustee, of two copies of a
request for release signed by a Servicing Officer substantially in the form
attached to the Custodial Agreement (or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer), release within five (5) Business Days the related Mortgage
File held in its possession or control to the Servicer. Such trust receipt
shall
obligate the Servicer to return the Mortgage File to the Custodian on behalf
of
the Trustee, when the need therefor by the Servicer no longer exists unless
the
Mortgage Loan shall be liquidated, in which case, upon receipt of a certificate
of a Servicing Officer similar to that hereinabove specified, the Mortgage
File
shall be released by the Custodian, on behalf of the Trustee, to the
Servicer.
Notwithstanding
the foregoing, in connection with a Principal Prepayment in full of any Mortgage
Loan, the Master Servicer may request release of the related Mortgage File
from
the Custodian, in accordance with the provisions of the Custodial Agreement,
in
the event the Servicer fails to do so.
Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer, any court pleadings, requests for trustee’s sale or
other documents prepared and delivered to the Trustee and reasonably acceptable
to it and necessary to the foreclosure or trustee’s sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against
any
Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency judgment,
or to enforce any other remedies or rights provided by the Mortgage Note or
Mortgage or otherwise available at law or in equity. Each such certification
shall include a request that such pleadings or documents be executed by the
Trustee and a statement as to the reason such documents or pleadings are
required and that the execution and delivery thereof by the Trustee will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee’s sale.
So long as no Servicer Event of Default shall have occurred and be continuing,
the Servicer shall have the right to execute any and all such court pleadings,
requests and other documents as attorney-in-fact for, and on behalf of the
Trustee. Notwithstanding the preceding sentence, the Trustee shall in no way
be
liable or responsible for the willful malfeasance of the Servicer, or for any
wrongful or negligent actions taken by the Servicer, while the Servicer is
acting in its capacity as attorney in fact for and on behalf of the
Trustee.
96
SECTION
3.15. Servicing
Compensation.
As
compensation for its activities hereunder, the Servicer shall be entitled to
the
Servicing Fee with respect to each Mortgage Loan serviced by it payable solely
from payments of interest in respect of such Mortgage Loan, subject to
Section 3.22. In addition, the Servicer shall be entitled to recover unpaid
Servicing Fees out of Insurance Proceeds or Liquidation Proceeds to the extent
permitted by Section 3.09(a)(iii) and out of amounts derived from the
operation and sale of an REO Property to the extent permitted by
Section 3.21. The right to receive the Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the
Servicer’s responsibilities and obligations under this Agreement to the extent
permitted herein.
Additional
servicing compensation in the form of Ancillary Income shall be retained by
the
Servicer only to the extent such fees or charges are received by the Servicer.
The Servicer shall also be entitled pursuant to Section 3.09(a)(iv) to
withdraw from the Collection Account and pursuant to Section 3.21(b) to
withdraw from any REO Account, as additional servicing compensation, interest
or
other income earned on deposits therein, subject to Section 3.10. In
addition, the Servicer shall be entitled to retain or withdraw from the
Collection Account, pursuant to Section 3.09(a)(x), any Prepayment Interest
Excess with respect to the Mortgage Loans serviced by it as additional servicing
compensation. The Servicer shall be required to pay all expenses incurred by
it
in connection with its servicing activities hereunder and shall not be entitled
to reimbursement therefor except as specifically provided herein.
SECTION
3.16. Collection
Account Statements.
Upon
request, not later than fifteen (15) days after each Distribution Date, the
Servicer shall forward to the Master Servicer and the Securities Administrator
(and the Master Servicer shall deliver to the Depositor), a statement prepared
by the institution at which the Collection Account is maintained setting forth
the status of the Collection Account as of the close of business on such
Distribution Date and showing, for the period covered by such statement, the
aggregate amount of deposits into and withdrawals from the Collection Account.
Copies of such statement and any similar statements provided by the Servicer
shall be provided by the Securities Administrator to any Certificateholder
and
to any Person identified to the Securities Administrator as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party, provided such statement is delivered by the Servicer to the Securities
Administrator.
SECTION
3.17. Annual
Statement as to Compliance.
(a) The
Servicer shall deliver (and shall cause any Sub-Servicer engaged by it to
deliver) to the Master Servicer (and the Master Servicer shall deliver to the
Depositor) on or before March 15 of each year, commencing in March 2008, an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of the Servicer’s performance under this Agreement, or such other applicable
agreement in the case of a Sub-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 a Sub-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. Promptly
after receipt of each such Officer’s Certificate from the Servicer, any
Sub-Servicer engaged by the Servicer, the Depositor shall review such Officer’s
Certificate and, if applicable, consult with each such party, as applicable,
as
to the nature of any failures by such party, in the fulfillment of any of the
Servicer’s obligations hereunder or, in the case of a Sub-Servicer, under such
other applicable agreement.
97
(b) Failure
of the Servicer to comply timely with this Section 3.17 shall be deemed a
Servicer Event of Default as to the Servicer, automatically, without notice
and
without any cure period, and the Master Servicer may, in addition to whatever
rights the Master Servicer may have under this Agreement and at law or in equity
or to damages, including injunctive relief and specific performance, terminate
all the rights and obligations of the Servicer under this Agreement and in
and
to the Mortgage Loans and the proceeds thereof without compensating the Servicer
for the same (other than the Servicer’s right to reimbursement of ▇▇▇▇▇▇▇▇▇▇▇▇
▇&▇ Advances and Servicing Advances and accrued and unpaid Servicing Fees in
the manner provided in this Agreement). This paragraph shall supersede any
other
provision in this Agreement or any other agreement to the contrary.
(c) In
the
event the Servicer or any Sub-Servicer engaged by the Servicer is terminated,
assigns its rights and obligations under or resigns pursuant to the terms of
this Agreement, or any applicable agreement in the case of a Sub-Servicer,
as
the case may be, such party shall provide an Officer’s Certificate with respect
to the related year pursuant to this Section 3.17(c) or to such other
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation for the related year.
SECTION
3.18. Assessments
of Compliance and Attestation Reports.
(a) By
March
15 of each year, commencing in March 2008, the Servicer, at its own expense,
shall furnish, and shall cause any Servicing Function Participant engaged by
it
to furnish, each at its own expense, to the Master Servicer, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K required to
be
filed pursuant to Section 5.06(d), 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. Notwithstanding the foregoing, neither
the
Servicer nor any Servicing Function Participant engaged by the Servicer shall
be
required to deliver any assessments until March 31st in any given year so
long as it has not received written confirmation from the Depositor that a
Form
10-K is required to be filed in respect of the Trust for the preceding calendar
year; provided however that, notwithstanding the foregoing, no Subcontractor
will be required to deliver any assessments in any given year in which the
Form
10-K is not required to be filed.
98
(b) By
March
15 of each year, commencing in March 2008, the Servicer, at its own expense,
shall cause, and the Servicer 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 Servicer or such other
Servicing Function Participants, as the case may be) and that is a member of
the
American Institute of Certified Public Accountants to furnish a report to the
Master Servicer, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such party, which includes
an
assertion that such party has complied with the Relevant Servicing Criteria,
and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such party’s compliance with the Relevant
Servicing Criteria was fairly stated in all material respects, or it cannot
express an overall opinion regarding such party’s assessment of compliance with
the Relevant Servicing Criteria. In the event that an overall opinion cannot
be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language. Notwithstanding the
foregoing, neither the Servicer nor any Servicing Function Participant engaged
by the Servicer shall be required to deliver or cause the delivery of such
reports until March 31st in any given year so long as the Servicer has received
written confirmation from the Depositor that a Form 10-K is not required to
be
filed in respect of the Trust for the preceding fiscal year provided however
that, notwithstanding the foregoing, no Subcontractor will be required to
deliver any reports in any given year in which the Form 10-K is not required
to
be filed.
(c) Failure
of the Servicer to comply timely with this Section 3.18 shall be deemed a
Servicer Event of Default as to the Servicer, automatically, without notice
and
without any cure period, and the Master Servicer may, in addition to whatever
rights the Master Servicer may have under this Agreement and at law or in equity
or to damages, including injunctive relief and specific performance, terminate
all the rights and obligations of the Servicer under this Agreement and in
and
to the Mortgage Loans and the proceeds thereof without compensating the Servicer
for the same (other than the Servicer’s right to reimbursement of ▇▇▇▇▇▇▇▇▇▇▇▇
▇&▇ Advances and Servicing Advances and accrued and unpaid Servicing Fees in
the manner provided for in this Agreement). This paragraph shall supersede
any
other provision in this Agreement or any other agreement to the
contrary.
(d) In
the
event the Servicer or any Servicing Function Participant engaged by the Servicer
is terminated, assigns its rights and obligations under, or resigns pursuant
to
the terms of this Agreement, or any applicable agreement in the case of a
Servicing Function Participant, as the case may be, such party shall provide
a
report on assessment of compliance with respect to the related year pursuant
to
this Section 3.18(d) or to such other applicable agreement, notwithstanding
any such termination, assignment or resignation for the related
year.
(e) Notwithstanding
the foregoing provisions of this Section 3.18, (i) in the event that during
any
calendar year (or applicable portion thereof) the Servicer services 5% or less
of the Mortgage Loans, as calculated by the Master Servicer, or (ii) in any
calendar year in which an annual report on Form 10-K is not required to be
filed
with respect to the Trust, then, in each such event, the Servicer may, in lieu
of providing an assessment of compliance and attestation thereon in accordance
with Item 1122 of Regulation AB, provide (and cause each Subservicer and
Subcontractor described in clause (a)(iii) above to provide) to the Depositor
and the Master Servicer, by not later than March 15 of such calendar year,
an
Annual Independent Public Accountants’ Servicing Report. If the Servicer
provides an Annual Independent Public Accountants’
Servicing Report pursuant to this subsection (c), then the certification
required to be delivered by the Servicer (and its Subservicers and
Subcontractors) pursuant to clause
(a)(iv) above shall be in the form of Exhibit C-2 attached hereto.
99
SECTION
3.19. Annual
Certification; Additional Information.
(a) The
Servicer shall and shall cause any Servicing Function Participant engaged by
it
to, provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the
“Certifying
Person”),
by
March 15 of each year in which the Trust is subject to the reporting
requirements of the Exchange Act a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit C, 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 officer of the Master Servicer in charge of the master
servicing function shall serve as the Certifying Person on behalf of the Trust.
In the event the Servicer or any Servicing Function Participant engaged by
it is
terminated or resigns pursuant to the terms of this Agreement, or any applicable
Sub-Servicing agreement, as the case may be, such party shall provide a Back-Up
Certification to the Certifying Person pursuant to this Section 3.19 with
respect to the period of time it was subject to this Agreement or any applicable
Sub-Servicing Agreement, as the case may be.
(b) The
Servicer shall indemnify and hold harmless the Master Servicer, the Securities
Administrator, the Trustee, the Depositor and their respective officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.19 or the Servicer’s negligence, bad faith
or willful misconduct in connection therewith. Such indemnity shall survive
the
termination or resignation of the parties hereto or the termination of this
Agreement. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, the Securities Administrator,
the Trustee and the Depositor, then the Servicer agrees that it shall contribute
to the amount paid or payable by the Master Servicer, the Securities
Administrator, the Trustee and the Depositor as a result of the losses, claims,
damages or liabilities of the Master Servicer, the Securities Administrator,
the
Trustee and the Depositor in such proportion as is appropriate to reflect the
relative fault of the Master Servicer, the Securities Administrator, the Trustee
and the Depositor on the one hand and the Servicer on the other in connection
with a breach of the Servicer’s obligations under this
Section 3.19.
(c) The
Servicer shall provide to the Master Servicer prompt notice of the occurrence
of
any of the following:
(i) any
Servicer Event of Default under the terms of this Agreement, any merger,
consolidation or sale of substantially all of the assets of the Servicer, the
Servicer’s engagement of any Sub-Servicer to perform or assist in the
performance of any of the Servicer’s obligations under this Agreement, any
material litigation involving the Servicer that is material to the
Certificateholders, and to the extent disclosure is required under Regulation
AB, any affiliation or other significant relationship between the Servicer
and
the Sponsor, the Depositor, the Master Servicer, the Securities Administrator,
the Trustee, the Custodian, the Swap Provider and the originator.
100
(ii) If
the
Servicer has knowledge of the occurrence of any of the events described in
this
clause (ii), then no later than ten days prior to the deadline for the filing
of
any Distribution Report on Form 10-D in respect of the Trust, the Servicer
shall
provide to the Master Servicer notice of the occurrence of any of the following
events along with all information, data, and materials related thereto as may
be
required to be included in the related Distribution Report on Form 10-D (as
specified in the provisions of Regulation AB referenced below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or servicer transaction
covenants (Item 1121(a)(12) of Regulation AB); and
(C) any
material pool asset changes (such as, additions, substitutions or repurchases)
relating to the Mortgage Loans serviced by the Servicer (Item 1121(a)(14) of
Regulation AB).
(d) The
Servicer shall provide to the Securities Administrator and the Master Servicer
such additional information as the Securities Administrator and the Master
Servicer may reasonably request, including evidence of the authorization of
the
person signing any certification or statement, financial information and reports
and of the fidelity bond and errors and omissions insurance policy required
to
be maintained by the Servicer pursuant to this Agreement, and such other
information related to the Servicer or its performance hereunder.
SECTION
3.20. Access
to
Certain Documentation.
The
Servicer shall provide to the Depositor and the Trustee at the request of the
Office of Thrift Supervision, the FDIC, and any other federal or state banking
or insurance regulatory authority that may exercise authority over any
Certificate Owner, access to the documentation regarding the related Mortgage
Loans required by applicable laws and regulations. Such access shall be afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the Servicer designated by it. Nothing in this
Section 3.20 shall limit the obligation of the Servicer to comply with any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of
this Section. Nothing in this Section 3.20 shall require the Servicer to
collect, create, collate or otherwise generate any information that it does
not
generate in its usual course of business. The Servicer shall not be required
to
make copies of or ship documents to any Person unless provisions have been
made
for the reimbursement of the costs thereof.
101
SECTION
3.21. Title,
Management and Disposition of REO Property.
(a) The
deed
or certificate of sale of any REO Property related to a Mortgage Loan shall
be
taken in the name of the Trustee, or its nominee, on behalf of the Trust Fund
and for the benefit of the Certificateholders. The Servicer, on behalf of REMIC
I, shall either sell any REO Property by the close of the third calendar year
following the calendar year in which REMIC I acquires ownership of such REO
Property for purposes of Section 860(a)(8) of the Code or request from the
Internal Revenue Service, no later than sixty (60) days before the day on which
the three-year grace period would otherwise expire an extension of the
three-year grace period, unless the Servicer had delivered to the Trustee an
Opinion of Counsel, addressed to the Trustee and the Depositor, to the effect
that the holding by REMIC I of such REO Property subsequent to three (3) years
after its acquisition will not result in the imposition on any Trust REMIC
created hereunder of taxes on “prohibited transactions” thereof, as defined in
Section 860F of the Code, or cause any Trust REMIC hereunder to fail to
qualify as a REMIC under Federal law at any time that any Certificates are
outstanding. The Servicer shall manage, conserve, protect and operate each
REO
Property for the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to
fail
to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any Trust REMIC
created hereunder of any “income from non-permitted assets” within the meaning
of Section 860F(a)(2)(B) of the Code, or any “net income from foreclosure
property” which is subject to taxation under the REMIC Provisions.
(b) The
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall establish and maintain with respect to REO Properties
an account held in trust for the Trustee, on behalf of the Trust Fund and for
the benefit of the Certificateholders (the “REO Account”), which shall be an
Eligible Account. The Servicer shall be permitted to allow the Collection
Account to serve as the REO Account, subject to the maintenance of separate
ledgers for each REO Property. The Servicer shall be entitled to retain or
withdraw any interest income paid on funds deposited in the related REO
Account.
(c) The
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property related to a Mortgage Loan serviced by it
as
are consistent with the manner in which the Servicer manages and operates
similar property owned by it or any of its Affiliates, all on such terms and
for
such period as the Servicer deems to be in the best interests of
Certificateholders. In connection therewith, the Servicer shall deposit, or
cause to be deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one (1)
Business Day after the Servicer’s receipt thereof, and shall thereafter deposit
in the REO Account in no event more than two (2) Business Days after the deposit
of good funds into the clearing account, all revenues received by it with
respect to an REO Property related to a Mortgage Loan serviced by it and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of such REO Property including, without limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
102
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if,
the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Subject
to compliance with applicable laws and regulations as shall at any time be
in
force, and notwithstanding the foregoing, the Servicer, on behalf of the Trust
Fund, shall not:
(i) enter
into, renew or extend any New Lease with respect to any REO Property, if the
New
Lease by its terms will give rise to any income that does not constitute Rents
from Real Property;
(ii) permit
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(iii) authorize
or permit any construction on any REO Property, other than the completion of
a
building or other improvement thereon, and then only if more than ten percent
of
the construction of such building or other improvement was completed before
default on the related Mortgage Loan became imminent, all within the meaning
of
Section 856(e)(4)(B) of the Code; or
(iv) allow
any
Person to Directly Operate any REO Property on any date more than ninety (90)
days after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel, provided
to
the Servicer and the Trustee, to the effect that such action will not cause
such
REO Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by REMIC I, in
which case the Servicer may take such actions as are specified in such Opinion
of Counsel.
The
Servicer may contract with any Independent Contractor for the operation and
management of any REO Property, provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the Servicer
as soon as practicable, but in no event later than thirty (30) days following
the receipt thereof by such Independent Contractor;
103
(iii) none
of
the provisions of this Section 3.21(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
the Servicer of any of its duties and obligations to the Trustee on behalf
of
the Trust Fund and for the benefit of the Certificateholders with respect to
the
operation and management of any such REO Property; and
(iv) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.15 is sufficient to pay such fees. Any
such agreement shall include a provision that such agreement may be immediately
terminated by any successor Servicer without fee, in the event the Servicer
shall for any reason, no longer be the Servicer of the Mortgage Loans (including
termination due to a Servicer Event of Default).
(d) In
addition to the withdrawals permitted under Section 3.21(c), the Servicer
may from time to time make withdrawals from the REO Account for any REO
Property: (i) to pay itself unpaid Servicing Fees in respect of the related
Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for unreimbursed
Servicing Advances and Advances made in respect of such REO Property or the
related Mortgage Loan. On the Servicer Remittance Date, the Servicer shall
withdraw from each REO Account and deposit into the Distribution Account in
accordance with Section 3.08(d)(ii), for distribution on the related
Distribution Date in accordance with Section 5.01, the income from the
related REO Property received during the prior calendar month, net of any
withdrawals made pursuant to Section 3.21(c) or this
Section 3.21(d).
(e) Subject
to the time constraints set forth in Section 3.21(a), each REO Disposition
shall be carried out by the Servicer at such price and upon such terms and
conditions as the Servicer shall deem necessary or advisable, as shall be normal
and usual in accordance with Accepted Servicing Practices.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer as provided above, shall be deposited in the
Distribution Account in accordance with Section 3.08(d)(ii) on the Servicer
Remittance Date in the month following the receipt thereof for distribution
on
the related Distribution Date in accordance with Section 5.01. Any REO
Disposition shall be for cash only (unless changes in the REMIC Provisions
made
subsequent to the Startup Day allow a sale for other
consideration).
104
(g) The
Servicer shall file information returns (and shall provide a certification
of a
Servicing Officer to the Master Servicer that such filings have been made)
with
respect to the receipt of mortgage interest received in a trade or business,
reports of foreclosures and abandonments of any Mortgaged Property and
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code, respectively. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the
Code.
SECTION
3.22. Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls; Relief Act
Interest Shortfalls.
The
Servicer shall deliver to the Securities Administrator for deposit into the
Distribution Account on the Servicer Remittance Date from its own funds an
amount equal to the lesser of (i) the aggregate amount of the Prepayment
Interest Shortfalls attributable to Principal Prepayments in full on the related
Mortgage Loans for the related Distribution Date resulting solely from voluntary
Principal Prepayments received by the Servicer during the portion of the related
Prepayment Period occurring between the fourteenth (14th)
day of
the month preceding the month preceding the month in which the related
Distribution Date occurs and ending on the last day of such month and (ii)
the
aggregate amount of the related Servicing Fees payable to Servicer on such
Distribution Date with respect to the related Mortgage Loans. The Servicer
shall
not have the right to reimbursement for any amounts remitted to the Securities
Administrator in respect of this Section 3.22. The Servicer shall not be
obligated to pay the amounts set forth in this Section 3.22 with respect to
shortfalls resulting from the application of the Relief Act.
SECTION
3.23. Obligations
of the Servicer in Respect of Mortgage Rates and Monthly Payments.
In
the
event that a shortfall in any collection on or liability with respect to any
Mortgage Loan results from or is attributable to adjustments to Mortgage Rates,
Monthly Payments or Scheduled Principal Balances that were made by the Servicer
in a manner not consistent with the terms of the related Mortgage Note and
this
Agreement, the Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Securities Administrator for deposit in the
Distribution Account from its own funds the amount of any such shortfall and
shall indemnify and hold harmless the Trust Fund, the Trustee, the Securities
Administrator, the Master Servicer, the Depositor and any successor servicer
in
respect of any such liability. Such indemnities shall survive the termination
or
discharge of this Agreement. Notwithstanding the foregoing, this
Section 3.23 shall not limit the ability of the Servicer to seek recovery
of any such amounts from the related Mortgagor under the terms of the related
Mortgage Note and Mortgage, to the extent permitted by applicable
law.
SECTION
3.24. [Reserved].
SECTION
3.25. Advance
Facility.
(a) Notwithstanding
anything to the contrary contained herein, (i) the Servicer is hereby authorized
to enter into an advance facility (“Advance Facility”) but no more than two
Advance Facilities, without the prior written consent of the Trustee, which
consent shall not be unreasonably withheld, under which (A) the Servicer sells,
assigns or pledges to an advancing person (an “Advance Financing Person”) its
rights under this Agreement to be reimbursed for any P&I Advances or
Servicing Advances and/or (B) an Advance Financing Person agrees to finance
some
or all P&I Advances or Servicing Advances required to be made by the
Servicer pursuant to this Agreement and (ii) the Servicer is hereby authorized
to assign its rights to the Servicing Fee (which rights shall terminate upon
the
resignation, termination or removal of the Servicer pursuant to the terms of
this Agreement); it being understood that neither the Trust Fund nor any party
hereto shall have a right or claim (including without limitation any right
of
offset) to any amounts for reimbursement of P&I Advances or Servicing
Advances so assigned or to the portion of the Servicing Fee so assigned. Subject
to the provisions of the first sentence of this Section 3.25(a), no consent
of the Depositor, Trustee, Master Servicer, Certificateholders or any other
party is required before the Servicer may enter into an Advance Facility, but
the Servicer shall provide notice to the Depositor, Master Servicer and the
Trustee of the existence of any such Advance Facility promptly upon the
consummation thereof stating (a) the identity of the Advance Financing Person
and (b) the identity of any Person (“Servicer’s Assignee”) who has the right to
receive amounts in reimbursement of previously ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances or
Servicing Advances. Notwithstanding the existence of any Advance Facility under
which an advancing person agrees to finance P&I Advances and/or Servicing
Advances on the Servicer’s behalf, the Servicer shall remain obligated pursuant
to this Agreement to make P&I Advances and Servicing Advances pursuant to
and as required by this Agreement, and shall not be relieved of such obligations
by virtue of such Advance Facility.
105
(b) Reimbursement
amounts (“Advance Reimbursement Amounts”) shall consist solely of amounts in
respect of P&I Advances and/or Servicing Advances made with respect to the
related Mortgage Loans for which the Servicer would be permitted to reimburse
itself in accordance with this Agreement, assuming the Servicer had made the
related P&I Advance(s) and/or Servicing Advance(s).
(c) The
Servicer shall maintain and provide to any successor Servicer (with, upon
request, a copy to the Trustee) a detailed accounting on a loan-by-loan basis
as
to amounts advanced by, pledged or assigned to, and reimbursed to any Advance
Financing Person. The successor Servicer shall be entitled to rely on any such
information provided by the predecessor Servicer, and the successor Servicer
shall not be liable for any errors in such information.
(d) Reimbursement
amounts distributed with respect to each Mortgage Loan shall be allocated to
outstanding ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances or Servicing Advances (as the case may
be) made with respect to that Mortgage Loan on a “first-in, first out” (FIFO)
basis. The documentation establishing any Advance Facility shall require the
Servicer to provide to the related Advance Financing Person or its designee
loan-by-loan information with respect to each such reimbursement amount
distributed to such Advance Financing Person or Advance Facility trustee on
each
Distribution Date, to enable the Advance Financing Person or Advance Facility
trustee to make the FIFO allocation of each such reimbursement amount with
respect to each Mortgage Loan. The Servicer shall remain entitled to be
reimbursed by the Advance Financing Person or Advance Facility trustee for
all
P&I Advances and Servicing Advances funded by the Servicer to the extent the
related rights to be reimbursed therefor have not been sold, assigned or pledged
to an Advance Financing Person.
106
(e) Any
amendment to this Section 3.25 or to any other provision of this Agreement
that may be necessary or appropriate to effect the terms of an Advance Facility
as described generally in this Section 3.25, including amendments to add
provisions relating to a successor Servicer, may be entered into by the Trustee,
the Depositor, and the Servicer without the consent of any Certificateholder,
notwithstanding anything to the contrary in this Agreement, provided, that
the
Trustee has been provided an Opinion of Counsel that such amendment is
authorized hereunder and has no material adverse effect on the
Certificateholders, which opinion shall be an expense of the party requesting
such opinion but in any case shall not be an expense of the Trustee or the
Trust
Fund; provided, further, that the amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders if the
Person requesting the amendment obtains a letter from each Rating Agency
(instead of obtaining an Opinion of Counsel to such effect) stating that the
amendment would not result in the downgrading or withdrawal of the respective
ratings then assigned to the Certificates; it being understood and agreed that
any such rating letter in and of itself will not represent a determination
as to
the materiality of any such amendment and will represent a determination only
as
to the credit issues affecting any such rating. Prior to entering into an
Advance Facility, the Servicer shall notify the lender under such facility
in
writing that: (a) the P&I Advances and/or Servicing Advances financed by
and/or pledged to the lender are obligations owed to the Servicer on a
non-recourse basis payable only from the cash flows and proceeds received under
this Agreement for reimbursement of P&I Advances and/or Servicing Advances
only to the extent provided herein, and neither the Master Servicer, the
Securities Administrator, the Trustee nor the Trust are otherwise obligated
or
liable to repay any P&I Advances and/or Servicing Advances financed by the
lender; (b) the Servicer will be responsible for remitting to the lender the
applicable amounts collected by it as Servicing Fees and as reimbursement for
P&I Advances and/or Servicing Advances funded by the lender, as applicable,
subject to the restrictions and priorities created in this Agreement; and (c)
neither the Master Servicer, the Securities Administrator nor the Trustee shall
have any responsibility to calculate any amount payable under an Advance
Facility or to track or monitor the administration of the financing arrangement
between the Servicer and the lender or the payment of any amount under an
Advance Facility.
(f) The
Servicer shall indemnify the Master Servicer, the Securities Administrator,
the
Trustee and the Trust Fund for any cost, liability or expense relating to the
Advance Facility including, without limitation, a claim, pending or threatened,
by an Advance Financing Person.
SECTION
3.26. Indemnification.
The
Servicer agrees to indemnify the Trustee, Master Servicer and the Securities
Administrator, from, and hold the Trustee, Master Servicer and the Securities
Administrator harmless against, any loss, liability or expense (including
reasonable attorney’s fees and expenses) incurred by any such Person by reason
of the Servicer’s willful misfeasance, bad faith or gross negligence in the
performance of its duties under this Agreement or by reason of the Servicer’s
reckless disregard of its obligations and duties under this Agreement. Such
indemnity shall survive the termination or discharge of this Agreement and
the
resignation or removal of the Servicer, the Trustee, the Master Servicer and
the
Securities Administrator. Any payment hereunder made by the Servicer to any
such
Person shall be from the Servicer’s own funds, without reimbursement from REMIC
I therefor.
107
SECTION
3.27. Transfer
to a Special Servicer; Purchase of Delinquent Mortgage Loans.
Upon
a
Mortgage Loan becoming ninety (90) days or more delinquent, the Servicer may
be
terminated as Servicer with respect to such Mortgage Loan at the sole option
of
the Sponsor and all servicing rights and responsibilities with respect to such
Mortgage Loan will transfer to a special servicer pursuant to Section 7.11
of
this Agreement. If the Sponsor does not exercise such option with respect to
any
such Mortgage Loan and has not exercised such option previously, within ninety
(90) days following the date on which such Mortgage Loan became ninety (90)
days
delinquent, the Servicer shall have the right to purchase such Mortgage Loan
at
a price equal to 100% of the outstanding principal balance of such Mortgage
Loan
plus accrued and unpaid interest, plus unreimbursed Monthly Advances and
Servicing Advances, plus any unpaid Servicing Fees and Credit Risk Management
Fees. For the avoidance of doubt, once the Sponsor exercises its rights under
Section 7.11, the Servicer will no longer have the right to purchase any
Mortgage Loans that become ninety (90) days or more delinquent.
108
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING
OF
THE
MORTGAGE LOANS BY THE MASTER SERVICER
SECTION
4.01. Master
Servicer.
The
Master Servicer shall, from and after the Closing Date supervise, monitor and
oversee the obligations of ▇▇▇▇▇ Fargo under this Agreement and GMACM under
the
Servicing Agreement to service and administer the Mortgage Loans in accordance
with the terms of this Agreement or the Servicing Agreement, as applicable,
and
shall have full power and authority to do any and all things which it may deem
necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with the Servicers
as
necessary from time-to-time to carry out the Master Servicer’s obligations
hereunder, shall receive, review and evaluate all reports, information and
other
data provided to the Master Servicer by the Servicers and shall cause the
Servicers to perform and observe the covenants, obligations and conditions
to be
performed or observed by the related Servicer under this Agreement or the
Servicing Agreement, as applicable. The Master Servicer shall independently
and
separately monitor each Servicer’s servicing activities with respect to each
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to each Servicer’s and Master Servicer’s records, and based on such
reconciled and corrected information, prepare the statements specified in
Section 5.03 and any other information and statements required to be
provided by the Master Servicer hereunder. The Master Servicer shall reconcile
the results of its Mortgage Loan monitoring with the actual remittances of
each
Servicer to the Distribution Account pursuant to the terms hereof based on
information provided to the Master Servicer by each Servicer.
The
Trustee shall furnish each Servicer and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to it necessary or
appropriate to enable each Servicer and the Master Servicer to service and
administer the Mortgage Loans and REO Properties. The Trustee shall have no
responsibility for any action of the Master Servicer or the Servicers pursuant
to any such limited power of attorney and shall be indemnified by the Master
Servicer or the related Servicer, as applicable, for any cost, liability or
expense incurred by the Trustee in connection with such Person’s misuse of any
such power of attorney.
The
Trustee, the Custodian and the Securities Administrator shall provide access
to
the records and documentation in possession of the Trustee, the Custodian or
the
Securities Administrator regarding the Mortgage Loans and REO Property and
the
servicing thereof to the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request and during normal business hours at the office
of the Trustee, the Custodian or the Securities Administrator; provided,
however, that, unless otherwise required by law, none of the Trustee, the
Custodian or the Securities Administrator shall be required to provide access
to
such records and documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. The Trustee, the Custodian and the Securities
Administrator shall allow representatives of the above entities to photocopy
any
of the records and documentation and shall provide equipment for that purpose
at
a charge that covers the Trustee’s, the Custodian’s or the Securities
Administrator’s actual costs.
109
The
Trustee shall execute and deliver to the Servicer or the Master Servicer upon
request any court pleadings, requests for trustee’s sale or other documents
necessary or desirable to (i) the foreclosure or trustee’s sale with respect to
a Mortgaged Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or any other Mortgage Loan Document; (iii)
obtain a deficiency judgment against the Mortgagor; or (iv) enforce any other
rights or remedies provided by the Mortgage Note or any other Mortgage Loan
Document or otherwise available at law or equity.
SECTION
4.02. REMIC-Related
Covenants.
For
as
long as each REMIC shall exist, the Trustee and the Securities Administrator
shall act in accordance herewith to treat such REMIC as a REMIC, and the Trustee
and the Securities Administrator shall comply with any directions of the
Sponsor, the Servicers or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale
of
all or any portion of the Mortgage Loans or of any investment of deposits in
an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee has received a REMIC Opinion prepared
at the expense of the Trust Fund; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or
Section 2.03 of this Agreement, as applicable, accept any contribution to
any REMIC after the Startup Day without receipt of an Opinion of Counsel stating
that such contribution will not result in an Adverse REMIC Event as defined
in
Section 11.01(f) of this Agreement.
SECTION
4.03. Monitoring
of Servicers.
(a) The
Master Servicer shall be responsible for monitoring the compliance by ▇▇▇▇▇
Fargo with its duties under this Agreement or GMACM with its duties under the
Servicing Agreement. In the review of the related Servicer’s activities, the
Master Servicer may rely upon an Officer’s Certificate of the related Servicer
with regard to such Servicer’s compliance with the terms of this Agreement or
the terms of the Servicing Agreement, as applicable. In the event that the
Master Servicer, in its judgment, determines that a Servicer should be
terminated in accordance with the terms hereof or the terms of the Servicing
Agreement, or that a notice should be sent pursuant to the terms hereof or
the
terms of the Servicing Agreement with respect to the occurrence of an event
that, unless cured, would constitute a Servicer Event of Default or an event
of
default under the Servicing Agreement, the Master Servicer shall notify the
related Servicer, the Sponsor and the Trustee thereof and the Trustee shall
issue such notice or take such other action as it deems
appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of ▇▇▇▇▇ Fargo under this Agreement and GMACM
under the Servicing Agreement. In the event that ▇▇▇▇▇ Fargo fails to perform
its obligations in accordance with this Agreement the Master Servicer shall,
subject to this Section and Article VIII, terminate the rights and obligations
of ▇▇▇▇▇ Fargo hereunder in accordance with the provisions of Article VIII
of
this Agreement. In the event that GMACM fails to perform its obligations in
accordance with the Servicing Agreement, the Master Servicer shall terminate
the
rights and obligations of GMACM as servicer in accordance with the Servicing
Agreement and shall act as servicer of the Mortgage Loans or shall appoint
a
successor servicer in accordance with the provisions of Article VIII. In the
event that ▇▇▇▇▇ Fargo fails to perform its obligations in accordance with
this
Agreement, the Master Servicer shall terminate the rights and obligations of
▇▇▇▇▇ Fargo as servicer in accordance with this Agreement and the Trustee shall
act as servicer of the Mortgage Loans or shall appoint a successor servicer
in
accordance with the provisions of Article VIII. Such enforcement, including,
without limitation, the legal prosecution of claims 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. Except as set
forth below, the Master Servicer shall pay the costs of such enforcement at
its
own expense, provided that the Master Servicer and the Trustee shall not be
required to prosecute or defend any legal action except to the extent that
the
Master Servicer or the Trustee, as applicable, shall have received reasonable
indemnity for its costs and expenses in pursuing such action. To the extent
that
such costs and expenses are not indemnified by ▇▇▇▇▇ Fargo or GMACM hereunder
or
under the Servicing Agreement, then the Trustee and the Master Servicer shall
be
indemnified for such costs and expenses out of the Trust Fund.
110
(c) The
Master Servicer or the Trustee, as applicable, shall be entitled to be
reimbursed by the related Servicer (or from amounts on deposit in the
Distribution Account if the Servicer is unable to fulfill its obligations
hereunder or under the Servicing Agreement) for all reasonable out-of-pocket
or
third party costs associated with the transfer of servicing from the predecessor
Servicer (or if the predecessor Servicer is the Master Servicer, from the
related Servicer immediately preceding the Master Servicer), including without
limitation, any reasonable out-of-pocket or third party 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 a
successor servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the successor servicer to service the Mortgage
Loans
properly and effectively, upon presentation of reasonable documentation of
such
costs and expenses.
(d) The
Master Servicer shall require the Servicers to comply with the remittance
requirements and other obligations set forth in this Agreement and the Servicing
Agreement, as applicable.
(e) If
the
Master Servicer or the Trustee acts as successor to a Servicer, it will not
assume any liability for the representations and warranties of the terminated
Servicer.
SECTION
4.04. Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
111
SECTION
4.05. Power
to
Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article XI, to do any and all things that it may deem necessary or desirable
in
connection with the master servicing and administration of the Mortgage Loans,
including but not limited to the power and authority (i) to execute and deliver,
on behalf of the Certificateholders and the Trustee, customary consents or
waivers and other instruments and documents, (ii) to consent to transfers of
any
Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages,
(iii) to collect any Insurance Proceeds and Liquidation Proceeds, and (iv)
to
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan, in each case, in accordance with the
provisions of this Agreement; provided, however, that the Master Servicer shall
not (and, consistent with its responsibilities under Section 4.03, shall
not permit a Servicer to) knowingly or intentionally take any action, or fail
to
take (or fail to cause to be taken) any action reasonably within its control
and
the scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause REMIC I,
REMIC II or REMIC III to fail to qualify as a REMIC or result in the imposition
of a tax upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) unless
the Master Servicer has received an Opinion of Counsel (but not at the expense
of the Master Servicer) to the effect that the contemplated action will not
cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC or result
in
the imposition of a tax upon REMIC I, REMIC II or REMIC III, as the case may
be.
The Trustee shall furnish the Master Servicer, upon written request from a
Servicing Officer, with any powers of attorney prepared and delivered to it
and
reasonably acceptable to it by empowering the Master Servicer or the Servicers
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 this Agreement or the Servicing Agreement and the Trustee shall execute
and
deliver such other documents prepared and delivered to it and reasonably
acceptable to it, as the Master Servicer or the related Servicer may request,
to
enable the Master Servicer to master service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Accepted
Master Servicing Practices (and the Trustee shall have no liability for misuse
of any such powers of attorney by the Master Servicer or the related Servicer
and shall be indemnified by the Master Servicer or the related Servicer, as
applicable, for any cost, liability or expense incurred by the Trustee in
connection with such Person’s use or misuse of any such power of attorney). If
the Master Servicer or the Trustee has been advised that it is likely that
the
laws of the state in which action is to be taken prohibit such action if taken
in the name of the Trustee or that the Trustee would be adversely affected
under
the “doing business” or tax laws of such state if such action is taken in its
name, the Master Servicer shall join with the Trustee in the appointment of
a
co-trustee pursuant to Section 9.10. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall
not,
except in those instances where it is taking action in the name of the Trustee,
be deemed to be the agent of the Trustee.
112
SECTION
4.06. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers
to
enforce such clauses in accordance with this Agreement or the Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with this Agreement
or
the Servicing Agreement and, as a consequence, a Mortgage Loan is assumed,
the
original Mortgagor may be released from liability in accordance with this
Agreement or the Servicing Agreement.
SECTION
4.07. Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
(a) The
Master Servicer shall transmit to the Trustee or the Custodian such documents
and instruments coming into the possession of the Master Servicer from time
to
time as are required by the terms hereof to be delivered to the Trustee or
the
Custodian. Any funds received by the Master Servicer in respect of any Mortgage
Loan or which otherwise are collected by the Master Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall be remitted
to the Securities Administrator for deposit in the Distribution Account. The
Master Servicer shall, and, subject to Section 3.20 of this Agreement or,
to the extent provided therein, the Servicing Agreement, shall cause the
Servicers to provide access to information and documentation regarding the
Mortgage Loans to the Trustee, its agents and accountants at any time upon
reasonable request and during normal business hours, and to Certificateholders
that are savings and loan associations, banks or insurance companies, the Office
of Thrift Supervision, the FDIC and the supervisory agents and examiners of
such
Office and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of
the
Office of Thrift Supervision or other regulatory authority, such access to
be
afforded without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by it.
In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be remitted to the Securities Administrator for deposit in
the
Distribution Account.
SECTION
4.08. Standard
Hazard Insurance and Flood Insurance Policies.
For
each
Mortgage Loan, the Master Servicer shall enforce the obligation of ▇▇▇▇▇ Fargo
under this Agreement and GMACM under the Servicing Agreement to maintain or
cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of this
Agreement or the Servicing Agreement. It is understood and agreed that such
insurance shall be with insurers meeting the eligibility requirements set forth
in Section 3.11 of this Agreement or the eligibility requirements set forth
in the Servicing Agreement, as applicable, 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.
113
SECTION
4.09. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall enforce each Servicer’s obligations under this Agreement
or the Servicing Agreement, as applicable, to prepare and present on behalf
of
the Trustee and the Certificateholders all claims under any insurance policies
and take such actions (including the negotiation, settlement, compromise or
enforcement of the insured’s claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to such Servicer and remitted to the Master Servicer) in respect of such
policies, bonds or contracts shall be promptly deposited in the Distribution
Account upon receipt, except that any amounts realized that are to be applied
to
the repair or restoration of the related Mortgaged Property as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable insurance policy need not be so deposited or
remitted.
SECTION
4.10. Maintenance
of Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take, or permit a Servicer to take (to the extent
such
action is prohibited by this Agreement or the Servicing Agreement), any action
that would result in noncoverage under any primary mortgage insurance policy
of
any loss which, but for the actions of the Master Servicer or the related
Servicer, as applicable, would have been covered thereunder. The Master Servicer
shall use its best reasonable efforts to cause the Servicer to keep in force
and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan
in
accordance with the provisions of this Agreement or the Servicing Agreement.
The
Master Servicer shall not, and shall not permit the Servicers to, cancel or
refuse to renew any primary mortgage insurance policy that is in effect at
the
date of the initial issuance of the Mortgage Note and is required to be kept
in
force hereunder except in accordance with the provisions of this Agreement
or
the Servicing Agreement.
(b) The
Master Servicer agrees to cause the Servicers 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.
SECTION
4.11. Trustee
to Retain Possession of Certain Insurance Policies and Documents.
The
Trustee or the Custodian, as applicable, shall retain possession and custody
of
the originals (to the extent available) of any primary mortgage insurance
policies, or certificate of insurance if applicable, and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer and the
Servicers have otherwise fulfilled their respective obligations under this
Agreement or the Servicing Agreement, as applicable, 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 and
the Custodial Agreement. The Master Servicer shall promptly deliver or cause
to
be delivered to the Trustee or the Custodian, upon the execution or receipt
thereof the originals of any primary mortgage insurance policies, any
certificates of renewal, and such other documents or instruments that constitute
Mortgage Loan Documents that come into the possession of the Master Servicer
from time to time.
114
SECTION
4.12. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause the Servicers to foreclose upon, repossess or
otherwise comparably convert the ownership of Mortgaged Properties securing
such
of the Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with this Agreement or the Servicing Agreement, as
applicable.
SECTION
4.13. Compensation
for the Master Servicer.
As
compensation for the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to the Master Servicing Fee and the income from
investment of or earnings on the funds from time to time in the Distribution
Account, as provided in Section 3.10. The compensation payable to the
Master Servicer in respect of any Distribution Date shall be reduced in
accordance with Section 4.19 of this Agreement. The Master Servicer shall
be required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as provided
in this Agreement.
SECTION
4.14. 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 related Certificateholders. The Master
Servicer shall cause the Servicers to sell, any REO Property as expeditiously
as
possible and in accordance with the provisions of this Agreement or the
Servicing Agreement, as applicable. Further, the Master Servicer shall cause
the
Servicers to sell any REO Property prior to three years after the end of the
calendar year of its acquisition by REMIC I unless (i) the Trustee shall have
been supplied by the related Servicer with an Opinion of Counsel to the effect
that the holding by the Trust Fund of such REO Property subsequent to such
three-year period will not result in the imposition of taxes on “prohibited
transactions” of any REMIC hereunder as defined in Section 860F of the Code or
cause any REMIC hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding, in which case the Trust Fund may continue to
hold
such Mortgaged Property (subject to any conditions contained in such Opinion
of
Counsel) or (ii) the related Servicer shall have applied for, prior to the
expiration of such three-year period, an extension of such three-year period
in
the manner contemplated by Section 856(e)(3) of the Code, in which case the
three-year period shall be extended by the applicable extension period. The
Master Servicer shall cause the related Servicer to protect and conserve, such
REO Property in the manner and to the extent required by this Agreement in
accordance with the REMIC Provisions and in a manner that does not result in
a
tax on “net income from foreclosure property” or cause such REO Property to fail
to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code.
115
(b) The
Master Servicer shall cause the Servicers to deposit all funds collected and
received in connection with the operation of any REO Property in the REO
Account, or in the account designated for such amounts under the Servicing
Agreement.
SECTION
4.15. Master
Servicer Annual Statement of Compliance.
(a) The
Master Servicer and the Securities Administrator shall deliver (or otherwise
make available) (and the Master Servicer and Securities Administrator shall
cause any Additional Servicer or Servicing Function Participant engaged by
it to
deliver) to the Depositor and the Securities Administrator on or before March
15
of each year, commencing in March 2008, an Officer’s Certificate stating, as to
the signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of such party’s performance under
this Agreement, or such other applicable agreement in the case of an Additional
Servicer or Servicing Function Participant, has been made under such officer’s
supervision and (B) to the best of such officer’s knowledge, based on such
review, such party has fulfilled all its obligations under this Agreement,
or
such other applicable agreement in the case of an Additional Servicer or
Servicing Function Participant, in all material respects throughout such year
or
portion thereof, or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure known to such officer
and
the nature and status thereof.
(b) The
Master Servicer shall include all annual statements of compliance received
by it
with its own annual statement of compliance to be submitted to the Securities
Administrator pursuant to this Section 4.15.
(c) In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by such parties is terminated, assigns its rights
and obligations under or resigns pursuant to the terms of this Agreement, or
any
applicable agreement in the case of a Servicing Function Participant, as the
case may be, such party shall provide an Officer’s Certificate pursuant to this
Section 4.15(c) or to such other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
(d) Failure
of the Master Servicer to comply timely with this Section 4.15 shall be
deemed a Master Servicer Event of Default, automatically, without notice and
without any cure period, and the Trustee may, in addition to whatever rights
the
Trustee may have under this Agreement and at law or in equity or to damages,
including injunctive relief and specific performance, terminate all the rights
and obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Master Servicer
for the same. This paragraph shall supersede any other provision in this
Agreement or any other agreement to the contrary.
(e) Copies
of
such Master Servicer annual statements of compliance shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at
the
Master Servicer’s expense if the Master Servicer failed to provide such copies
(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).
116
(f) Delivery
under this Section 4.15 of such reports, information and documents to the
Trustee is for informational purposes only, and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or
determinable from information contained therein, including the Master Servicer’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on an Officer’s
Certificate).
SECTION
4.16. Master
Servicer Assessments of Compliance.
(a) By
March
15 of each year, commencing in March 2008, the Master Servicer and the
Securities Administrator, each at its own expense, shall furnish, or otherwise
make available, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (A) a statement by such party
of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Relevant Servicing Criteria
to assess compliance with the Relevant Servicing Criteria, (C) such party’s
assessment of compliance with the Relevant Servicing Criteria as of and for
the
fiscal year covered by the Form 10-K required to be filed pursuant to
Section 5.06(d), 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.
(b) No
later
than the end of each fiscal year for the Trust for which a Form 10-K is required
to be filed, the Master Servicer shall forward to the Securities Administrator
and the Depositor the name of each Servicing Function Participant engaged by
it
and what Relevant Servicing Criteria will be addressed in the report on
assessment of compliance prepared by such Servicing Function Participant
(provided,
however,
that
the Master Servicer need not provide such information to the Securities
Administrator so long as the Master Servicer and the Securities Administrator
are the same Person). When the Master Servicer and the Securities Administrator
(or any Servicing Function Participant engaged by them) submit their assessments
to the Securities Administrator, such parties will also at such time include
the
assessment (and attestation pursuant to Section 4.17) of each Servicing
Function Participant engaged by it.
(c) Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator and any Servicing Function Participant
engaged by such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such party, and
(ii)
the Securities Administrator shall confirm that the assessments, taken as a
whole, address all of the Servicing Criteria and taken individually address
the
Relevant Servicing Criteria for each party as set forth on Exhibit E and notify
the Depositor of any exceptions.
117
(d) The
Master Servicer shall include all annual reports on assessment of compliance
received by it from the Servicers with its own assessment of compliance to
be
submitted to the Securities Administrator pursuant to this Section
4.16.
(e) In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by such parties is terminated, assigns its rights
and obligations under, or resigns pursuant to the terms of this Agreement,
or
any applicable agreement in the case of a Servicing Function Participant, as
the
case may be, such party shall provide a report on assessment of compliance
pursuant to this Section 4.16(e) or to such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
(f) Failure
of the Master Servicer to comply timely with this Section 4.16 shall be
deemed a Master Servicer Event of Default, automatically, without notice and
without any cure period, and the Trustee may, in addition to whatever rights
the
Trustee may have under this Agreement and at law or in equity or to damages,
including injunctive relief and specific performance, terminate all the rights
and obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Master Servicer
for the same. This paragraph shall supersede any other provision in this
Agreement or any other agreement to the contrary.
SECTION
4.17. Master
Servicer Attestation Reports.
(a) By
March
15 of each year, commencing in March 2008, the Master Servicer 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 Securities Administrator,
or
such other Servicing Function Participants, as the case may be) and that is
a
member of the American Institute of Certified Public Accountants to furnish
an
attestation report to the Securities Administrator and the Depositor, to the
effect that (i) it has obtained a representation regarding certain matters
from
the management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the 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.
(b) Promptly
after receipt of such assessment of compliance and attestation report from
the
Master Servicer, the Securities Administrator or any Servicing Function
Participant engaged by such parties, the Securities Administrator shall confirm
that each assessment submitted pursuant to Section 4.16 is coupled with an
attestation meeting the requirements of this Section and notify the
Depositor of any exceptions.
118
(c) The
Master Servicer shall include each such attestation furnished to it from the
Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section 4.17.
(d) In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by such parties is terminated, assigns its rights
and duties under, or resigns pursuant to the terms of this Agreement, or any
applicable custodial agreement or servicing or sub-servicing agreement in the
case of a Servicing Function Participant, as the case may be, such party shall
cause a registered public accounting firm to provide an attestation pursuant
to
this Section 4.17 or such other applicable agreement notwithstanding any
such termination, assignment or resignation.
(e) Failure
of the Master Servicer to comply timely with this Section 4.17 shall be
deemed a Master Servicer Event of Default, automatically, without notice and
without any cure period, and the Trustee may, in addition to whatever rights
the
Trustee may have under this Agreement and at law or in equity or to damages,
including injunctive relief and specific performance, terminate all the rights
and obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Master Servicer
for the same. This paragraph shall supersede any other provision in this
Agreement or any other agreement to the contrary.
SECTION
4.18. Annual
Certification.
Each
Form
10-K required to be filed for the Trust pursuant to Section 5.06 shall
include a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification required to be included therewith
pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Each of the Master Servicer and the
Securities Administrator shall provide, and shall cause any Servicing Function
Participant engaged by it to, provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification (the “Certifying
Person”),
by
March 15 of each year in which the Trust is subject to the reporting
requirements of the Exchange Act and otherwise within a reasonable period of
time upon request, a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit C, 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 officer of the Master Servicer in charge of the master
servicing function shall serve as the senior Certifying Person on behalf of
the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at ▇▇▇-▇▇▇-▇▇▇▇. In the
event any such party or any Servicing Function Participant engaged by such
party
is terminated, assigns its rights or duties under, or resigns pursuant to the
terms of this Agreement, or any applicable sub-servicing agreement, as the
case
may be, such party shall provide a Back-Up Certification to the Certifying
Person pursuant to this Section 4.18 with respect to the period of time it
was subject to this Agreement or any applicable sub-servicing agreement, as
the
case may be. Notwithstanding the foregoing, (i) the Master Servicer and the
Securities Administrator shall not be required to deliver a Back-Up
Certification to each other if both are the same Person and the Master Servicer
is the Certifying Person and (ii) the Master Servicer shall not be obligated
to
sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in the event that it does not receive
any
Back-Up Certification required to be furnished to it pursuant to this Section
4.18.
119
SECTION
4.19. Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
In
the
event of any Prepayment Interest Shortfalls, the Master Servicer shall deposit
into the Distribution Account not later than the related Distribution Date
an
amount equal to the lesser of (i) the aggregate amounts required to be paid
by
the Servicers with respect to Prepayment Interest Shortfalls attributable to
Principal Prepayments in full on the Mortgage Loans for the related Distribution
Date, and not so paid by the Servicers and (ii) the aggregate amount of the
compensation payable to the Master Servicer for such Distribution Date in
accordance with Section 4.13, without reimbursement therefor.
120
ARTICLE
V
PAYMENTS
TO CERTIFICATEHOLDERS
SECTION
5.01. Distributions.
(a) (1) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC I to REMIC II on account of the REMIC I Regular
Interests and distributed to the holders of the Class R Certificates (in respect
of the Class R-I Interest), as the case may be:
(i) to
Holders of each of REMIC I Regular Interest IA and REMIC I Regular Interest
I-1-A through I-100-B, pro
rata,
in an
amount equal to (A) Uncertificated Interest for such REMIC I Regular Interests
for such Distribution Date, plus (B) any amounts payable in respect thereof
remaining unpaid from previous Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
immediately above, payments of principal shall be allocated as follows: first,
to REMIC I Regular Interest IA in an amount equal to the aggregate principal
distributions actually and deemed to have been made on the Certificates other
than the Class A-1 Certificates, until the Uncertificated Balance of REMIC
I
Regular Interest IA has been reduced to zero and second, to REMIC I Regular
Interests I-1-A through I-100-B starting with the lowest numerical denomination
in an amount equal to the aggregate principal distributions actually and deemed
to have been made on the Class A-1 Certificates, until the Uncertificated
Balance of each such REMIC I Regular Interest is reduced to zero, provided
that,
for REMIC I Regular Interests with the same numerical denomination, such
payments of principal shall be allocated pro
rata
between
such REMIC I Regular Interests; and
(iii) any
remaining amount to the Holders of the Class R Certificates, in respect of
the
Class R-I Interest.
(2) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests or withdrawn from the Distribution Account and distributed to the
Holders of the Class R Certificates, in respect of the Class R-II Interest,
as
the case may be:
(i) first
to
the Holders of REMIC II Regular Interest IO, in an amount equal to (A)
Uncertificated Interest for such REMIC II Regular Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates and second, to
the
Holders of REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC
II Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular
Interest B-3, REMIC II Regular Interest B-4, REMIC II Regular Interest B-5
and
REMIC II Regular Interest B-6 pro
rata,
in an
amount equal to the amount of interest and principal distributed on the
Corresponding Certificates for such Distribution Date; and
121
(ii) any
remaining amount to the Holders of the Class R Certificates, in respect of
the
Class R-II Interest.
(b) [Reserved].
(c) On
each
Distribution Date prior to the Credit Support Depletion Date, the Available
Distribution Amount will be distributed in the following manner and order of
priority:
(i) first,
from
the Senior Interest Distribution Amount, to the Swap Account to pay any Net
Swap
Payment or Swap Termination Payment (not caused by a Swap Provider Trigger
Event) owed to the Swap Provider for such Distribution Date;
(ii) second,
concurrently, to each class of Senior Certificates, from the Senior Interest
Distribution remaining after payments pursuant to clause (i) above the Accrued
Certificate Interest with respect to each such Class on a pro rata basis, based
on the entitlement of each such Class; provided, however, if after taking into
account amounts available under the Class A Swap Agreement, there are any unpaid
Net WAC Rate Carryover Amounts payable to the Class A-1 Certificates, any
interest amounts otherwise payable to the Class A-2 Certificates pursuant to
this clause will be deposited in the Swap Account and used to pay any unpaid
Net
WAC Rate Carryover Amounts payable to the Class A-1 Certificates;
(iii) third,
concurrently, to the Senior Certificates from the Available Distribution Amount
remaining after payments pursuant to clauses (c)(i) and (c)(ii) above, the
related Senior Principal Distribution Amount, on a pro rata basis, based on
the
Certificate Principal Balance of each such Class, until the Certificate
Principal Balance of each such Class has been reduced to zero; provided,
however, if any Net Swap Payments or Swap Termination Payments, or any portion
thereof, payable to the Swap Provider pursuant to clause (c)(i) above remain
unpaid, principal payable to the Class A-2 Certificates and then principal
payable to the Class A-1 Certificates, in that order, will be reduced by the
amount of such unpaid Net Swap Payments or Swap Termination Payments and such
amounts will be deposited in the Swap Account for payment to the Swap Provider;
provided further that if there are any remaining unpaid Net WAC Rate Carryover
Amounts payable to the Class A-1 Certificates, any principal amounts otherwise
payable to the Class A-2 Certificates pursuant to this clause will be deposited
in the Swap Account and used to pay any unpaid Net WAC Rate Carryover Amounts
payable to the Class A-1 Certificates;
(iv) fourth,
from
the Available Distribution Amount remaining after payments pursuant to clauses
(c)(i) through (c)(iii), to each Class of Senior Certificates for which there
is
a Senior Interest Shortfall Amount on such Distribution Date, the related Senior
Interest Shortfall Amount on a
pro rata
basis,
based
on the entitlement of each such Class;
122
(v) fifth,
from
the Available Distribution Amount remaining after payments pursuant to clauses
(c)(i) through (c)(iv) above, to the Subordinate Certificates, on a pro rata
basis, an amount equal to their respective portions of the Subordinate Interest
Distribution Amount for such Distribution Date and their pro rata share, based
on the outstanding Certificate Principal Balance of each such Class, of the
Subordinate Principal Distribution Amount; provided, however, that on any
Distribution Date on which the Subordination Level for any Class of Subordinate
Certificates is less than the Subordination Level as of the Closing Date, the
portion of the Subordinate Principal Prepayment Amount otherwise payable to
the
Class or Classes of the Subordinate Certificates junior to such Class will
be
distributed to the most senior Class of Subordinate Certificates for which
the
Subordination Level is less than such percentage as of the Closing Date, and
to
the Class or Classes of Subordinate Certificates senior thereto, pro rata based
on the Certificate Principal Balance of each such Class;
(vi) sixth,
to the
Senior Certificates, from the Available Distribution Amount remaining after
distributions pursuant to clauses (c)(i) through (c)(v) above, by Pro Rata
Allocation, the amount of any unreimbursed Realized Losses previously allocated
to such Classes of Certificates and then to the Class B-1, Class B-2, Class
B-3,
Class B-4, Class B-5 and Class B-6 Certificates, in that order, the amount
of
any unreimbursed Realized Losses previously allocated to such Classes of
Certificates;
(vii) seventh,
to the
Swap Account, an amount equal to any Swap Termination Payments resulting from
a
Swap Provider Trigger Event owed to the Swap Provider pursuant to the Class
A
Swap Agreement; and
(viii) eighth,
to the
Class R Certificates, the remainder (which is expected to be zero), of any
of
the Available Distribution Amount remaining after distributions pursuant to
clauses (c)(i) through (c)(vii) above.
(d) On
each
Distribution Date on or after the Credit Support Depletion Date, to the extent
of the Available Distribution Amount on such Distribution Date, distributions
will be made in the following manners and order of priority:
(i) first,
from
the Senior Interest Distribution Amount, to the Swap Account to pay any Net
Swap
Payment or Swap Termination Payment (not caused by a Swap Provider Trigger
Event) owed to the Swap Provider for such Distribution Date;
(ii) second,
concurrently, to each class of Senior Certificates, from the Senior Interest
Distribution remaining after payments pursuant to clause (d)(i) above the
Accrued Certificate Interest with respect to each such Class on a pro rata
basis, based on the entitlement of each such Class; provided, however, if after
taking into account amounts available under the Class A Swap Agreement, there
are any unpaid Net WAC Rate Carryover Amounts payable to the Class A-1
Certificates, any interest amounts otherwise payable to the Class A-2
Certificates pursuant to this clause will be deposited in the Swap Account
and
used to pay any unpaid Net WAC Rate Carryover Amounts payable to the Class
A-1
Certificates;
123
(iii) third,
concurrently, to the Senior Certificates from the Available Distribution Amount
remaining after payments pursuant to clauses (d)(i) and (d)(ii) above, the
related Senior Principal Distribution Amount, on a pro rata basis, based on
the
Certificate Principal Balance of each such Class, until the Certificate
Principal Balance of each such Class has been reduced to zero; provided,
however, if any Net Swap Payments or Swap Termination Payments, or any portion
thereof, payable to the Swap Provider pursuant to clause (d)(i) above remain
unpaid, principal payable to the Class A-2 Certificates and then principal
payable to the Class A-1 Certificates, in that order, will be reduced by the
amount of such unpaid Net Swap Payments or Swap Termination Payments and such
amounts will be deposited in the Swap Account for payment to the Swap Provider;
provided further that if there are any remaining unpaid Net WAC Rate Carryover
Amounts payable to the Class A-1 Certificates, any principal amounts otherwise
payable to the Class A-2 Certificates will be deposited in the Swap Account
and
used to pay any unpaid Net WAC Rate Carryover Amounts payable to the Class
A-1
Certificates.
(iv) fourth,
from
the Available Distribution Amount remaining after payments pursuant to clauses
(d)(i) through (d)(iii), to each Class of Senior Certificates for which there
is
a Senior Interest Shortfall Amount on such Distribution Date, the related Senior
Interest Shortfall Amount, on
a pro
rata basis, based on the entitlement of each such class.
(v) fifth,
to the
Senior Certificates, from the Available Distribution Amount remaining after
distributions pursuant to clauses (d)(i) through (d)(v) above, on a pro rata
basis, based on the entitlement of each such class, the amount of any
unreimbursed Realized Losses previously allocated to the Senior
Certificates;
(vi) sixth,
to the
Swap Account, an amount equal to any Swap Termination Payment resulting from
a
Swap Provider Trigger Event owed to the Swap Provider pursuant to the Class
A
Swap Agreement; and
(vii) seventh,
to the
Class R Certificates, the remainder (which is expected to be zero), of any
of
the Available Distribution Amount remaining after distributions pursuant to
clauses (d)(i) through (d)(vii) above.
Notwithstanding
the foregoing, any amounts remitted to the Swap Account pursuant to clause
(c)(iii) or (d)(iii) above from principal otherwise distributable to the Class
A-1 Certificates will reduce the Certificate Principal Balance of the Class
A-1
Certificates. In addition, any remittances to the Swap Account or any
distributions made to the Class A-1 Certificates pursuant to clause (c)(iii)
or
(d)(iii) above from principal otherwise distributable to the Class A-2
Certificates will reduce the Certificate Principal Balance of the Class A-2
Certificates. Such amounts may be reimbursed to the Class A-1 Certificates
and
the Class A-2 Certificates from any Net Swap Payments received under the Class
A
Swap Agreement, if amounts are available for that purpose.
(e) As
described in Sections 5.01(c) and (d) above, amounts payable by the Trust to
the
Supplemental Interest Trust in respect of Net Swap Payments and Swap Termination
Payments (and to the extent not paid by the Securities Administrator from any
upfront payment received pursuant to any related replacement interest rate
swap
agreement that may be entered into by the Supplemental Interest Trust Trustee)
will be deposited into the Swap Account and distributed by the Securities
Administrator to the Swap Provider as follows:
first,
to make
any Net Swap Payment owed to the Swap Provider pursuant to the Class A Swap
Agreement for such Distribution Date;
124
second,
to make
any Swap Termination Payment not due to a Swap Provider Trigger Event owed
to
the Swap Provider pursuant to the Class A Swap Agreement (to the extent not
paid
by the Securities Administrator from any upfront payment received pursuant
to
any replacement interest rate swap agreement that may be entered into by the
Securities Administrator); and
third,
from
amounts deposited into the Swap Account pursuant to Section 5.01(c)(vii) or
(d)(vi) above, to the Swap Provider, an amount equal to any Swap Termination
Payment owed to the Swap Provider due to a Swap Provider Trigger Event pursuant
to the Class A Swap Agreement.
(f) Commencing
in September 2007 and ending on the Distribution Date prior to the Swap
Termination Date, to the extent required, any Net Swap Payment payable to the
Securities Administrator on behalf of the Supplemental Interest Trust by the
Swap Provider will be withdrawn by the Securities Administrator from amounts
on
deposit in the Swap Account and shall be distributed on the related Distribution
Date (and with respect to any payments owed to the Swap Provider, one Business
Day prior to the 25th
day of
each month) in the following order of priority:
first,
to
the
Class A-1 Certificates, the amount of any Accrued Certificate Interest on the
Class A-1 Certificates remaining unpaid after distributions of the Senior
Interest Distribution Amount on such Distribution Date pursuant to
Section 5.01(c)(ii) or (d)(ii) above;
second,
to the
Class A-1 Certificates, the amount of any unpaid Net WAC Rate Carryover Amounts
due to the Class A-1 Certificates on such Distribution Date;
third,
to the
Class A-1 Certificates, in reimbursement of any principal amounts otherwise
distributable to the Class A-1 Certificates which were used to pay Net Swap
Payments or Swap Termination Payments pursuant to Section 5.01(c)(iii) or
(d)(iii);
fourth,
to the
Class A-2 Certificates, the amount of any Accrued Certificate Interest on the
Class A-2 Certificates remaining unpaid after distributions of the Senior
Interest Distribution Amount on such Distribution Date pursuant to Section
5.01(c)(ii) or (d)(ii) above;
fifth,
to the
Class A-2 Certificates, the amount of any interest and/or principal amounts
which were otherwise payable to the Class A-2 Certificates, but remitted to
the
Swap Provider or to the Class A-1 Certificates pursuant to Section 5.01(c)(ii)
or (iii) or (d)(ii) or (iii) above; and
125
sixth,
to the
Class A-2 Certificates, any remaining amounts.
(g) On
each
Distribution Date, interest and principal amounts otherwise payable to the
Class
A-2 Certificates will be deposited into the Swap Account pursuant to clauses
5.01(c)(ii), 5.01(c)(iii), 5.01(d)(ii) and 5.01(d)(iii) above and used to pay
any unpaid Net WAC Rate Carryover Amounts payable to the Class A-1
Certificates.
(h) All
distributions made with respect to each Class of Certificates on each
Distribution Date shall be allocated pro
rata
among
the outstanding Certificates in such Class based on their respective Percentage
Interests. Payments in respect of each Class of Certificates on each
Distribution Date will be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in this
Section 5.01(h) or Section 10.01 respecting the final distribution on
such Class), based on the aggregate Percentage Interest represented by their
respective Certificates, and shall be made by wire transfer of immediately
available funds to the account of any such Holder at a bank or other entity
having appropriate facilities therefor, if such Holder shall have so notified
the Securities Administrator in writing at least five (5) Business Days prior
to
the Record Date immediately prior to such Distribution Date and is the
registered owner of Certificates having an initial aggregate Certificate
Principal Balance that is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the initial Certificate Principal Balance of such Class of
Certificates, or otherwise by check mailed by first class mail to the address
of
such Holder appearing in the Certificate Register. The final distribution on
each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office of the Securities
Administrator or such other location specified in the notice to
Certificateholders of such final distribution.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Depositor, the Servicer, the Securities Administrator or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law.
(i) The
rights of the Certificateholders to receive distributions in respect of the
Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Agreement. None of the Holders of any Class of
Certificates, the Trustee, the Servicer, the Securities Administrator or the
Master Servicer shall in any way be responsible or liable to the Holders of
any
other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(j) Except
as
otherwise provided in Section 10.01, whenever the Securities Administrator
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Securities Administrator shall,
no later than three (3) days before the related Distribution Date, mail to
each
Holder on such date of such Class of Certificates a notice to the effect
that:
|
(i)
|
the
Securities Administrator expects that the final distribution with
respect
to such Class of Certificates will be made on such Distribution Date
but
only upon presentation and surrender of such Certificates at the
office of
the Securities Administrator therein specified,
and
|
126
|
(ii)
|
no
interest shall accrue on such Certificates from and after the end
of the
related Interest Accrual Period.
|
Any
funds
not distributed to any Holder or Holders of Certificates of such Class on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust by the
Securities Administrator and credited to the account of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has
been
given pursuant to this Section 5.01(j) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Securities Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto.
If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Securities Administrator shall, directly
or through an agent, mail a final notice to the remaining non-tendering
Certificateholders concerning surrender of their Certificates but shall continue
to hold any remaining funds for the benefit of non-tendering Certificateholders.
The costs and expenses of maintaining the funds in trust and of contacting
such
Certificateholders shall be paid out of the assets remaining in such trust
fund.
If within one year after the final notice any such Certificates shall not have
been surrendered for cancellation, the Securities Administrator shall pay to
the
Depositor all such amounts, and all rights of non-tendering Certificateholders
in or to such amounts shall thereupon cease. No interest shall accrue or be
payable to any Certificateholder on any amount held in trust by the Securities
Administrator as a result of such Certificateholder’s failure to surrender its
Certificate(s) on the final Distribution Date for final payment thereof in
accordance with this Section 5.01(j). Any such amounts held in trust by the
Securities Administrator shall be held uninvested in an Eligible
Account.
(k) Notwithstanding
anything to the contrary herein, (i) in no event shall the Certificate Principal
Balance of a Class A Certificate or a Subordinate Certificate be reduced more
than once in respect of any particular amount allocated to such Certificate
in
respect of Realized Losses pursuant to Section 5.04 and (ii) in no event
shall the Uncertificated Balance of a REMIC Regular Interest be reduced more
than once in respect of any particular amount both (a) allocated to such REMIC
Regular Interest in respect of Realized Losses pursuant to Section 5.04 and
(b) distributed on such REMIC Regular Interest in reduction of the
Uncertificated Balance thereof pursuant to this Section 5.01.
127
SECTION
5.02. Statements
to Certificateholders.
On
each
Distribution Date, the Securities Administrator (based on the information set
forth in the Servicer Reports for such Distribution Date and information
provided by the Swap Provider under the Class A Swap Agreement with respect
to
payments made pursuant to the Class A Swap Agreement) shall make available
to
each Holder of the Certificates, the Servicers, the Credit Risk Manager and
the
Designated Entity, a statement as to the distributions made on such Distribution
Date setting forth:
(i) applicable
Interest Accrual Periods and general Distribution Dates;
(ii) the
total
cash flows received and the general sources thereof;
(iii) the
aggregate Servicing Fee received by the Servicers during the related Due
Period;
(iv) the
amount, if any, of other fees or expenses accrued and paid, with an
identification of the payee and the general purpose of such fees;
(v) the
amount of the related distribution to Holders of the Certificates (by Class)
allocable to principal, separately identifying (A) the aggregate amount of
any
Principal Prepayments included therein and (B) the aggregate of all scheduled
payments of principal included therein;
(vi) the
amount of such distribution to Holders of the Certificates (by Class) allocable
to interest and the portion thereof, if any, provided by the Class A Swap
Agreement;
(vii) any
Net
WAC Rate Carryover Amounts for the Class A-1 Certificates (if any);
(viii) the
aggregate amount of Advances included in the distributions on the Distribution
Date;
(ix) the
number and aggregate principal balance of any Mortgage Loans (not including
any
Liquidated Mortgage Loans as of the end of the Prepayment Period) that were
delinquent (exclusive of Mortgage Loans in foreclosure) using the “OTS” method
(1) one scheduled payment is delinquent, (2) two scheduled payments are
delinquent, (3) three scheduled payments are delinquent and (4) foreclosure
proceedings have been commenced, and loss information for the
period;
(x) the
number, aggregate principal balance, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the related
Due
Date;
(xi) with
respect to any Mortgage Loan that was liquidated during the preceding calendar
month, the loan number and Scheduled Principal Balance of, and Realized Loss
on,
such Mortgage Loan as of the end of the related Prepayment Period;
128
(xii) the
total
number and principal balance of any real estate owned, or REO Properties, as
of
the end of the related Prepayment Period;
(xiii) the
cumulative Realized Losses through the end of the preceding month;
(xiv) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the
Distribution Account for such Distribution Date;
(xv) the
Certificate Principal Balance of the related Certificates before and after
giving effect to the distribution of principal and allocation of Realized Losses
on such Distribution Date;
(xvi) the
number and Scheduled Principal Balance of all the Mortgage Loans for the
following Distribution Date;
(xvii) the
three-month rolling average of the percent equivalent of a fraction, the
numerator of which is the aggregate Scheduled Principal Balance of the Mortgage
Loans that are 60 days or more delinquent or are in bankruptcy or foreclosure
or
are REO Properties, and the denominator of which is the Scheduled Principal
Balances of all of the Mortgage Loans;
(xviii) the
Certificate Factor for each such Class of Certificates applicable to such
Distribution Date;
(xix) the
Interest Distribution Amount in respect of the Class A Certificates and the
Subordinate Certificates for such Distribution Date, and in the case of the
Class A Certificates and the Subordinate Certificates separately identifying
any
reduction thereof due to allocations of Prepayment Interest Shortfalls and
interest shortfalls including the following Realized Losses: Relief Act Interest
Shortfalls and Net WAC Rate Carryover Amounts;
(xx) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to
Section 3.22 of this Agreement, the Master Servicer pursuant to
Section 4.19 of this Agreement;
(xxi) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(xxii) the
amount of, if any, of Net Monthly Excess Cashflow or excess spread and the
application of such Net Monthly Excess Cashflow;
(xxiii) the
Pass-Through Rate for each Class of Certificates for such Distribution
Date;
(xxiv) the
amount of any Net Swap Payment payable to the Trust, any related Net Swap
Payment payable to the Swap Provider, any Swap Termination Payment payable
to
the Trust and any related Swap Termination Payment payable to the Swap Provider;
129
(xxv) the
amount of Special Hazard Coverage available to the Senior Certificates remaining
as of the close of business on the applicable Determination Date;
(xxvi) the
amount of Bankruptcy Coverage available to the Senior Certificates remaining
as
of the close of business on the applicable Determination Date; and
(xxvii) the
amount of Fraud Coverage available to the Senior Certificates remaining as
of
the close of business on the applicable Determination Date.
The
Securities Administrator will make such statement (and, at its option, any
additional files containing the same information in an alternative format)
available each month to the Certificateholders and the Rating Agencies via
the
Securities Administrator’s internet website. The Securities Administrator’s
internet website shall initially be located at http:\\▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and
assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at 1-866-846-4526. Parties that are unable
to use the above distribution options 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.
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed as a dollar amount per Single Certificate of the
relevant Class.
Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall furnish upon request to each Person who at any time during
the calendar year was a Holder of a Regular Certificate a statement containing
the information set forth in subclauses (i) through (iii) above, aggregated
for
such calendar year or applicable portion thereof during which such person was
a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time are in force.
Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall furnish upon request to each Person who at any time during
the calendar year was a Holder of a Residual Certificate a statement setting
forth the amount, if any, actually distributed with respect to the Residual
Certificates, as appropriate, aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder.
The
Securities Administrator shall, upon request, furnish to the Certificateholder
during the term of this Agreement, such periodic, special, or other reports
or
information, whether or not provided for herein, as shall be reasonable with
respect to the Certificateholder, or otherwise with respect to the purposes
of
this Agreement, all such reports or information to be provided at the expense
of
the Certificateholder, in accordance with such reasonable and explicit
instructions and directions as the Certificateholder may provide.
130
On
each
Distribution Date the Securities Administrator shall provide Bloomberg Financial
Markets, L.P. (“Bloomberg”) CUSIP level factors for each Class of Certificates
as of such Distribution Date, using a format and media mutually acceptable
to
the Securities Administrator and Bloomberg.
SECTION
5.03. Servicer
Reports; P&I Advances.
(a) No
later
than the 10th
calendar
day of each month, and if the 10th
calendar
day is not a Business Day, the immediately preceding Business Day, ▇▇▇▇▇ Fargo
shall deliver to the Master Servicer and the Securities Administrator by
telecopy or electronic mail (or by such other means as ▇▇▇▇▇ Fargo, the Master
Servicer and the Securities Administrator may agree from time to time) a
remittance report containing such information with respect to the related
Mortgage Loans and the related Distribution Date as is reasonably available
to
▇▇▇▇▇ Fargo as the Master Servicer or the Securities Administrator may
reasonably require so as to enable the Master Servicer to master service the
Mortgage Loans and oversee the servicing by ▇▇▇▇▇ Fargo and the Securities
Administrator to fulfill its obligations hereunder with respect to securities
and tax reporting. ▇▇▇▇▇ Fargo shall deliver additional reporting to the Master
Servicer and the Securities Administrator by telecopy or electronic mail (or
by
such other means as ▇▇▇▇▇ Fargo, the Master Servicer and the Securities
Administrator may agree from time to time) two (2) Business Days following
the
13th
calendar
day of each month with respect to any Mortgage Loan for which a Principal
Prepayment in full has been made.
(b) The
amount of P&I Advances to be made by ▇▇▇▇▇ Fargo on any Distribution Date
shall equal, subject to Section 5.03(d), (i) the aggregate amount of
Monthly Payments (net of the related Servicing Fees), due during the related
Due
Period in respect of the Mortgage Loans serviced by the Servicer, which Monthly
Payments were delinquent as of the close of business on the related
Determination Date and (ii) with respect to each REO Property, which was
acquired during or prior to the related Prepayment Period and as to which an
REO
Disposition did not occur during the related Prepayment Period, an amount equal
to the excess, if any, of the REO Imputed Interest on such REO Property for
the
most recently ended calendar month, over the net income from such REO Property
deposited in the Collection Account pursuant to Section 3.21 of this
Agreement for distribution on such Distribution Date; provided, however, ▇▇▇▇▇
Fargo shall not be required to make P&I Advances with respect to Relief Act
Interest Shortfalls, shortfalls due to bankruptcy proceedings, or with respect
to Prepayment Interest Shortfalls in excess of its obligations under
Section 3.22.
On
the
Servicer Remittance Date, ▇▇▇▇▇ Fargo shall remit in immediately available
funds
to the Securities Administrator for deposit in the Distribution Account an
amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the related Mortgage Loans for the related Distribution Date either
(i) from its own funds or (ii) from the Collection Account, to the extent of
any
Amounts Held For Future Distribution on deposit therein (in which case it will
cause to be made an appropriate entry in the records of the Collection Account
that Amounts Held For Future Distribution have been, as permitted by this
Section 5.03, used by ▇▇▇▇▇ Fargo in discharge of any such P&I Advance)
or (iii) in the form of any combination of (i) and (ii) aggregating the total
amount of P&I Advances to be made by the Servicer with respect to the
related Mortgage Loans. In addition, ▇▇▇▇▇ Fargo shall have the right to
reimburse itself for any outstanding P&I Advance made from its own funds
from Amounts Held for Future Distribution. Any Amounts Held For Future
Distribution used by the Servicer to make P&I Advances or to reimburse
itself for outstanding P&I Advances shall be appropriately reflected in
▇▇▇▇▇ Fargo’s records and replaced by ▇▇▇▇▇ Fargo by deposit in the Collection
Account no later than the close of business on the Servicer Remittance Date
immediately following the Due Period or Prepayment Period for which such amounts
relate. The Securities Administrator will notify ▇▇▇▇▇ Fargo and the Master
Servicer by the close of business on the Business Day prior to the Distribution
Date in the event that the amount remitted by ▇▇▇▇▇ Fargo to the Securities
Administrator on such date is less than the P&I Advances required to be made
by ▇▇▇▇▇ Fargo for the related Distribution Date.
131
(c) The
obligation of ▇▇▇▇▇ Fargo to make such P&I Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any related Mortgage Loan or REO Property, shall continue
until a Final Recovery Determination in connection therewith or the removal
thereof from the Trust Fund pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section.
(d) Notwithstanding
anything herein to the contrary, no P&I Advance or Servicing Advance shall
be required to be made hereunder by ▇▇▇▇▇ Fargo if such P&I Advance or
Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, respectively. The determination by ▇▇▇▇▇
Fargo
that it has made a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance or that any proposed P&I Advance or Servicing Advance, if made,
would constitute a Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance, respectively, shall be evidenced by a certification of a Servicing
Officer delivered to the Master Servicer.
(e) Subject
to and in accordance with Article VIII of this Agreement, in the event that
▇▇▇▇▇ Fargo fails to make a required P&I Advance, the Trustee or any other
successor Servicer will be required to make such P&I Advance on the
Distribution Date on which ▇▇▇▇▇ Fargo was required to make such P&I
Advance, subject to its determination of recoverability.
(f) The
reporting, remittance and advancing obligations of GMACM are set forth in the
Servicing Agreement.
SECTION
5.04. Allocation
of Realized Losses.
(a) Prior
to
the Determination Date, the Servicer shall determine as to each Mortgage Loan
serviced by the Servicer and any related REO Property and include in the monthly
remittance report provided to the Master Servicer and the Securities
Administrator (substantially in the form of Schedule 4 hereto) such information
as is reasonably available to the Servicer as the Master Servicer or the
Securities Administrator may reasonably require so as to enable the Master
Servicer to master service the Mortgage Loans and oversee the servicing by
the
Servicer and the Securities Administrator to fulfill its obligations hereunder
with respect to securities and tax reporting, which shall include, but not
be
limited to: (i) the total amount of Realized Losses, if any, incurred in
connection with any Final Recovery Determinations made during the related
Prepayment Period; and (ii) the respective portions of such Realized Losses
allocable to interest and allocable to principal. Prior to each Determination
Date, the Servicer shall also determine as to each Mortgage Loan: (i) the total
amount of Realized Losses, if any, incurred in connection with any Deficient
Valuations made during the related Prepayment Period; and (ii) the total amount
of Realized Losses, if any, incurred in connection with Debt Service Reductions
in respect of Monthly Payments due during the related Due Period.
132
(b) All
Realized Losses on the Mortgage Loans allocated to any REMIC Regular Interest
pursuant to Section 5.04(c) on the Mortgage Loans shall be allocated by the
Securities Administrator on each Distribution Date as follows: first,
to the
Class B-6 Certificates, until the Certificate Principal Balance of the Class
B-6
Certificates has been reduced to zero; second,
to the
Class B-5 Certificates, until the Certificate Principal Balance of the Class
B-5
Certificates has been reduced to zero; third,
to the
Class B-4 Certificates, until the Certificate Principal Balance of the Class
B-4
Certificates has been reduced to zero; fourth,
to the
Class B-3 Certificates, until the Certificate Principal Balance of the Class
B-3
Certificates has been reduced to zero, fifth,
to the
Class B-2 Certificates, until the Certificate Principal Balance of the Class
B-2
Certificates has been reduced to zero; sixth,
to the
Class B-1 Certificates, until the Certificate Principal Balance of the Class
B-1
Certificates has been reduced to zero; seventh,
to the
Class A-2 Certificates, until the Certificate Principal Balance of the Class
A-2
Certificates has been reduced to zero; and eighth,
to the
Class A-1 Certificates, until the Certificate Principal Balance of the Class
A-1
Certificates has been reduced to zero. All Realized Losses to be allocated
to
the Certificate Principal Balances of all Classes on any Distribution Date
shall
be so allocated after the actual distributions to be made on such date as
provided above. All references above to the Certificate Principal Balance of
any
Class of Certificates shall be to the Certificate Principal Balance of such
Class immediately prior to the relevant Distribution Date, before reduction
thereof by any Realized Losses, in each case to be allocated to such Class
of
Certificates, on such Distribution Date.
Excess
Losses with respect to the Mortgage Loans will be allocated to the outstanding
class or classes of Senior Certificates and Subordinate Certificates by Pro
Rata
Allocation.
As
used
herein, an allocation of a Realized Loss on a “pro
rata
basis”
among two or more specified Classes of Certificates means an allocation on
a
pro
rata
basis,
among the various Classes so specified, to each such Class of Certificates
on
the basis of their then outstanding Certificate Principal Balances prior to
giving effect to distributions to be made on such Distribution Date. All
Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the, Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
In
addition, in the event that the Servicer receives any Subsequent Recoveries
with
respect to a Mortgage Loan serviced by it, the Servicer shall deposit such
funds
into the Collection Account pursuant to Section 3.08. If, after taking into
account such Subsequent Recoveries, the amount of a Realized Loss is reduced,
the amount of such Subsequent Recoveries will be applied to increase the
Certificate Principal Balance of the Class A-1 Certificates and the Class A-2
Certificates, in that order and then applied to increase the Certificate
Principal Balance of the Class of Subordinate Certificates with the highest
payment priority to which Realized Losses have been allocated, but, in each
case, not by more than the amount of Realized Losses previously allocated to
that Class of Certificates pursuant to this Section 5.04 and not previously
reimbursed to such Class of Certificates pursuant to Section 5.01(c) or (d)
or
from Net Swap Payments received under the Swap Agreement. The amount of any
remaining Subsequent Recoveries will be applied in the same order of priority
as
described in the preceding sentence, up to the amount of such Realized Losses
previously allocated to such Class of Certificates pursuant to this Section
5.04
and not previously reimbursed to such Class of Certificates pursuant to Section
5.01(c) or (d) or from Net Swap Payments received under the Swap Agreement.
Holders of such Certificates will not be entitled to any payment in respect
of
current interest on the amount of such increases for any Interest Accrual Period
preceding the Distribution Date on which such increase occurs. Any such
increases shall be applied to the Certificate Principal Balance of each
Certificate of such Class in accordance with its respective Percentage
Interest.
133
(c)
(i) Realized
Losses on the Mortgage Loans shall be deemed to have been allocated first,
to
REMIC I Regular Interest IA in an amount equal to the aggregate Realized Losses
allocated to the Certificates other than the Class A-1 Certificates until the
Uncertificated Balance of REMIC I Regular Interest IA has been reduced to zero
and second, to REMIC I Regular Interest I-1-A through REMIC I Regular Interest
I-100-B, starting with the lowest numerical denomination until each such REMIC
I
Regular Interest has been reduced to zero, provided that, for REMIC I Regular
Interests with the same numerical denomination, such Realized Losses shall
be
allocated pro
rata
between
such REMIC I Regular Interests.
(ii) All
Realized Losses on the Mortgage Loans shall be allocated by the Securities
Administrator on each Distribution Date to the following REMIC II Regular
Interests as follows: to the Holders of REMIC II Regular Interest A-1, REMIC
II
Regular Interest A-2, REMIC II Regular Interest B-1, REMIC II Regular Interest
B-2, REMIC II Regular Interest B-3, REMIC II Regular Interest B-4, REMIC II
Regular Interest B-5 and REMIC II Regular Interest B-6, in an amount equal
to
the amount of Realized Losses allocated to the Corresponding Certificates for
such Distribution Date.
SECTION
5.05. Compliance
with Withholding Requirements.
Notwithstanding
any other provision of this Agreement, the Securities Administrator shall comply
with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Securities
Administrator reasonably believes are applicable under the Code. The consent
of
Certificateholders shall not be required for such withholding. In the event
the
Securities Administrator does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant
to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholders.
SECTION
5.06. Reports
Filed with Securities and Exchange Commission.
(a) (i) Within
fifteen (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 any Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act. The Securities Administrator shall
file each Form 10-D with a copy of the related Monthly Statement attached
thereto. Any disclosure in addition to the Monthly Statement that is required
to
be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be reported
by the parties set forth on Exhibit G to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except as set forth in the next paragraph.
134
(ii) As
set
forth on Exhibit G hereto, within five (5) calendar days after the related
Distribution Date, (A) certain parties to the MortgageIT Securities Corp.
Mortgage Loan Trust, Series 2007-2 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, or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 10-D Disclosure, if applicable, together
with an Additional Disclosure Notification in the form of Exhibit H hereto
(an “Additional Disclosure Notification”) 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 Depositor 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 Depositor (provided that such
Form
10-D includes any Additional Form 10-D Disclosure). Within two (2) Business
Days
after receipt of such copy, but no later than the 12th calendar day after the
Distribution Date, the Depositor shall notify the Securities Administrator
in
writing (which may be furnished electronically) of any changes to or approval
of
such Form 10-D. In the absence of receipt of any written changes or approval
by
the due date specified herein, or if the Depositor does not request a copy
of a
Form 10-D, the Securities Administrator shall be entitled to assume that such
Form 10-D is in final form and the Securities Administrator may proceed with
the
execution and filing of the Form 10-D. A duly authorized representative of
the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 5.06(c)(ii).
Promptly (but no later than one (1) Business Day) after filing with the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D filed by the Securities
Administrator. Each party to this Agreement acknowledges that the performance
by
the Securities Administrator and the Master Servicer of their duties under
this
Section 5.06(a) related to the timely preparation, execution and filing of
Form 10-D is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties as set forth in this Agreement.
Neither the Securities Administrator nor the Master Servicer shall have any
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare, execute and/or timely file such Form 10-D,
where such failure results from the Securities Administrator’s inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
135
(b)
(i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, the Securities Administrator shall prepare and file on behalf of
the
Trust a Form 8-K, as required by the Exchange Act, provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K other than the initial
Form 8K (“Form 8-K Disclosure Information”) shall be reported by the parties set
forth on Exhibit G to the Depositor and the Securities Administrator and
directed and approved by the Depositor pursuant to the following paragraph,
and
the Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information or any
Form 8-K, except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit G hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than the close of business New York City
time on the second Business Day after the occurrence of a Reportable Event
(i)
the parties to the MortgageIT Securities Corp. Mortgage Loan Trust, Series
2007-2 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, or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any Form
8-K
Disclosure Information, if applicable, together with an Additional Disclosure
Notification, and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information. The Depositor will be responsible for any reasonable fees and
expenses assessed or incurred by the Securities Administrator in connection
with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 8-K to the Depositor. Promptly, but
no
later than the close of business on the third Business Day after the Reportable
Event, the Depositor shall notify the Securities Administrator in writing (which
may be furnished electronically) of any changes to or approval of such Form
8-K.
In the absence of receipt of any written changes or approval by the third
Business Day, or if the Depositor does not request a copy of a Form 8-K, the
Securities Administrator shall be entitled to assume that such Form 8-K is
in
final form and the Securities Administrator may proceed with the execution
and
filing of the Form 8-K. A duly authorized representative of the Master Servicer
shall sign each Form 8-K. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator
will
follow the procedures set forth in Section 5.06(c)(ii). Promptly (but no
later than 1 Business Day) after filing with the Commission, the Securities
Administrator will, make available on its internet website a final executed
copy
of each Form 8-K that has been prepared and filed by the Securities
Administrator. The parties to this Agreement acknowledge that the performance
by
the Master Servicer and the Securities Administrator of their duties under
this
Section 5.06(b) related to the timely preparation, execution and filing of
Form 8-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Agreement. Neither
the
Master Servicer nor the Securities Administrator shall have any liability for
any loss, expense, damage, claim arising out of or with respect to any failure
to properly prepare, execute and/or timely file such Form 8-K, where such
failure results from the Securities Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto needed
to prepare, execute or arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
136
(c)
(i) On
or
prior to January 30th of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 suspension notification relating to the automatic suspension
of reporting in respect of the Trust under the Exchange Act.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly electronically notify the Depositor. In the case of Form 10-D and
10-K,
the parties to this Agreement will cooperate to prepare and file a Form 12b-25
and a 10-DA and 10-KA, 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
and such amendment includes any Additional Form 10-D Disclosure (other than
for
the purposes of restating any Monthly Report), any Additional Form 10-K
Disclosure or any Form 8-K Disclosure Information or any amendment to such
disclosure, the Securities Administrator will electronically notify the
Depositor only if the amendment pertains to an additional reporting item being
revised and/or amended on such form, but not if an amendment is being filed
as a
result of a Remittance Report revision, and the Depositor will cooperate with
the Securities Administrator in preparing any necessary 8-KA, 10-DA or 10-KA.
Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be
signed by a duly authorized representative or senior officer in charge of master
servicing, as applicable, of the Master Servicer. The parties to this Agreement
acknowledge that the performance by the Securities Administrator and the Master
Servicer of their duties under this Section 5.06(c) related to the timely
preparation, execution and filing of Form 15, a Form 12b-25 or any amendment
to
Form 8-K, 10-D or 10-K is contingent upon each such party performing its duties
under this Agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K,
10-D or 10-K, where such failure results from the Securities Administrator’s
inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, execute or 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.
(d)
(i) On
or
prior to the 90th day after the end of each fiscal year of the Trust or such
earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”)
(it being understood that the fiscal year for the Trust ends on December 31st
of
each year), commencing in March 2008, the Securities Administrator shall prepare
and file on behalf of the Trust a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items,
in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, the Servicing
Agreement and Custodial Agreement, (i) an annual compliance statement for each
Servicer, each Additional Servicer, the Master Servicer, the Securities
Administrator and any Servicing Function Participant engaged by such parties
(together with the Custodian, each, a “Reporting Servicer”) as described under
Section 3.17 and Section 4.15 and in such other agreements, (ii)(A)
the annual reports on assessment of compliance with servicing criteria for
each
Reporting Servicer, as described under Section 3.18 and Section 4.16
and in such other agreements, and (B) if each Reporting Servicer’s report on
assessment of compliance with servicing criteria described under
Section 3.18 and Section 4.16 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
each
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 3.18 and Section 4.16 or the Servicing
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,
(iii)(A) the registered public accounting firm attestation report for each
Reporting Servicer, as described under Section 3.18 and Section 4.17
or such other agreement, and (B) if any registered public accounting firm
attestation report described under Section 3.18 and Section 4.17 or
the Servicing Agreement identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any such registered
public accounting firm attestation report is not included as an exhibit to
such
Form 10-K, disclosure that such report is not included and an explanation why
such report is not included, and (iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as
described in Section 3.19 and Section 4.18 or the Servicing Agreement
(provided, however, that the Securities Administrator, at its discretion, may
omit from the Form 10-K any annual compliance statement, assessment of
compliance or attestation report that is not required to be filed with such
Form
10-K pursuant to Regulation AB). Any disclosure or information in addition
to
(i) through (iv) above that is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”) shall be reported by the parties set forth on Exhibit G
to the Depositor and the Securities Administrator and directed and approved
by
the Depositor pursuant to the following paragraph, and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth
in
the next paragraph.
137
(ii) As
set
forth on Exhibit G hereto, no later than March 15 of each year that the Trust
is
subject to the Exchange Act reporting requirements, commencing in 2008, (i)
the
parties to the MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2
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, or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification, and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Depositor 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, upon request,
forward electronically a copy of the Form 10-K to the Depositor. Within three
(3) Business Days after receipt of such copy, but in no event later than March
25th of each year that the Trust is subject to Exchange Act reporting
requirements, the Depositor shall notify the Securities Administrator in writing
(which may be furnished electronically) of any changes to or approval of such
Form 10-K. In the absence of receipt of any written changes or approval by
March
25th, or if the Depositor does not request a copy of a Form 10-K, the Securities
Administrator shall be entitled to assume that such Form 10-K is in final form
and the Securities Administrator may proceed with the execution and filing
of
the Form 10-K. A senior officer of the Master Servicer in charge of the master
servicing function shall sign the Form 10-K. If a Form 10-K cannot be filed
on
time or if a previously filed Form 10-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 5.06(c)(ii).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website a
final
executed copy of each Form 10-K filed by the Securities Administrator. The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of their respective duties under
this
Section 5.06(d) related to the timely preparation, execution and filing of
Form 10-K is contingent upon such parties (and any Additional Servicer or
Servicing Function Participant) strictly observing all applicable deadlines
in
the performance of their duties under this Section 5.06(d),
Section 3.17, Section 3.18, Section 3.19, Section 4.16,
Section 4.17 and Section 4.18. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 10-K, where such failure results from
the
Securities Administrator’s inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence, bad
faith or willful misconduct.
138
(e) Each
of
Form 10-D and Form 10-K requires the registrant to indicate (by checking “yes”
or “no”) that it “(1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.” The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that
it
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Securities Administrator in writing, no later than the fifth
calendar day after the related Distribution Date with respect to the filing
of a
report on Form 10-D and no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the question
should be “no” as a result of filings that relate to other securitization
transactions of the Depositor for which the Securities Administrator does not
have the obligation to prepare and file Exchange Act reports.
(f) The
Securities Administrator shall indemnify and hold harmless the Depositor, the
Trustee and their respective officers, directors and Affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses arising
out
of or based upon a breach of the Master Servicer’s obligations under this
Section 5.06 or the Master Servicer’s negligence, bad faith or willful
misconduct in connection therewith.
139
SECTION
5.07. Supplemental
Interest Trust.
(a) On
the
Closing Date, the Securities Administrator shall establish and maintain in
the
name of the Trustee a separate account for the benefit of the holders of the
Class
A
Certificates (the
“Supplemental Interest Trust”). The Supplemental Interest Trust shall be an
Eligible Account, and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other moneys, including, without
limitation, other moneys of the Trustee or of the Securities Administrator
held
pursuant to this Agreement.
(b) On
the
Business Day prior to each Distribution Date, the Securities Administrator
shall
deposit into the Supplemental Interest Trust amounts distributable to the Swap
Provider by the Supplemental Interest Trust pursuant to Section 5.01(c)(i),
(c)(iii), (c)(vii), (d)(i), (d)(iii) or (d)(vii) of this Agreement and shall
distribute such amounts on the Business Day prior to such Distribution Date
in
accordance with the foregoing sections.
(c) On
the
Business Day prior to each Distribution Date, the Securities Administrator
shall
deposit into the Supplemental Interest Trust amounts received by it from the
Swap Provider or pursuant to Section 5.01(c)(ii), (c)(iii), (d)(ii) or
(d)(iii) and shall distribute from the Supplemental Interest Trust on the
Distribution Date an amount equal to the amount of any Net Swap Payment received
from the Swap Provider under the Class A Swap Agreement in the order of priority
set forth in Section 5.01.
(d) The
Supplemental Interest Trust constitutes an “outside reserve fund” within the
meaning of Treasury Regulation § 1.860G-2(h) and is not an asset of any REMIC.
The Holders of the Class A-2 Certificates shall be the beneficial owner of
the
Supplemental Interest Trust, subject to the power of the Securities
Administrator to transfer amounts under this Agreement. The Securities
Administrator shall keep records that accurately reflect the funds on deposit
in
the Supplemental Interest Trust. The Securities Administrator shall, at the
written direction of the majority of the Class A-2 Certificateholders, invest
amounts on deposit in the Supplemental Interest Trust in Permitted Investments.
In the absence of written direction to the Securities Administrator from the
majority of the Class A-2 Certificateholders, all funds in the Supplemental
Interest Trust shall remain uninvested. On each Distribution Date, the
Securities Administrator shall distribute, not in respect of any REMIC, any
interest earned on the Supplemental Interest Trust to the Holders of the Class
A-2 Certificates.
(e) For
federal income tax purposes, amounts paid to the Supplemental Interest Trust
on
each Distribution Date pursuant to Section 5.01(c)(i), (c)(vii), (d)(i) or
(d)(vii) shall first be deemed paid to the Supplemental Interest Trust in
respect of the Class IO Interest to the extent of the amount distributable
on
such Class IO Interest on such Distribution Date, and any remaining amount
shall
be deemed paid to the Supplemental Interest Trust in respect of a Class IO
Distribution Amount. 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
A-2 Certificates unless and until the date when either (a) there is more than
one Class A-2 Certificateholder or (b) any Class of Certificates in addition
to
the Class A-2 Certificates is recharacterized as an equity interest in the
Supplemental Interest Trust for federal income tax purposes, in which case
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 treated
as
a partnership. The Securities Administrator shall not be required to prepare
and
file partnership tax returns in respect of such partnership unless it receives
additional reasonable compensation (not to exceed $10,000 per year) for the
preparation of such filings, written notification recognizing the creation
of a
partnership agreement or comparable documentation evidencing the
partnership.
140
(f) The
Securities Administrator shall treat the Holders of Certificates (other than
the
Residual Certificates) as having entered into a notional principal contract
with
respect to the Holders of the Class A-2 Certificates. Pursuant to each such
notional principal contract, all Holders of Certificates (other than the
Residual Certificates) shall be treated as having agreed to pay, on each
Distribution Date, to the Holder of the Class A-2 Certificates an aggregate
amount equal to the excess, if any, of (i) the amount payable on such
Distribution Date on the REMIC III Regular Interest ownership of which is
represented by such Class of Certificates over (ii) the amount payable on such
Class of Certificates on such Distribution Date (such excess, a “Class IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro rata among such Certificates based on the
amount of interest otherwise payable to such Certificates, and a Class IO
Distribution Amount payable from principal collections shall be allocated to
the
most subordinate Class of such Certificates with an outstanding principal
balance to the extent of such balance. In addition, pursuant to such notional
principal contract, the Holder of the Class A-2 Certificates shall be treated
as
having agreed to pay Net WAC Rate Carryover Amounts to the Holders of the Class
A-1 Certificates in accordance with the terms of this Agreement. Any payments
to
such Class A-1 Certificates from amounts deemed received in respect of this
notional principal contract 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 (other than the Residual Certificates) of
a
Class IO Distribution Amount shall be treated for tax purposes as having been
received by the Holders of such Certificates in respect of the REMIC III Regular
Interest ownership of which is represented by such Certificates, and as having
been paid by such Holders to the Supplemental Interest Trust pursuant to the
notional principal contract. Thus, each Certificate (other than the Residual
Certificates) shall be treated as representing not only ownership of a Regular
Interest in REMIC III, but also ownership of an interest in, and obligations
with respect to, a notional principal contract.
(g) For
federal tax return and information reporting, the right of the holders of Class
A Certificates to receive payments from the Supplemental Interest Trust in
respect of any Net WAC Rate Carryover Amount shall be assigned a value of
$4,045,000.
(h) Upon
a
Swap Early Termination, the Securities Administrator on behalf of the
Supplemental Interest Trust, at the direction of the Depositor, will use
reasonable efforts to appoint a successor swap provider to enter into a new
interest rate swap agreement on terms substantially similar to the Class A
Swap
Agreement, with a successor swap provider meeting all applicable eligibility
requirements. If the Securities Administrator receives a Swap Termination
Payment from the Swap Provider in connection with such Swap Early Termination,
the Securities Administrator will apply such Swap Termination Payment to any
upfront payment required to appoint the successor swap provider. If the
Securities Administrator is required to pay a Swap Termination Payment to the
Swap Provider in connection with such Swap Early Termination, the Securities
Administrator will apply any upfront payment received from the successor swap
provider to pay such Swap Termination Payment.
141
If
the
Securities Administrator is unable to appoint a successor swap provider within
thirty (30) days of the Swap Early Termination, then the Securities
Administrator will deposit any Swap Termination Payment received from the
original Swap Provider into a separate, non-interest bearing reserve account
and
will, on each subsequent Distribution Date, withdraw from the amount then
remaining on deposit in such reserve account an amount equal to the Net Swap
Payment, if any, that would have been paid to the Securities Administrator
by
the original Swap Provider calculated in accordance with the terms of the
original Class A Swap Agreement, and distribute such amount in accordance with
the terms of this Agreement.
(i) In
the
event that the Swap Provider fails to perform any of its obligations under
the
Class A Swap Agreement (including, without limitation, its obligation to make
any payment or transfer collateral), or breaches any of its representations
and
warranties thereunder, or in the event that an Event of Default, Termination
Event, or Additional Termination Event (each as defined in the Class A Swap
Agreement) occurs with respect to the Class A Swap Agreement, the Securities
Administrator on behalf of the Supplemental Interest Trust Trustee shall
immediately, but no later than the next Business Day following such failure
or
breach, notify the Depositor and send any notices and make any demands, on
behalf of the Supplemental Interest Trust, required to enforce the rights of
the
Supplemental Interest Trust under the Swap Agreement.
(j) In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to the Class A Swap Agreement (such guaranty the “Guaranty”
and such third party the “Guarantor”), then to the extent that the Swap Provider
fails to make any payment by the close of business on the day it is required
to
make payment under the terms of the Class A Swap Agreement, the Securities
Administrator on behalf of the Supplemental Interest Trust Trustee shall, as
soon as practicable, but no later than two (2) business days after the Swap
Provider’s failure to pay, demand that the Guarantor make any and all payments
then required to be made by the Guarantor pursuant to such Guaranty; provided,
that the Securities Administrator shall in no event be liable for any failure
or
delay in the performance by the Swap Provider or any Guarantor of its
obligations hereunder or pursuant to the Class A Swap Agreement and the
Guaranty, nor for any special, indirect or consequential loss or damage of
any
kind whatsoever (including but not limited to lost profits) in connection
therewith.
SECTION
5.08. Tax
Treatment of Swap Payments and Swap Termination Payments.
For
federal income tax purposes, each holder of a Certificate (other than the
Residual Certificate) is deemed to own an undivided beneficial ownership
interest in a REMIC regular interest and an obligation to make payments to
the
Supplemental Interest Trust. In addition, (i) each holder of a Class A-1
Certificate has the right to receive payments in respect of Net WAC Rate
Carryover Amounts and (ii) each holder of a Class A-2 Certificate is deemed
to
(a) own the Supplemental Interest Trust and (c) have written one or more
notional principal contracts. For federal income tax purposes, the Securities
Administrator will account for payments to each Class A Certificate as follow:
each Class A Certificate will be treated as receiving its entire payment from
REMIC III (regardless of any Swap Termination Payment or obligation under the
Swap Agreement) and subsequently paying its portion of any Swap Termination
Payment in respect of each such Class’s obligation under the Swap Agreement. In
the event that any such Class is resecuritized in a REMIC, the obligation under
the Class A Swap Agreement to pay any such Swap Termination Payment (or any
shortfall in Net Swap Payment), will be made by one or more of the REMIC Regular
Interests issued by the resecuritization REMIC subsequent to such REMIC Regular
Interest receiving its full payment from any such Publicly Offered Certificate.
142
The
REMIC
Regular Interest corresponding to a Class A Certificate will be entitled to
receive interest and principal payments at the times and in the amounts equal
to
those made on the certificate to which it corresponds, except that (i) any
Swap
Termination Payment will be treated as being payable from amounts otherwise
payable to the Class A-2 Certificates and (ii) all amounts otherwise
distributable in respect of principal and interest of a Class A Certificate
which were remitted to the Swap Provider and, in the Case of the Class A-2
Certificates, to the Class A-1 Certificates in respect of Net WAC Rate Carryover
Amounts as described in Section 5.01 shall be treated as first having been
distributed on the REMIC Regular Interest in REMIC III and then remitted to
either the Swap Provider or the Class A-1 Certificates in respect of Net WAC
Rate Carryover Amounts.
As
a
result of the foregoing, the amount of distributions and taxable income on
the
REMIC Regular Interest corresponding to a Certificate (other than the Residual
Certificate) may exceed the actual amount of distributions on such
Certificate.
SECTION
5.09. Swap
Collateral Account.
The
Securities Administrator is hereby directed to perform the obligations of the
Custodian as defined under the Class A Swap Credit Support Annex (the “Swap
Custodian”).
On
or
before the Closing Date, the Swap Custodian shall establish a Swap Collateral
Account. The Swap Collateral Account shall be held in the name of the Swap
Custodian in trust for the benefit of the Class
A
Certificates. The Swap Collateral Account shall be an Eligible Account and
shall
be entitled “Swap Collateral Account, ▇▇▇▇▇ Fargo Bank, National Association for
the benefit of holders of MortgageIT Securities Corp. Mortgage Loan Trust,
Series 2007-2, Mortgage Pass-Through Certificates.”
The
Swap
Custodian shall credit to the Swap Collateral Account all collateral (whether
in
the form of cash or securities) posted by the Swap Provider to secure the
obligations of the Swap Provider in accordance with the terms of the Class
A
Swap Agreement. Except for investment earnings, the Swap Provider shall not
have
any legal, equitable or beneficial interest in the Swap Collateral Account
other
than in accordance with the Class A Swap Agreement and applicable law. The
Swap
Custodian shall maintain and apply all collateral and earnings thereon on
deposit in the Swap Collateral Account in accordance with Class A Swap Credit
Support Annex.
Cash
collateral posted by the Swap Provider in accordance with the Class A Swap
Credit Support Annex shall be invested at the direction of the Swap Provider
in
Permitted Investments in accordance with the requirements of the Class A Swap
Credit Support Annex. If no investment direction is provided, such amounts
shall
remain uninvested. All amounts earned on amounts on deposit in the Swap
Collateral Account (whether cash collateral or securities) shall be for the
account of and taxable to the Swap Provider.
143
Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Swap Agreement) with respect to the Swap Provider or upon occurrence or
designation of an Early Termination Date (as defined in the Class A Swap
Agreement) as a result of any such Event of Default or Specified Condition
with
respect to the Swap Provider, and, in either such case, unless the Swap Provider
has paid in full all of its Obligations (as defined in the Swap Credit Support
Annex) that are then due, then any collateral posted by the Swap Provider in
accordance with the Class A Swap Credit Support Annex shall be applied to the
payment of any Obligations due to Party B (as defined in the Swap Agreement)
in
accordance with the Swap Credit Support Annex. To the extent the Swap Custodian
is required to return any of the Posted Collateral to the Swap Provider under
the terms of the Class A Swap Credit Support Annex, the Swap Provider shall
return such collateral in accordance with the terms of the Class A Swap Credit
Support Annex.
144
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01. The
Certificates.
(a) The
Certificates in the aggregate will represent the entire beneficial ownership
interest in the Mortgage Loans and all other assets included in REMIC I, REMIC
II and REMIC III.
The
Certificates will be substantially in the forms annexed hereto as Exhibits
A-1
through A-3. The Certificates of each Class will be issuable in registered
form
only, in denominations of authorized Percentage Interests as described in the
definition thereof. Each Certificate will share ratably in all rights of the
related Class.
Upon
original issue, the Certificates shall be executed and authenticated by the
Securities Administrator and delivered by the Trustee to and upon the written
order of the Depositor. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trust by the Securities Administrator
by an
authorized signatory. Certificates bearing the manual or facsimile signatures
of
individuals who were at any time the proper officers of the Securities
Administrator shall bind the Trust, notwithstanding that such individuals or
any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. 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 herein
executed by the Securities Administrator by manual signature, and such
certificate of authentication 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.
(b) The
Class
A Certificates and the Subordinate Certificates shall initially be issued as
one
or more Certificates held by the Book-Entry Custodian or, if appointed to hold
such Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below, registration
of
such Certificates may not be transferred by the Securities Administrator except
to another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to definitive, fully registered Certificates
(“Definitive Certificates”) in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in
the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents
or
of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures. The Securities Administrator is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance herewith and in accordance with the agreement that it has with the
Depository authorizing it to act as such. The Book-Entry Custodian may, and,
if
it is no longer qualified to act as such, the Book-Entry Custodian shall,
appoint, by a written instrument delivered to the Depositor, the Servicers
and,
if the Trustee is not the Book-Entry Custodian, the Trustee, any other transfer
agent (including the Depository or any successor Depository) to act as
Book-Entry Custodian under such conditions as the predecessor Book-Entry
Custodian and the Depository or any successor Depository may prescribe, provided
that the predecessor Book-Entry Custodian shall not be relieved of any of its
duties or responsibilities by reason of any such appointment of other than
the
Depository. If the Securities Administrator resigns or is removed in accordance
with the terms hereof, the successor Securities Administrator or, if it so
elects, the Depository shall immediately succeed to its predecessor’s duties as
Book-Entry Custodian. The Depositor shall have the right to inspect, and to
obtain copies of, any Certificates held as Book-Entry Certificates by the
Book-Entry Custodian.
145
(c) The
Trustee, the Servicers, the Securities Administrator, the Master Servicer and
the Depositor may for all purposes (including the making of payments due on
the
Book-Entry Certificates and Global Certificates) deal with the Depository as
the
authorized representative of the Certificate Owners with respect to the
Book-Entry Certificates and Global Certificates for the purposes of exercising
the rights of Certificateholders hereunder. The rights of Certificate Owners
with respect to the Book-Entry Certificates and Global Certificates shall be
limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of the Book-Entry Certificates and Global Certificates
with
respect to any particular matter shall not be deemed inconsistent if they are
made with respect to different Certificate Owners. The Securities Administrator
may establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
If
(i)(A)
the Depositor advises the Securities Administrator in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (B) the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its option advises the Securities
Administrator in writing that it elects to terminate the book-entry system
through the Depository or (iii) after the occurrence of a Servicer Event of
Default, Certificate Owners representing in the aggregate not less than 51%
of
the Ownership Interests of the Book-Entry Certificates advise the Securities
Administrator through the Depository, in writing, that the continuation of
a
book-entry system through the Depository is no longer in the best interests
of
the Certificate Owners, the Securities Administrator shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to Certificate Owners
requesting the same. With respect to a Global Certificate, the related
Certificate Owner may request that its interest in a Global Certificate be
exchanged for a Definitive Certificate. Upon surrender to the Securities
Administrator of the Book-Entry Certificates by the Book-Entry Custodian or
the
Depository, as applicable, or the Global Certificates by the Depository
accompanied by registration instructions from the Depository for registration
of
transfer, the Securities Administrator shall cause the Definitive Certificates
to be issued. Such Definitive Certificates will be issued in minimum
denominations of $10,000 except that any beneficial ownership that was
represented by a Book-Entry Certificate, or a Global Certificate, as applicable
in an amount less than $10,000 immediately prior to the issuance of a Definitive
Certificate shall be issued in a minimum denomination equal to the amount
represented by such Book-Entry Certificate or a Global Certificate, as
applicable. None of the Depositor, the Servicer, the Master Servicer, the
Securities Administrator or the Trustee shall be liable for any delay in the
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 Depository shall be deemed to be imposed upon and performed
by
the Securities Administrator, to the extent applicable with respect to such
Definitive Certificates, and the Securities Administrator shall recognize the
Holders of the Definitive Certificates as Certificateholders
hereunder.
146
SECTION
6.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Securities Administrator shall cause to be kept at one of the offices or
agencies to be appointed by the Securities Administrator in accordance with
the
provisions of Section 9.11 of this Agreement, a Certificate Register for
the Certificates in which, subject to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration
of
Certificates and of transfers and exchanges of Certificates as herein
provided.
(b) No
transfer of any Residual Certificate shall be made unless that transfer is
made
pursuant to an effective registration statement under the Securities Act, and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification.
In
the
event that such a transfer of a Residual Certificate is to be made without
registration or qualification (other than in connection with the initial
transfer of any such Certificate by the Depositor), the Securities Administrator
shall require receipt of: (i) if such transfer is purportedly being made in
reliance upon Rule 144A under the Securities Act, written certifications from
the Certificateholder desiring to effect the transfer and from such
Certificateholder’s prospective transferee, substantially in the form attached
hereto as Exhibit B-1; (ii) if such transfer is purportedly being made in
reliance upon Rule 501(a) under the Securities Act, written certifications
from
the Certificateholder desiring to effect the transfer and from such
Certificateholder’s prospective transferee, substantially in the form attached
hereto as Exhibit B-3, and (iv) in all other cases, an Opinion of Counsel
satisfactory to the Securities Administrator that such transfer may be made
without such registration or qualification (which Opinion of Counsel shall
not
be an expense of the Trust Fund or of the Depositor, the Trustee, the Master
Servicer, the Securities Administrator or the Servicers), together with copies
of the written certification(s) of the Certificateholder desiring to effect
the
transfer and/or such Certificateholder’s prospective transferee upon which such
Opinion of Counsel is based, if any.
Neither
of the Depositor nor the Securities Administrator is obligated to register
or
qualify any such Certificates under the Securities Act or any other securities
laws or to take any action not otherwise required under this Agreement to permit
the transfer of such Certificates without registration or qualification. Any
Certificateholder desiring to effect the transfer of any such Certificate shall,
and does hereby agree to, indemnify the Trustee, the Depositor, the Master
Servicer, the Securities Administrator and the Servicers against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(c) No
transfer of a Residual Certificate or any interest therein shall be made to
any
Plan, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person acquiring such Certificates with “Plan Assets” of a Plan within the
meaning of the Department of Labor regulation promulgated at 29 C.F.R. §
2510.3-101 as modified by Section 3(42) of ERISA (“Plan Assets”) unless the
Securities Administrator is provided with an Opinion of Counsel on which the
Depositor, the Master Servicer, the Securities Administrator, the Trustee and
the Servicers may rely, which establishes to the satisfaction of the Securities
Administrator that the purchase of such Certificates is permissible under
applicable law, will not constitute or result in any prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Depositor,
the Servicers, the Trustee, the Master Servicer, the Securities Administrator
or
the Trust Fund to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, any Servicer, the Trustee, the Master Servicer, the Securities
Administrator, the Trust Fund. An Opinion of Counsel will not be required in
connection with the initial transfer of any such Certificate by the Depositor
to
an affiliate of the Depositor (in which case, the Depositor or any affiliate
thereof shall have deemed to have represented that such affiliate is not a
Plan
or a Person investing Plan Assets) and the Securities Administrator shall be
entitled to conclusively rely upon a representation (which, upon the request
of
the Securities Administrator, shall be a written representation) from the
Depositor of the status of such transferee as an affiliate of the
Depositor.
147
For
so
long as the Supplemental Interest Trust is in existence, each beneficial owner
of an Publicly Offered Certificate,
Privately Offered Certificate or
any
interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of the Publicly Offered Certificate, Privately Offered
Certificate or interest therein, that either (i) it is not a Plan or (ii)(A)
it
is an accredited investor within the meaning of Prohibited Transaction Exemption
2007-05, as amended from time to time (the “Exemption”), and (B) the acquisition
and holding of such Certificate and the separate right to receive payments
from
the Supplemental Interest Trust are eligible for the exemptive relief available
under Prohibited Transaction Class Exemption (“PTCE”) 95-60 or, except in the
case of a Privately Offered Certificate, PTCE 84-14, 91-38, 90-1 or
96-23.
Each
Transferee of a Subordinate Certificate or any interest therein that is acquired
after the termination of the Supplemental Interest Trust will be deemed to
have
represented by virtue of its purchase or holding of such Certificate (or
interest therein) that either (a) such Transferee is not a Plan or purchasing
such Certificate with Plan Assets, (b) for aPublicly Offered Subordinate
Certificate, it has acquired and is holding such Certificate in reliance on
the
Exemption and that it understands that there are certain conditions to the
availability of the Exemption including that such Certificate must be rated,
at
the time of purchase, not lower than “BBB-” (or its equivalent) by a one or more
of ▇▇▇▇▇’▇, S&P, ▇▇▇▇▇ Ratings, Dominion Bond Rating Service Limited (known
as DBRS Limited) or DBRS, Inc or (c) the following conditions are satisfied:
(i)
such Transferee is an insurance company, (ii) the source of funds used to
purchase or hold such Certificate (or interest therein) is an “insurance company
general account” (as defined in PTCE 95-60, and (iii) the conditions set forth
in Sections I and III of PTCE 95-60 have been satisfied.
If
any
Certificate or any interest therein is acquired or held in violation of the
conditions described in this Section 6.02(c), 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 any certificate
or
interest therein was effected in violation of the conditions described in this
Section 6.02(c) shall indemnify and hold harmless the Depositor, the
Trustee, the Servicers, the Master Servicer, the Securities Administrator and
the Trust Fund from and against any and all liabilities, claims, costs or
expenses incurred by those parties as a result of that acquisition or
holding.
148
(d)
(is)
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
authorized the Securities Administrator or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute
all
instruments of Transfer and to do all other things necessary in connection
with
any such sale. The rights of each Person acquiring any Ownership Interest in
a
Residual Certificate are expressly subject to the following
provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Securities Administrator shall require delivery to it, and
shall not register the Transfer of any Residual Certificate until its receipt
of, an affidavit and agreement (a “Transfer Affidavit and Agreement,” in the
form attached hereto as Exhibit B-3) from the proposed Transferee, in form
and
substance satisfactory to the Securities Administrator, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual Certificate
that
is the subject of the proposed Transfer as a nominee, trustee or agent for
any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of this
Section 6.02(d) and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if an authorized officer of the Securities Administrator
who is assigned to this transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Residual Certificate and (Y) not to transfer its Ownership Interest unless
it
provides a Transferor Affidavit (in the form attached hereto as Exhibit B-3)
to
the Securities Administrator stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
149
(E) Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the
Securities Administrator written notice that it is a “pass-through interest
holder” within the meaning of temporary Treasury regulation
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a “pass-through interest
holder.”
(ii) The
Securities Administrator will register the Transfer of any Residual Certificate
only if it shall have received the Transfer Affidavit and Agreement and all
of
such other documents as shall have been reasonably required by the Securities
Administrator as a condition to such registration. In addition, no Transfer
of a
Residual Certificate shall be made unless the Securities Administrator shall
have received a representation letter from the Transferee of such Certificate
to
the effect that such Transferee is a Permitted Transferee.
(iii) (A)
If
any purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 6.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights as holder thereof retroactive to the date of registration
of
such 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 6.02(d)
or for making any payments due on such Certificate to the holder thereof or
for
taking any other action with respect to such holder under the provisions of
this
Agreement.
(B) If
any
purported Transferee shall become a holder of a Residual Certificate in
violation of the restrictions in this Section 6.02(d) and to the extent
that the retroactive restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Securities Administrator shall have the right, without
notice to the holder or any prior holder of such Residual Certificate, to sell
such Residual Certificate to a purchaser selected by the Securities
Administrator on such terms as the Securities Administrator may choose. Such
purported Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the Securities Administrator.
Such purchaser may be the Securities Administrator itself or any Affiliate
of
the Securities Administrator. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Securities Administrator or its
Affiliates), expenses and taxes due, if any, will be remitted by the Securities
Administrator to such purported Transferee. The terms and conditions of any
sale
under this clause (iii)(B) shall be determined in the sole discretion of the
Securities Administrator, and the Securities Administrator shall not be liable
to any Person having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
150
(iv) The
Securities Administrator shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all information necessary
to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of
such Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds an
Ownership Interest in a Residual Certificate having as among its record holders
at any time any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be charged or collected by
the
Securities Administrator.
(v) The
provisions of this Section 6.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Securities Administrator at the expense of the party seeking
to
modify, add to or eliminate any such provision the following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Securities
Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any Trust REMIC to cease to
qualify as a REMIC and will not cause any Trust REMIC, as the case may be,
to be
subject to an entity-level tax caused by the Transfer of any Residual
Certificate to a Person that is not a Permitted Transferee or a Person other
than the prospective transferee to be subject to a REMIC-tax caused by the
Transfer of a Residual Certificate to a Person that is not a Permitted
Transferee.
(e) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Securities Administrator maintained
for such purpose pursuant to Section 9.11 of this Agreement, the Securities
Administrator shall execute, authenticate and deliver, in the name of the
designated Transferee or Transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
(f) At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with authorized denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Securities Administrator maintained
for
such purpose pursuant to Section 9.11 of this Agreement. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate and deliver, the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for transfer or exchange shall (if so required by the Securities
Administrator) be duly endorsed by, or be accompanied by a written instrument
of
transfer in the form satisfactory to the Securities Administrator duly executed
by, the Holder thereof or his attorney duly authorized in writing. In addition,
with respect to each Class R Certificate, the holder thereof may exchange,
in
the manner described above, such Class R Certificate for three separate
certificates, each representing such holder's respective Percentage Interest
in
the Class R-I Interest, the Class R-II Interest and the Class R-III Interest,
respectively, in each case that was evidenced by the Class R Certificate being
exchanged.
151
(g) [Reserved].
(h) No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(i) All
Certificates surrendered for transfer and exchange shall be canceled and
destroyed by the Securities Administrator in accordance with its customary
procedures.
SECTION
6.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Securities Administrator, or
the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof,
and
(ii) there is delivered to the Securities Administrator such security or
indemnity as may be required by it to save it harmless, then, in the absence
of
actual knowledge by the Securities Administrator that such Certificate has
been
acquired by a protected purchaser, the Securities Administrator, shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class
and
of like denomination and Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator) connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the applicable REMIC created
hereunder, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION
6.04. Persons
Deemed Owners.
The
Depositor, the Servicers, the Trustee, the Master Servicer, the Securities
Administrator and any agent of any of them may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 5.01 and for all other
purposes whatsoever, and none of the Depositor, the Servicers, the Trustee,
the
Master Servicer, the Securities Administrator or any agent of any of them shall
be affected by notice to the contrary.
152
SECTION
6.05. Certain
Available Information.
On
or
prior to the date of the first sale of any Residual Certificate to an
Independent third party, the Depositor shall provide to the Securities
Administrator ten copies of any private placement memorandum or other disclosure
document used by the Depositor in connection with the offer and sale of such
Certificate. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Securities Administrator, the Depositor promptly shall inform
the
Securities Administrator of such event and shall deliver to the Securities
Administrator ten copies of the private placement memorandum or disclosure
document, as revised, amended or supplemented. The Securities Administrator
shall maintain at its office as set forth in Section 12.05 hereof and shall
make available free of charge during normal business hours for review by any
Holder of a Certificate or any Person identified to the Securities Administrator
as a prospective transferee of a Certificate, originals or copies of the
following items: (i) in the case of a Holder or prospective transferee of a
Residual Certificate, the related private placement memorandum or other
disclosure document relating to such Class of Certificates, in the form most
recently provided to the Securities Administrator; and (ii) in all cases, (A)
this Agreement and any amendments hereof entered into pursuant to
Section 12.01 of this Agreement, (B) all monthly statements required to be
delivered to Certificateholders of the relevant Class pursuant to
Section 5.02 of this Agreement since the Closing Date, and all other
notices, reports, statements and written communications delivered to the
Certificateholders of the relevant Class pursuant to this Agreement since the
Closing Date and (C) any copies of all Officers’ Certificates of a Servicer
since the Closing Date delivered to the Master Servicer to evidence such
Person’s determination that any P&I Advance or Servicing Advance was, or if
made, would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance. Copies and mailing of any and all of the foregoing items will be
available from the Securities Administrator upon request at the expense of
the
Person requesting the same.
153
ARTICLE
VII
THE
DEPOSITOR, THE SERVICER AND THE MASTER SERVICER
SECTION
7.01. Liability
of the Depositor, the Servicer and the Master Servicer.
The
Depositor, the Servicer and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement upon them in their respective capacities as Depositor, the
Servicer and Master Servicer and undertaken hereunder by the Depositor, the
Servicer and the Master Servicer herein. References to the Servicer in this
Article VII (other than with respect to Sections 7.08, 7.09, 7.10 and 7.11)
shall be deemed to refer to ▇▇▇▇▇ Fargo.
SECTION
7.02. Merger
or
Consolidation of the Depositor, the Servicer or the Master Servicer.
Subject
to the following paragraph, the Depositor will keep in full effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation. Subject to the following paragraph, the
Servicer will keep in full effect its existence, rights and franchises as a
national banking association. Subject to the following paragraph, the Master
Servicer will keep in full effect its existence, rights and franchises as a
national banking association. The Depositor, the Servicer and the Master
Servicer each will obtain and preserve its qualification to do business as
a
foreign entity in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
The
Depositor, the Servicer or the Master Servicer may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets
to
any Person, in which case any Person resulting from any merger or consolidation
to which the Depositor, the Servicer or the Master Servicer shall be a party,
or
any Person succeeding to the business of the Depositor, the Servicer or the
Master Servicer, shall be the successor of the Depositor, the Servicer or the
Master Servicer, as the case may be, hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that any
successor to the Servicer or the Master Servicer shall meet the eligibility
requirements set forth in clauses (i) and (iii) of the last paragraph of
Section 8.02(a) or Section 7.06 of this Agreement.
SECTION
7.03. Limitation
on Liability of the Depositor, the Servicer, the Master Servicer and
Others.
None
of
the Depositor, the Servicer, the Securities Administrator, the Master Servicer
or any of the directors, officers, employees or agents of the Depositor, the
Servicer or the Master Servicer shall be under any liability to the Trust Fund
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
Depositor, the Servicer, the Securities Administrator, the Master Servicer
or
any such person against any breach of warranties, representations or covenants
made herein or against any specific liability imposed on any such Person
pursuant hereto or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Depositor, the Servicer, the Securities Administrator, the Master
Servicer and any director, officer, employee or agent of the Depositor, the
Servicer, the Securities Administrator and the Master Servicer may rely in
good
faith on any document of any kind which, prima facie, is properly executed
and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Servicer, the Securities Administrator, the Master Servicer and any
director, officer, employee or agent of the Depositor, the Servicer, the
Securities Administrator or the Master Servicer shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred
in
connection with any legal action relating to this Agreement, the Servicing
Agreement, the Certificates or any Credit Risk Management Agreement or any
loss,
liability or expense incurred other than by reason of willful misfeasance,
bad
faith or gross negligence in the performance of duties hereunder or by reason
of
reckless disregard of obligations and duties hereunder. None of the Depositor,
the Servicer, the Securities Administrator or the Master Servicer shall be
under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, in its
opinion, does not involve it in any expense or liability; provided, however,
that each of the Depositor, the Servicer, the Securities Administrator and
the
Master Servicer may in its discretion undertake any such action which it may
deem necessary or desirable with respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom (except any loss, liability or expense incurred
by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder) shall be expenses, costs and liabilities of the Trust Fund, and
the
Depositor, the Servicer, the Securities Administrator and the Master Servicer
shall be entitled to be reimbursed therefor from the Collection Account or
the
Distribution Account as and to the extent provided in Article III and Article
IV
of this Agreement, any such right of reimbursement being prior to the rights
of
the Certificateholders to receive any amount in the Collection Account and
the
Distribution Account.
154
Notwithstanding
anything to the contrary contained herein, the Servicer shall not be liable
for
any actions or inactions prior to the Cut-off Date of any prior servicer of
the
Mortgage Loans and the Master Servicer shall not be liable for any action or
inaction of the Servicers, except to the extent expressly provided herein,
or
the Credit Risk Management Agreements.
SECTION
7.04. Limitation
on Resignation of the Servicer.
(a) Except
as
expressly provided herein, the Servicer shall neither assign all or
substantially all of its rights under this Agreement or the servicing hereunder
nor delegate all or substantially all of its duties hereunder nor sell or
otherwise dispose of all or substantially all of its property or assets without,
in each case, the prior written consent of the Master Servicer, which consent
shall not be unreasonably withheld; provided, that in each case, 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 or sale or disposition
of
assets will not result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates. Notwithstanding the foregoing,
the Servicer, without the consent of the Trustee or the Master Servicer, may
retain third-party contractors to perform certain servicing and loan
administration functions, including without limitation hazard insurance
administration, tax payment and administration, flood certification and
administration, collection services and similar functions, provided, however,
that the retention of such contractors by the Servicer shall not limit the
obligation of the Servicer to service the related Mortgage Loans pursuant to
the
terms and conditions of this Agreement. The Servicer shall not resign from
the
obligations and duties hereby imposed on it except (i) upon determination that
its duties hereunder are no longer permissible under applicable law, or (ii)
upon the Servicer’s written proposal of a successor servicer reasonably
acceptable to each of the Sponsor, the Depositor and the Master Servicer. No
such resignation under clause (i) above shall become effective unless evidenced
by an Opinion of Counsel to such effect obtained at the expense of the Servicer
and delivered to the Trustee and the Rating Agencies. No such resignation of
the
Servicer under clause (ii) shall be effective unless:
(i) the
proposed successor servicer is (1) an affiliate of the Master Servicer that
services mortgage loans similar to the Mortgage Loans in the jurisdictions
in
which the related Mortgaged Properties are located or (2) the proposed successor
servicer has a rating of at least “Above Average” by S&P and either a rating
of at least “RPS2” by Fitch or a rating of at least “SQ2” by
▇▇▇▇▇’▇;
155
(ii) the
Rating Agencies have confirmed to the Trustee that the appointment of the
proposed successor servicer as the servicer under this Agreement will not result
in the reduction or withdrawal of the then current ratings of any of the
Certificates; and
(iii) the
proposed successor servicer has a net worth of at least
$25,000,000.
Notwithstanding
anything to the contrary, no resignation of the Servicer shall become effective
until the Master Servicer or a successor servicer shall have assumed the
Servicer’s responsibilities, duties, liabilities (other than those liabilities
arising prior to the appointment of such successor) and obligations under this
Agreement. In addition, the Sponsor shall
promptly inform the Credit Risk Manager of the Servicer’s resignation under this
Section 7.04.
(b) Except
as
expressly provided herein, the Servicer shall not assign or transfer any of
its
rights, benefits or privileges hereunder to any other Person, or delegate to
or
subcontract with, or authorize or appoint any other Person to perform any of
the
duties, covenants or obligations to be performed by the Servicer hereunder.
The
foregoing prohibition on assignment shall not prohibit the Servicer from
designating a Sub-Servicer as payee of any indemnification amount payable to
the
Servicer hereunder; provided, however, that as provided in Section 3.02 of
this Agreement, no Sub-Servicer shall be a third-party beneficiary hereunder
and
the parties hereto shall not be required to recognize any Sub-Servicer as an
indemnitee under this Agreement.
156
SECTION
7.05. Limitation
on Resignation of the Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination pursuant to the
preceding sentence permitting the resignation of the Master Servicer shall
be
evidenced by an Opinion of Counsel to such effect obtained at the expense of
the
Master Servicer and delivered to the Trustee and the Rating Agencies. No
resignation of the Master Servicer shall become effective until the Trustee
or a
successor Master Servicer meeting the criteria specified in Section 7.06 of
this Agreement shall have assumed the Master Servicer’s responsibilities,
duties, liabilities (other than those liabilities arising prior to the
appointment of such successor) and obligations under this
Agreement.
SECTION
7.06. Assignment
of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in its entirety as Master Servicer under this Agreement; provided,
however, that: (i) the purchaser or transferee accept in writing such assignment
and delegation and assume the obligations of the Master Servicer hereunder
(a)
shall have a net worth of not less than $25,000,000 (unless otherwise approved
by each Rating Agency pursuant to clause (ii) below); (b) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the Trustee);
and (c) shall execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by it as master servicer
under this Agreement, any custodial agreement from and after the effective
date
of such agreement; (ii) each Rating Agency shall be given prior written notice
of the identity of the proposed successor to the Master Servicer and each Rating
Agency’s rating of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter
to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning and selling the master servicing shall deliver to
the
Trustee an Officer’s Certificate and an Opinion of Independent counsel, each
stating that all conditions precedent to such action under this Agreement have
been completed and such action is permitted by and complies with the terms
of
this Agreement. No such assignment or delegation shall affect any liability
of
the Master Servicer arising out of acts or omissions prior to the effective
date
thereof.
SECTION
7.07. Rights
of
the Depositor in Respect of the Servicer and the Master Servicer.
Each
of
the Master Servicer and the Servicer shall afford (and any Sub-Servicing or
Sub-Contracting Agreement shall provide that each Sub-Servicer or Subcontractor,
as applicable, shall afford) the Depositor and the Trustee, upon reasonable
notice, during normal business hours, access to all records maintained by the
Master Servicer or the Servicer (and any such Sub-Servicer or Subcontractor,
as
applicable) in respect of the Servicer’s rights and obligations hereunder and
access to officers of the Master Servicer or the Servicer (and those of any
such
Sub-Servicer or Subcontractor, as applicable) responsible for such obligations,
and the Master Servicer shall have access to all such records maintained by
the
Servicer and any Sub-Servicers or Subcontractors. Upon request, each of the
Master Servicer and the Servicer shall furnish to the Depositor and the Trustee
its (and any such Sub-Servicer’s or Subcontractor’s) most recent financial
statements and such other information relating to the Master Servicer’s or the
Servicer’s capacity to perform its obligations under this Agreement as it
possesses (and that any such Sub-Servicer or Subcontractor possesses). To the
extent that the Master Servicer or the Servicer informs the Depositor and the
Trustee that such information is not otherwise available to the public, the
Depositor and the Trustee shall not disseminate any information obtained
pursuant to the preceding two sentences without the Master Servicer’s or the
Servicer’s written consent, except as required pursuant to this Agreement or to
the extent that it is appropriate to do so (i) to its legal counsel, auditors,
taxing authorities or other governmental agencies and the Certificateholders,
(ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction
or
decree of any court or governmental authority having jurisdiction over the
Depositor and the Trustee or the Trust Fund, and in any case, the Depositor
or
the Trustee, (iii) disclosure of any and all information that is or becomes
publicly known, or information obtained by the Trustee from sources other than
the Depositor, the Servicer or the Master Servicer, (iv) disclosure as required
pursuant to this Agreement or (v) disclosure of any and all information (A)
in
any preliminary or final offering circular, registration statement or contract
or other document pertaining to the transactions contemplated by the Agreement
approved in advance by the Depositor, the Servicer or the Master Servicer or
(B)
to any affiliate, independent or internal auditor, agent, employee or attorney
of the Trustee having a need to know the same, provided that the Trustee advises
such recipient of the confidential nature of the information being disclosed,
shall use its best efforts to assure the confidentiality of any such
disseminated non-public information. Nothing in this Section 7.07 shall
limit the obligation of the Servicer to comply with any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Servicer to provide access as provided in this Section 7.07 as a
result of such obligation shall not constitute a breach of this Section. Nothing
in this Section 7.07 shall require the Servicer to collect, create, collate
or otherwise generate any information that it does not generate in its usual
course of business. The Servicer shall not be required to make copies of or
ship
documents to any party unless provisions have been made for the reimbursement
of
the costs thereof. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer or the Servicer under this Agreement, and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer or the Servicer under this
Agreement, or exercise the rights of the Master Servicer or the Servicer under
this Agreement; provided that neither the Master Servicer nor the Servicer
shall
be relieved of any of its obligations under this Agreement by virtue of such
performance by the Depositor or its designee. The Depositor shall not have
any
responsibility or liability for any action or failure to act by the Master
Servicer or the Servicer and is not obligated to supervise the performance
of
the Master Servicer or the Servicer under this Agreement or
otherwise.
157
SECTION
7.08. Duties
of
the 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.
Such
reports and recommendations will be based upon information provided to the
Credit Risk Manager pursuant to the Credit Risk Management Agreements, and
the
Credit Risk Manager shall look solely to the Servicer and/or Master Servicer
for
all information and data (including loss and delinquency information and data)
relating to the servicing of the related Mortgage Loans. Upon any termination
of
the Credit Risk Manager or the appointment of a successor Credit Risk Manager,
the Depositor shall give written notice thereof to the Servicer, the Master
Servicer, the Securities Administrator, the Trustee, and each Rating Agency.
Notwithstanding the foregoing, the termination of the Credit Risk Manager
pursuant to this Section shall not become effective until the appointment
of a successor Credit Risk Manager. The Trustee is hereby authorized to enter
into any Credit Risk Management Agreement necessary to effect the
foregoing.
158
SECTION
7.09. Limitation
Upon Liability of the Credit Risk Manager.
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents shall be under any liability to the Trustee, the Certificateholders,
or
the Depositor for any action taken or for refraining from the taking of any
action made in good faith pursuant to this Agreement, in reliance upon
information provided by the Servicer under the related Credit Risk Management
Agreement, 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 or bad faith
in
its performance of its duties. 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 Servicer pursuant to the related
Credit Risk Management Agreement in the performance of its duties thereunder
and
hereunder.
SECTION
7.10. Removal
of the Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66 2/3% of the Voting Rights in the Trust Fund, in the
exercise of its or their sole discretion. The Certificateholders shall provide
written notice of the Credit Risk Manager’s removal to the Trustee. Upon receipt
of such notice, the Trustee shall provide written notice to the Credit Risk
Manager of its removal, which shall be effective upon receipt of such notice
by
the Credit Risk Manager, with a copy to the Securities Administrator and the
Master Servicer.
SECTION
7.11. Transfer
of Servicing by Sponsor to a Special Servicer.
With
respect to any Mortgage Loan which becomes ninety (90) or more days delinquent
after the Closing Date, the Sponsor may, at its option, transfer the servicing
responsibilities of ▇▇▇▇▇ Fargo or GMACM under this Agreement or the Servicing
Agreement, as applicable, with respect to such Mortgage Loan to a special
servicer which is qualified to service mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, with prior
consent of the Master Servicer, which consent shall not be unreasonably
withheld.
No such
servicing transfer shall become effective unless and until a successor to such
Servicer shall have been appointed to service and administer the related
Mortgage Loans pursuant to a special servicing agreement acceptable to the
Depositor, the Master Servicer, the Trustee and the Rating Agencies rating
the
Certificates. No appointment shall be effective unless (i) such special servicer
meets the Minimum Servicing Requirements and (ii) all amounts reimbursable
to
the related Servicer pursuant to the terms of this Agreement or the Servicing
Agreement, as applicable, shall have
159
been
paid
to such Servicer by the special servicer including without limitation, all
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances and Servicing Advances made by the related
Servicer relating to such Mortgage Loan and all out-of-pocket expenses of the
related Servicer incurred in connection with the transfer of servicing to such
special servicer, all accrued and unpaid Servicing Fees relating to such
Mortgage Loan. The Sponsor shall provide a copy of the agreement executed by
the
special servicer to the Trustee and the Master Servicer. If the proposed special
servicer does not meet the Minimum Servicing Requirements, the Sponsor shall
be
required to obtain written confirmation from the Rating Agencies that such
appointment will not result in a downgrade, qualification or withdrawal of
the
then current rating of the Publicly Offered Certificates. The Sponsor shall
notify the Credit Risk Manager of any transfer of servicing pursuant to this
Section 7.11. In
the
event that a special servicer is appointed to service any delinquent Mortgage
Loans serviced by ▇▇▇▇▇ Fargo, the Sponsor shall pay ▇▇▇▇▇ Fargo a termination
fee in an amount set forth in a side letter between ▇▇▇▇▇ Fargo and the
Sponsor.
160
ARTICLE
VIII
DEFAULT
SECTION
8.01. Servicer
Events of Default.
(a) “Servicer
Event of Default,” wherever used herein, means with respect to the Servicer any
one of the following events:
(i) any
failure by the Servicer to remit to the Securities Administrator for
distribution to the Certificateholders any payment (other than a P&I Advance
required to be made from its own funds on any Servicer Remittance Date pursuant
to Section 5.03 of this Agreement) required to be made by the Servicer
under the terms of the Certificates and this Agreement which continues
unremedied until 12:00 p.m. New York time on the Business Day immediately
following the date upon which written notice of such failure, requiring the
same
to be remedied, shall have been given to the Servicer by the Securities
Administrator, the Trustee or the Master Servicer (in which case notice shall
be
provided by telecopy), or to the Servicer, the Securities Administrator, the
Trustee and the Master Servicer by the Holders of Certificates entitled to
at
least 25% of the Voting Rights; or
(ii) any
failure on the part of the Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement, or the material breach by the Servicer of any
representation and warranty contained in Section 2.05 of this Agreement,
which continues unremedied for a period of thirty (30) days after the date
on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Depositor or the Trustee or to the
Servicer, the Depositor and the Trustee by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, that in the case of
a
failure that cannot be cured within thirty (30) days, the cure period may be
extended for an additional thirty (30) days if the Servicer can demonstrate
to
the reasonable satisfaction of the Trustee that the Servicer is diligently
pursuing remedial action; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed
for a
period of ninety (90) days; or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
161
(v) the
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;
(vi) failure
by the Servicer to duly perform, within the required time period, its
obligations under Sections 3.17, 3.18 or 3.19; or
(vii) any
failure of the Servicer to make any P&I Advance on any Servicer Remittance
Date required to be made from its own funds pursuant to Section 5.03 which
continues unremedied until 3:00 p.m. New York time on the Business Day
immediately following the Servicer Remittance Date; or
(viii) failure
of the Servicer to maintain at least an “average” rating from the Rating
Agencies.
A
“Servicer Event of Default” whenever used herein means, with respect to GMACM,
an event of default by GMACM under the Servicing Agreement.
If
a
Servicer Event of Default described in clauses (i) through (vi) or (viii) of
this Section or a corresponding Servicer Event of Default under the Servicing
Agreement shall occur, then, and in each and every such case, so long as such
Servicer Event of Default shall not have been remedied, the Depositor or the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of Voting Rights, the Trustee shall, by notice in
writing to the defaulting Servicer (and to the Depositor if given by the Trustee
or to the Trustee if given by the Depositor) with a copy to the Master Servicer
and each Rating Agency, terminate all of the rights and obligations of the
defaulting Servicer in its capacity as a Servicer under this Agreement to the
extent permitted by law, and in and to the related Mortgage Loans and the
proceeds thereof. If a Servicer Event of Default described in clause (vii)
hereof or the corresponding Servicer Event of Default under the Servicing
Agreement shall occur, the Trustee shall, by notice in writing to the defaulting
Servicer, the Depositor and the Master Servicer, terminate all of the rights
and
obligations of the defaulting Servicer in its capacity as a Servicer under
this
Agreement and in and to the related Mortgage Loans and the proceeds thereof.
Subject to Section 8.02 of this Agreement, on or after the receipt by the
defaulting Servicer of such written notice, all authority and power of the
defaulting Servicer under this Agreement or the Servicing Agreement, as
applicable, whether with respect to the Certificates (other than as a Holder
of
any Certificate) or the related Mortgage Loans or otherwise, shall pass to
and
be vested in the Master Servicer or, with respect to a default by ▇▇▇▇▇ Fargo,
the Trustee, pursuant to and under this Section, and, without limitation, the
Master Servicer or the Trustee, as applicable, is hereby authorized and
empowered, as attorney-in-fact or otherwise, to execute and deliver, on behalf
of and at the expense of the defaulting Servicer, 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 related Mortgage
Loans and related documents, or otherwise. The defaulting Servicer agrees
promptly (and in any event no later than ten (10) Business Days subsequent
to
such notice) to provide the Master Servicer or the Trustee, as applicable,
with
all documents and records requested by it to enable it to assume such Servicer’s
functions under this Agreement, and to cooperate with the Master Servicer,
or
with respect to ▇▇▇▇▇ Fargo, the Trustee, in effecting the termination of the
defaulting Servicer’s responsibilities and rights under this Agreement,
including, without limitation, the transfer within one (1) Business Day to
the
Master Servicer or other successor Servicer for administration by it of all
cash
amounts which at the time shall be or should have been credited by the
defaulting Servicer to the related Collection Account held by or on behalf
of
such Servicer or thereafter be received with respect to the related Mortgage
Loans or any related REO Property (provided, however, that the defaulting
Servicer shall continue to be entitled to receive all amounts accrued or owing
to it under this Agreement or the Servicing Agreement, as applicable, on or
prior to the date of such termination, whether in respect of P&I Advances,
Servicing Advances, accrued and unpaid Servicing Fees or otherwise, and shall
continue to be entitled to the benefits of Section 7.03 of this Agreement,
notwithstanding any such termination, with respect to events occurring prior
to
such termination). Reimbursement of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, Servicing
Advances and accrued and unpaid Servicing Fees shall be made on a first in,
first out (“FIFO”) basis no later than the defaulting Servicer Remittance Date.
For purposes of this Section 8.01(a), the Trustee shall not be deemed to have
knowledge of a Servicer Event of Default unless a Responsible Officer of the
Trustee assigned to and working in the Trustee’s Corporate Trust Office has
actual knowledge thereof or unless written notice of any event which is in
fact
such a Servicer Event of Default is received by the Trustee at its Corporate
Trust Office and such notice references the Certificates, the Trust or this
Agreement. The Trustee shall promptly notify the Master Servicer and the Rating
Agencies of the occurrence of a Servicer Event of Default of which it has
knowledge as provided above.
162
The
Master Servicer or, with respect to a Servicer Event of Default by ▇▇▇▇▇ Fargo,
the Trustee, shall be entitled to be reimbursed by the defaulting Servicer
(or
from amounts on deposit in the Distribution Account if the defaulting Servicer
is unable to fulfill its obligations hereunder) for all reasonable out-of-pocket
or third party costs associated with the transfer of servicing from the
defaulting Servicer, including without limitation, any reasonable out-of-pocket
or third party 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 or the Trustee, as applicable,
to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Master Servicer or the Trustee, as applicable, to service the
Mortgage Loans properly and effectively, upon presentation of reasonable
documentation of such costs and expenses.
(b) “Master
Servicer Event of Default,” wherever used herein, means any one of the following
events:
(i) 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, or the breach by the Master
Servicer of any representation and warranty contained in Section 2.04,
which continues unremedied for a period of 30 days after the date on which
written notice of such failure, or as otherwise set forth in this Agreement
requiring the same to be remedied, shall have been given to the Master Servicer
by the Depositor or the Trustee or to the Master Servicer, the Depositor and
the
Trustee by the Holders of Certificates entitled to at least 25% of the Voting
Rights; or
163
(ii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, 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 ninety (90) days; or
(iii) 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 or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
(iv) 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
(v) failure
by the Master Servicer to duly perform, within the required time period, its
obligations under Sections 4.15, 4.16, 4.17 or 4.18.
If
a
Master Servicer Event of Default shall occur, then, and in each and every such
case, so long as such Master Servicer Event of Default shall not have been
remedied, the Depositor or the Trustee may, and at the written direction of
the
Holders of Certificates entitled to at least 51% of Voting Rights, the Trustee
shall, by notice in writing to the Master Servicer (and to the Depositor if
given by the Trustee or to the Trustee if given by the Depositor) with a copy
to
each Rating Agency, terminate all of the rights and obligations of the Master
Servicer in its capacity as Master Servicer under this Agreement, to the extent
permitted by law, 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 under this Agreement, whether with
respect to the Certificates (other than as a Holder of any Certificate) or
the
Mortgage Loans or otherwise including, without limitation, the compensation
payable to the Master Servicer under this Agreement, shall pass to and be vested
in the Trustee pursuant to and under this Section, and, without limitation,
the
Trustee is hereby authorized and empowered, as attorney-in-fact or otherwise,
to
execute and deliver, on behalf of and at the expense of the Master Servicer,
any
and all documents and other instruments and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees promptly (and in any event no later than ten Business Days subsequent
to
such notice) to provide the Trustee with all documents and records requested
by
it to enable it to assume the Master Servicer’s functions under this Agreement,
and to cooperate with the Trustee in effecting the termination of the Master
Servicer’s responsibilities and rights under this Agreement (provided, however,
that the Master Servicer shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination and shall continue to be entitled to the benefits of
Section 7.03 of this Agreement, notwithstanding any such termination, with
respect to events occurring prior to such termination). For purposes of this
Section 8.01(b), the Trustee shall not be deemed to have knowledge of a
Master Servicer Event of Default unless a Responsible Officer of the Trustee
assigned to and working in the Trustee’s Corporate Trust Office has actual
knowledge thereof or unless written notice of any event which is in fact such
a
Master Servicer Event of Default is received by the Trustee and such notice
references the Certificates, the Trust or this Agreement. The Trustee shall
promptly notify the Rating Agencies of the occurrence of a Master Servicer
Event
of Default of which it has knowledge as provided above.
164
On
and
after the time the Master Servicer receives a notice of termination, the Trustee
shall be the successor in all respects to the Master Servicer (and, if
applicable, the Securities Administrator) in its capacity as Master Servicer
(and, if applicable, the Securities Administrator) under this Agreement and
the
transactions set forth or provided for herein, and all the responsibilities,
duties and liabilities relating thereto and arising thereafter shall be assumed
by the Trustee (except for any representations or warranties of the Master
Servicer under this Agreement, the responsibilities, duties and liabilities
contained in Section 2.03 and the obligation to deposit amounts in respect
of losses pursuant to Section 3.10) by the terms and provisions hereof
including, without limitation, the Master Servicer’s obligations to make P&I
Advances no later than each Distribution Date pursuant to Section 5.03;
provided, however, that if the Trustee is prohibited by law or regulation from
obligating itself to make advances regarding delinquent mortgage loans, then
the
Trustee shall not be obligated to make P&I Advances pursuant to
Section 5.03; and provided further, that any failure to perform such duties
or responsibilities caused by the Master Servicer’s failure to provide
information required by Section 8.01 shall not be considered a default by
the Trustee as successor to the Master Servicer hereunder and neither the
Trustee nor any other successor master servicer shall be liable for any acts
or
omissions of the terminated master servicer. As compensation therefor, the
Trustee shall be entitled to the Master Servicing Fee and all funds relating
to
the Mortgage Loans, investment earnings on the Distribution Account and all
other remuneration to which the Master Servicer would have been entitled if
it
had continued to act hereunder.
Notwithstanding
the foregoing, the Trustee may, if it shall be unwilling to continue to 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 $25,000,000 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 a master servicer.
To
the
extent that the costs and expenses of the Trustee related to the termination
of
the Master Servicer, appointment of a successor Master Servicer or the transfer
and assumption of the master servicing by the Trustee (including, without
limitation, (i) all legal costs and expenses and all due diligence costs and
expenses associated with an evaluation of the potential termination of the
Master Servicer as a result of a Master Servicer Event of Default and (ii)
all
costs and expenses associated with the complete transfer of the master
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor Master Servicer to correct any errors or insufficiencies in
the
servicing data or otherwise to enable the successor Master Servicer to master
service the Mortgage Loans in accordance with this Agreement) are not fully
and
timely reimbursed by the terminated Master Servicer, the Trustee shall be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
165
Neither
the Trustee nor any other successor master servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof or any failure to perform, or
any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any
delay
in delivering or providing, any cash, information, documents or records to
it.
SECTION
8.02. Master
Servicer to Act; Appointment of Successor.
(a) Subject
to the following paragraph, on and after the time a Servicer receives a notice
of termination, the Master Servicer (or the Trustee in the event of a default
by
▇▇▇▇▇ Fargo) shall be the successor in all respects to such Servicer in its
capacity as the Servicer under this Agreement or the Servicing Agreement, as
applicable, and the transactions set forth or provided for herein or therein,
and all the responsibilities, duties and liabilities relating thereto and
arising thereafter shall be assumed by Master Servicer or the Trustee (except
for any representations or warranties of the related Servicer under this
Agreement or the Servicing Agreement, as applicable, the responsibilities,
duties and liabilities contained in Section 2.03 of this Agreement and the
obligation to deposit amounts in respect of losses pursuant to
Section 3.10(b) of this Agreement) by the terms and provisions hereof
including, without limitation, the related Servicer’s obligations to make
P&I Advances pursuant to Section 5.03 of this Agreement or pursuant to
the Servicing Agreement; provided that the Trustee shall be obligated to make
P&I Advances in connection with the Mortgage Loans serviced by ▇▇▇▇▇ Fargo
in the event ▇▇▇▇▇ Fargo is terminated as Servicer hereunder; provided further
that if the Master Servicer or the Trustee is prohibited by law or regulation
from obligating itself to make advances regarding delinquent mortgage loans,
then the Trustee or the Master Servicer shall not be obligated to make P&I
Advances pursuant to Section 5.03 of this Agreement or the Servicing
Agreement, as applicable; and provided further, that any failure to perform
such
duties or responsibilities caused by the related Servicer’s failure to provide
information required by Section 8.01 of this Agreement or under the
Servicing Agreement shall not be considered a default by the Trustee or other
successor servicer, as successor to the Servicer hereunder; provided, however,
that (1) it is understood and acknowledged by the parties hereto that there
will
be a period of transition (not to exceed ninety (90) days) before the actual
servicing functions can be fully transferred to the Trustee or any successor
servicer appointed in accordance with the following provisions and (2) any
failure to perform such duties or responsibilities caused by the Servicer’s
failure to provide information required by Section 8.01 of this Agreement
shall not be considered a default by the Trustee or any successor servicer.
As
compensation therefor, the Trustee or successor servicer shall be entitled
to
the Servicing Fee and all funds relating to the related Mortgage Loans to which
the terminated Servicer would have been entitled if it had continued to act
hereunder. Notwithstanding the above and subject to the immediately following
paragraph, the Trustee may, if it shall be unwilling to so act, or shall, if
it
is unable to so act promptly appoint or petition a court of competent
jurisdiction to appoint, a Person that satisfies the eligibility criteria set
forth below as the successor to the terminated Servicer under this Agreement
in
the assumption of all or any part of the responsibilities, duties or liabilities
of the terminated Servicer under this Agreement.
166
Notwithstanding
any provision in this Agreement to the contrary, for a period of 30 days
following the date on which the Servicer shall have received a notice of
termination pursuant to Section 8.01 of this Agreement, the Servicer or its
designee may appoint a successor Servicer that satisfies the eligibility
criteria of a successor Servicer set forth below, which appointment shall be
subject to the consent of the Depositor, the Sponsor and the Trustee, which
consent shall not be unreasonably withheld or delayed; provided that such
successor Servicer agrees to fully effect the servicing transfer within 120
days
following the termination of the Servicer and to make all P&I Advances that
would otherwise be made by the Master Servicer under Section 8.01 as of the
date of such appointment, and to reimburse the Master Servicer for any
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances they have made and any reimbursable expenses that
they may have incurred in connection with this Section 8.02. Any proceeds
received in connection with the appointment of such successor Servicer shall
be
the property of the Servicer or its designee. This 30-day period shall terminate
immediately (i) at the close of business on the second Business Day of such
30-day period if (A) the Servicer was terminated because of an Event of Default
described in Section 8.01(a)(vii) for failing to make a required P&I
Advance, and (B) the Servicer shall have failed to make (or cause to be made)
such P&I Advance, or shall fail to reimburse (or cause to be reimbursed) the
Master Servicer for a P&I Advance made by the Master Servicer, by the close
of business on such second Business Day, or (ii) at the close of business on
the
second Business Day following the date (if any) during such 30-day period on
which a P&I Advance is due to be made, if the Servicer shall have failed to
make (or caused to be made) such P&I Advance, or the Servicer shall have
failed to reimburse (or cause to be reimbursed) the Master Servicer for such
P&I Advance, by the close of business on such second Business
Day.
Notwithstanding
anything herein to the contrary, in no event shall the Trustee or the Master
Servicer be liable for any Servicing Fee or for any differential in the amount
of the Servicing Fee or paid hereunder or under the Servicing Agreement and
the
amount necessary to induce any successor Servicer or successor Master Servicer
to act as successor Servicer or successor Master Servicer under this Agreement
or the Servicing Agreement and the transactions set forth or provided for
herein.
Any
successor Servicer appointed under this Agreement must (i) be an established
mortgage loan servicing institution that is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac
approved seller/servicer, (ii) be approved by each Rating Agency by a written
confirmation from each Rating Agency that the appointment of such successor
Servicer would not result in the reduction or withdrawal of the then current
ratings of any outstanding Class of Certificates, (iii) have a net worth of
not
less than $25,000,000 and (iv) assume all the responsibilities, duties or
liabilities of the Servicer (other than liabilities of the Servicer hereunder
incurred prior to termination of the Servicer under Section 8.01 herein)
under this Agreement as if originally named as a party to this
Agreement.
(b)
(1) All
servicing transfer costs (including, without limitation, servicing transfer
costs of the type described in Section 8.02(a) of this Agreement and
incurred by the Trustee, the Master Servicer and any successor Servicer under
paragraph (b)(2) below) in connection with the termination of a Servicer shall
be paid by the terminated Servicer upon presentation of reasonable documentation
of such costs, and if such predecessor or initial Servicer, as applicable,
defaults in its obligation to pay such costs, the successor Servicer, the Master
Servicer and the Trustee shall be entitled to reimbursement therefor from the
assets of the Trust Fund.
167
(2) No
appointment of a successor to a Servicer under this Agreement shall be effective
until the assumption by the successor of all of such Servicer’s
responsibilities, duties and liabilities hereunder. In connection with such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on the
related Mortgage Loans as it and such successor shall agree; provided, however,
that no such compensation shall be in excess of that permitted the related
Servicer as such hereunder or under the Servicing Agreement. The Depositor,
the
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Pending
appointment of a successor to a Servicer under this Agreement, the Master
Servicer shall act in such capacity as hereinabove provided.
SECTION
8.03. Notification
to Certificateholders.
(a) Upon
any
termination of the Master Servicer or the Servicer pursuant to
Section 8.01(a) or (b) of this Agreement, or any appointment of a successor
to the Master Servicer or the Servicer pursuant to Section 8.02 of this
Agreement, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not
later
than the later of sixty (60) days after the occurrence of any event, which
constitutes or which, with notice or lapse of time or both, would constitute
a
Servicer Event of Default or a Master Servicer Event of Default or five (5)
days
after a Responsible Officer of the Trustee becomes aware of the occurrence
of
such an event, the Trustee shall transmit by mail to all Holders of Certificates
notice of each such occurrence, unless such default or Servicer Event of Default
or Master Servicer Event of Default shall have been cured or
waived.
SECTION
8.04. Waiver
of
Servicer Events of Default.
The
Holders representing at least 66% of the Voting Rights evidenced by all Classes
of Certificates affected by any default, Servicer Event of Default or Master
Servicer Event of Default hereunder may waive such default, Servicer Event
of
Default or Master Servicer Event of Default; provided, however, that a Servicer
Event of Default under clause (i) or (vii) of Section 8.01(a) of this
Agreement may be waived only by all of the Holders of the Regular Certificates.
Upon any such waiver of a default, Servicer Event of Default or Master Servicer
Event of Default, such default, Servicer Event of Default or Master Servicer
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent
or
other default, Servicer Event of Default or Master Servicer Event of Default
or
impair any right consequent thereon except to the extent expressly so
waived.
168
ARTICLE
IX
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION
9.01. Duties
of
Trustee and Securities Administrator.
The
Trustee, prior to the occurrence of a Master Servicer Event of Default and
after
the curing or waiver of all Master Servicer Events of Default which may have
occurred, and the Securities Administrator each undertake to perform such duties
and only such duties as are specifically set forth in this Agreement as duties
of the Trustee and the Securities Administrator, respectively. During the
continuance of a Master Servicer Event of Default, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the same
degree of care and skill in its exercise as a prudent person would exercise
or
use under the circumstances in the conduct of such person’s own affairs. Any
permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
Each
of
the Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement. If any such
instrument is found not to conform to the requirements of this Agreement in
a
material manner, the Trustee or the Securities Administrator, as the case may
be, shall take such action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to its satisfaction, the
Securities Administrator will provide notice to the Trustee thereof and the
Trustee will provide notice to the Certificateholders.
The
Trustee shall promptly remit to the related Servicer any complaint, claim,
demand, notice or other document (collectively, the “Notices”) delivered to the
Trustee as a consequence of the assignment of any Mortgage Loan hereunder and
relating to the servicing of the Mortgage Loans; provided than any such notice
(i) is delivered to the Trustee at its Corporate Trust Office, (ii) contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property. The
Trustee shall have no duty hereunder with respect to any Notice it may receive
or which may be alleged to have been delivered to or served upon it unless
such
Notice is delivered to it or served upon it at its Corporate Trust Office and
such Notice contains the information required pursuant to clause (ii) of the
preceding sentence.
The
Trustee and the Securities Administrator shall accept and agree to the terms
set
forth in the written notice provided by the Underwriter to the Trustee and
the
Securities Administrator appointing a Designated Entity with respect to any
class of Designated Certificates.
169
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 misconduct; provided, however,
that:
(i) Prior
to
the occurrence of a Master Servicer Event of Default, and after the curing
or
waiver of all such Master Servicer Events of Default which may have occurred
with respect to the Trustee and at all times with respect to the Securities
Administrator, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, neither the Trustee nor
the
Securities Administrator shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against
the
Trustee or the Securities Administrator and, in the absence of bad faith on
the
part of the Trustee or the Securities Administrator, respectively, the Trustee
or the Securities Administrator, respectively, may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee or the Securities
Administrator, respectively, that conform to the requirements of this
Agreement;
(ii) Neither
the Trustee nor the Securities Administrator shall be liable for an error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of
the Trustee or an officer or officers of the Securities Administrator,
respectively, unless it shall be proved that the Trustee or the Securities
Administrator, respectively, was negligent in ascertaining the pertinent facts;
and
(iii) Neither
the Trustee nor the Securities Administrator shall be liable with respect to
any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders of Certificates entitled to at least 25%
of
the Voting Rights relating 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 under this Agreement.
SECTION
9.02. Certain
Matters Affecting Trustee and Securities Administrator.
(a) Except
as
otherwise provided in Section 9.01 of this Agreement:
(i) Before
taking any action hereunder, the Trustee and the Securities Administrator may
request and rely upon and shall be protected in acting or refraining from acting
upon any resolution, Officers’ Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it
to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) The
Trustee and the Securities Administrator may consult with counsel of its
selection and any advice of such counsel or any Opinion of Counsel shall be
full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
170
(iii) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto
at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee or the Securities Administrator, as the case may be,
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of a Master Servicer Event of Default (which has not been cured
or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise as
a
prudent person would exercise or use under the circumstances in the conduct
of
such person’s own affairs;
(iv) Neither
the Trustee nor the Securities Administrator shall be liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) Prior
to
the occurrence of a Master Servicer Event of Default hereunder and after the
curing or waiver of all Master Servicer Events of Default which may have
occurred with respect to the Trustee and at all times with respect to the
Securities Administrator, neither the Trustee nor the Securities Administrator
shall be bound to make any investigation into the facts or matters stated in
any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within
a
reasonable time to the Trustee or the Securities Administrator of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities Administrator,
as applicable, not reasonably assured to the Trustee or the Securities
Administrator by such Certificateholders, the Trustee or the Securities
Administrator, as applicable, may require reasonable indemnity satisfactory
to
it against such expense, or liability from such Certificateholders as a
condition to taking any such action;
(vi) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(vii) The
Trustee shall not be liable for any loss resulting from (a) the investment
of
funds held in the Collection Account or the Custodial Account, (b) the
investment of funds held in the Distribution Account, (c) the investment of
funds held in the Reserve Fund or (d) the redemption or sale of any such
investment as therein authorized;
171
(viii) The
Trustee shall not be deemed to have notice of any default, Master Servicer
Event
of Default or Servicer 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 a Responsible Officer of the Trustee
at
the Corporate Trust Office of the Trustee, and such notice references the
Certificates and this Agreement;
(ix) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, each agent, custodian and other Person employed to
act
hereunder;
(x) Should
the Trustee or the Securities Administrator deem the nature of any action
required on its part to be unclear, the Trustee or the Securities Administrator
may require, prior to taking such action, that it be provided by the Depositor
with reasonable further instructions; and
(xi) No
provision of this Agreement shall require the Trustee (regardless of the
capacity in which it is acting) 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
risk or liability is not reasonably assured to it.
(xii) The
Trustee shall not have any duty to conduct any affirmative investigation
(including, but not limited to, reviewing any report delivered to the Trustee
in
connection with the review of the Mortgage Files) as to the occurrence of any
condition requiring the repurchase of any Mortgage Loan by the Sponsor pursuant
to this Agreement or the Mortgage Loan Purchase Agreement, as applicable, or
the
eligibility of any Mortgage Loan for purposes of this Agreement.
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by it without the possession of
any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in its name for the benefit of all the Holders of
such
Certificates, subject to the provisions of this Agreement.
(c) The
Trustee, not in its individual capacity but solely in its separate capacity
as
Supplemental Interest Trust Trustee, is hereby directed to exercise the rights,
perform the obligations, and make any representations to be exercised,
performed, or made by the Supplemental Interest Trust Trustee, as described
herein. The Supplemental Interest Trust Trustee is hereby directed to execute
and deliver the Class A Swap Agreement on behalf of Party B (as defined therein)
and to exercise the rights, perform the obligations, and make the
representations of Party B thereunder, solely in its capacity as Supplemental
Interest Trust Trustee on behalf of Party B (as defined therein) and not in
its
individual capacity.
172
The
Sponsor, the Servicer, the Depositor and the Certificateholders (by acceptance
of their Certificates) acknowledge and agree that:
(i) the
Supplemental Interest Trust Trustee shall execute and deliver the Class A Swap
Agreement on behalf of Party B (as defined therein),
(ii) the
Supplemental Interest Trust Trustee shall exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Supplemental Interest Trust Trustee on behalf of Party B (as defined
therein) and not in its individual capacity, and
(iii) the
Securities Administrator shall also be entitled to exercise the rights and
obligated to perform the obligations of Party B under the Class A Swap
Agreement.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Trustee’s
execution, as Supplemental Interest Trust Trustee, of the Class A Swap
Agreement, and the performance of its duties and satisfaction of its obligations
thereunder.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Securities Administrator shall apply to the
Securities Administrator’s performance of its duties and satisfaction of its
obligations under the Class A Swap Agreement.
(d) None
of
the Securities Administrator, the Master Servicer, the Servicer, the Sponsor,
the Depositor, the Custodian or the Trustee shall be responsible for the acts
or
omissions of the others or the Swap Provider, it being understood that this
Agreement shall not be construed to render those partners joint venturers or
agents of one another.
SECTION
9.03. Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Securities Administrator, the authentication of the Securities Administrator
on the Certificates, the acknowledgments of the Trustee contained in Article
II
and the representations and warranties of the Trustee in Sections 2.11 and
9.12 of this Agreement) shall be taken as the statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness. Neither the Trustee nor the Securities Administrator
makes any representations or warranties as to the validity or sufficiency of
this Agreement (other than as specifically set forth in Section 9.12 of
this Agreement), the Class A Swap Agreement or of the Certificates (other than
the signature of the Securities Administrator and authentication of the
Securities Administrator on the Certificates) or of any Mortgage Loan or related
document. The Trustee and the Securities Administrator shall not be accountable
for the use or application by the Depositor of any of the Certificates or of
the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor or the Master Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from the Collection Account or the Custodial Account
by the related Servicer, other than with respect to the Securities Administrator
any funds held by it or on behalf of the Trustee in accordance with
Sections 3.23, 3.24, and 5.07 of this Agreement.
173
SECTION
9.04. Trustee
and Securities Administrator May Own Certificates.
Each
of
the Trustee and the Securities Administrator in its individual capacity or
any
other capacity may become the owner or pledgee of Certificates and may transact
business with other interested parties and their Affiliates with the same rights
it would have if it were not Trustee or the Securities
Administrator.
SECTION
9.05. Fees
and
Expenses of Trustee, Custodian and Securities Administrator.
The
fees
of the Trustee and the Securities Administrator hereunder and of the Custodian
under the Custodial Agreement shall be paid in accordance with a side letter
agreement with the Master Servicer and at the sole expense of the Master
Servicer. In addition, the Trustee, the Securities Administrator, the Custodian
and any director, officer, employee or agent of the Trustee, the Securities
Administrator and the Custodian shall be indemnified by the Trust and held
harmless against any loss, liability or expense (including reasonable attorney’s
fees and expenses) incurred by the Trustee, the Custodian or the Securities
Administrator in connection with any claim or legal action or any pending or
threatened claim or legal action arising out of or in connection with the
acceptance or administration of its respective obligations and duties under
this
Agreement, including the Swap Agreement, and any and all other agreements
related hereto, other than any loss, liability or expense (i) solely with
respect to the Trustee, for which the Trustee is indemnified by the Master
Servicer or any Servicer, (ii) that constitutes a specific liability of the
Trustee or the Securities Administrator, as applicable, pursuant to
Section 11.01(g) of this Agreement or (iii) any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder by the Trustee or the Securities Administrator,
as applicable, or by reason of reckless disregard of its obligations and duties
hereunder. In no event shall the Trustee, Custodian, Master Servicer or the
Securities Administrator be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if it has been advised of the likelihood of such loss or damage and
regardless of the form of action. The Master Servicer agrees to indemnify the
Trustee, from, and hold the Trustee harmless against, any loss, liability or
expense (including reasonable attorney’s fees and expenses) incurred by the
Trustee by reason of the Master Servicer’s willful misfeasance, bad faith or
gross negligence in the performance of its duties under this Agreement or by
reason of the Master Servicer’s reckless disregard of its obligations and duties
under this Agreement. In addition, the Sponsor agrees to indemnify the Trustee
for, and to hold the Trustee harmless against, any loss, liability or expense
arising out of, or in connection with, the provisions set forth in the last
paragraph of Section 2.01 of this Agreement, 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.
The indemnities in this Section 9.05 shall survive the termination or
discharge of this Agreement and the resignation or removal of the Master
Servicer, the Trustee, the Securities Administrator or the Custodian. Any
payment under this Section 9.05 made by the Master Servicer to the Trustee
in respect of the Trustee’s fees or the Master Servicer’s indemnification
obligation to the Trustee shall be from the Master Servicer’s own funds, without
reimbursement from REMIC I therefor.
174
SECTION
9.06. Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and the Securities Administrator shall at all times be a corporation
or
an association (other than the Depositor, the Sponsor, the Master Servicer
or
any Affiliate of the foregoing) 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 at
least $50,000,000 (or a member of a bank holding company whose capital and
surplus is at least $50,000,000) and subject to supervision or examination
by
federal or state authority. If such corporation or association publishes reports
of conditions 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 association
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of conditions so published. In case at any time the Trustee or
the
Securities Administrator, as applicable, shall cease to be eligible in
accordance with the 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 9.07 of this Agreement.
Additionally,
the Securities Administrator (i) may not be an originator, Servicer, the
Depositor or an affiliate of the Depositor unless the Securities Administrator
is in an institutional trust department, (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,
or
the equivalent rating by S&P (or such rating acceptable to Fitch pursuant to
a rating confirmation). If no successor securities administrator shall have
been
appointed and shall have accepted appointment within 60 days after ▇▇▇▇▇ Fargo
Bank, National Association, as Securities Administrator, ceases to be the
securities administrator pursuant to this Section 9.06, then the Trustee
shall petition any court of competent jurisdiction, at the expense of the Trust,
for the appointment of a successor securities administrator which satisfies
the
eligibility criteria set forth herein. The Trustee shall notify the Rating
Agencies of any change of Securities Administrator.
SECTION
9.07. Resignation
and Removal of Trustee and Securities Administrator.
The
Trustee and the Securities Administrator may at any time resign and be
discharged from the trust hereby created by giving written notice thereof to
the
Depositor, to the Master Servicer, to the Securities Administrator (or the
Trustee, if the Securities Administrator resigns), to the Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee or successor securities administrator by written instrument,
in duplicate, which instrument shall be delivered to the resigning Trustee
or
Securities Administrator, as applicable, and to the successor trustee or
successor securities administrator, as applicable. A copy of such instrument
shall be delivered to the Certificateholders, the Trustee, the Securities
Administrator and the Master Servicer by the Depositor. If no successor trustee
or successor securities administrator shall have been so appointed and have
accepted appointment within thirty (30) days after the giving of such notice
of
resignation, the resigning Trustee or Securities Administrator, as the case
may
be, may, at the expense of the Trust Fund, petition any court of competent
jurisdiction for the appointment of a successor trustee, successor securities
administrator, Trustee or Securities Administrator, as applicable.
175
If
at any
time the Trustee or the Securities Administrator shall cease to be eligible
in
accordance with the provisions of Section 9.06 of this Agreement and shall
fail to resign after written request therefor by the Depositor, or if at any
time the Trustee or the Securities Administrator shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or the Securities Administrator or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or the Securities
Administrator or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove the Trustee or the
Securities Administrator, as applicable and the Depositor shall appoint a
successor trustee or successor securities administrator, as applicable, by
written instrument, in duplicate, which instrument shall be delivered to the
Trustee or the Securities Administrator so removed and to the successor trustee
or successor securities administrator. A copy of such instrument shall be
delivered to the Certificateholders, the Trustee, the Securities Administrator
and the Master Servicer by the Depositor.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may at
any
time remove the Trustee or the Securities Administrator and appoint a successor
trustee or successor securities administrator by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to
the
Depositor, one complete set to the Trustee or the Securities Administrator
so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders, the Trustee (in the
case of the removal of the Securities Administrator), the Securities
Administrator (in the case of the removal of the Trustee) and the Master
Servicer by the Depositor.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor trustee or successor securities administrator
pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee or successor
securities administrator, as applicable, as provided in
Section 9.08.
Any
Person appointed as successor trustee pursuant to Section 9.07 shall also be
required to serve as successor supplemental interest trust trustee under the
Class A Swap Agreement.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the
Securities Administrator shall at all times be the same Person.
SECTION
9.08. Successor
Trustee or Securities Administrator.
Any
successor trustee or successor securities administrator appointed as provided
in
Section 9.07 of this Agreement shall execute, acknowledge and deliver to
the Depositor and its predecessor trustee or predecessor securities
administrator an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee or predecessor securities
administrator shall become effective and such successor trustee or successor
securities administrator without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with the like effect as if originally named as trustee
or
securities administrator herein. The predecessor trustee or predecessor
securities administrator shall deliver to the successor trustee or successor
securities administrator all Mortgage Loan Documents and related documents
and
statements to the extent held by it hereunder, as well as all monies, held
by it
hereunder, and the Depositor and the predecessor trustee or predecessor
securities administrator shall execute and deliver such instruments and do
such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee or successor securities administrator
all such rights, powers, duties and obligations.
176
No
successor trustee or successor securities administrator shall accept appointment
as provided in this Section unless at the time of such acceptance such
successor trustee or successor securities administrator shall be eligible under
the provisions of Section 9.06 and the appointment of such successor
trustee or successor securities administrator shall not result in a downgrading
of any Class of Certificates by any Rating Agency, as evidenced by a letter
from
each Rating Agency.
Upon
acceptance of appointment by a successor trustee or successor securities
administrator as provided in this Section, the Depositor shall mail notice
of
the succession of such trustee hereunder to all Holders of Certificates at
their
addresses as shown in the Certificate Register. If the Depositor fails to mail
such notice within ten (10) days after acceptance of appointment by the
successor trustee or successor securities administrator, the successor trustee
or successor securities administrator shall cause such notice to be mailed
at
the expense of the Depositor.
SECTION
9.09. Merger
or
Consolidation of Trustee or Securities Administrator.
Any
corporation or association into which the Trustee or the Securities
Administrator may be merged or converted or with which it may be consolidated
or
any corporation or association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator shall be
a
party, or any corporation or association succeeding to the business of the
Trustee or the Securities Administrator shall be the successor of the Trustee
or
the Securities Administrator hereunder, provided such corporation or association
shall be eligible under the provisions of Section 9.06 of this Agreement,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
9.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the REMIC I or property
securing the same may at the time be located, the Trustee shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of REMIC
I, and to vest in such Person or Persons, in such capacity, and for the benefit
of the Holders of the Certificates, such title to REMIC I, or any part thereof,
and, subject to the other provisions of this Section 9.10, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary
or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 9.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
177
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular
act
or acts are to be performed by the Trustee (whether as Trustee hereunder or
as
successor to a defaulting Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to REMIC
I or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
IX.
Each separate trustee and co-trustee, upon its acceptance of the trust
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.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee or co-trustee.
SECTION
9.11. Appointment
of Office or Agency.
The
Certificates may be surrendered for registration of transfer or exchange at
the
Securities Administrator’s office located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and presented for final distribution at the
Corporate Trust Office of the Securities Administrator where notices and demands
to or upon the Securities Administrator in respect of the Certificates and
this
Agreement may be served.
178
SECTION
9.12. Representations
and Warranties.
The
Trustee hereby represents and warrants to the Master Servicer, the Securities
Administrator, ▇▇▇▇▇ Fargo and the Depositor as applicable, as of the Closing
Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its articles
of association or bylaws or 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 agreement or other instrument to which it is a party
or
which is applicable to it or any of its assets.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of it,
enforceable against it in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium
and
other laws affecting the enforcement of creditors’ rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) It
is not
in violation of, and its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in its good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of
it
to perform its obligations under this Agreement or its financial
condition.
(vi) No
litigation is pending or, to the best of its knowledge, threatened against
it,
which would prohibit it from entering into this Agreement or, in its good faith
reasonable judgment, is likely to materially and adversely affect either the
ability of it to perform its obligations under this Agreement or its financial
condition.
179
ARTICLE
X
TERMINATION
▇▇▇▇▇▇▇
▇▇.▇▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or Liquidation of All Mortgage Loans.
(a) Subject
to Section 10.02 of this Agreement, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer,
the
Securities Administrator, the Servicers and the Trustee (other than the
obligations of the Master Servicer to the Trustee pursuant to Section 9.05
of this Agreement and of the Servicers to make remittances to the Securities
Administrator and the Securities Administrator to make payments in respect
of
the REMIC I Regular Interests, REMIC II Regular Interests or the Classes of
Certificates as hereinafter set forth) shall terminate upon payment to the
Certificateholders and the deposit of all amounts held by or on behalf of the
Trustee and required hereunder to be so paid or deposited on the Distribution
Date coinciding with or following the earlier to occur of (i) the purchase
by
the Master Servicer of all Mortgage Loans and each REO Property remaining in
REMIC I and (ii) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in REMIC
I;
provided, however, that in no event shall the trust created hereby continue
beyond the earlier of (i) the expiration of 21 years from the death of the
last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof and (ii)
the
Last Scheduled Distribution Date. The purchase by the Master Servicer of all
Mortgage Loans and each REO Property remaining in REMIC I shall be at a price
(the “Termination Price”) equal to the sum of (i) the greater of (A) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I, plus
the
appraised value of each REO Property, if any, included in REMIC I, such
appraisal to be conducted by an appraiser mutually agreed upon by the Master
Servicer and the Trustee in their reasonable discretion and (B) the aggregate
fair market value of all of the assets of REMIC I (as determined by the Master
Servicer and the Trustee, as of the close of business on the third Business
Day
next preceding the date upon which notice of any such termination is furnished
to Certificateholders pursuant to the third paragraph of this Section 10.01),
(ii) any amounts due and owing to the Swap Provider under the Class A Swap
Agreement and any previous swap provider as of the termination date (including
a
Swap Termination Payment owed to the Swap Provider in connection with such
optional termination) plus (iii) any amounts due the Servicer and the Master
Servicer in respect of unpaid Servicing Fees and outstanding P&I Advances
and Servicing Advances.
(b) The
Master Servicer shall have the right to purchase all of the Mortgage Loans
and
each REO Property remaining in REMIC I pursuant to clause (i) of the preceding
paragraph no later than the Determination Date in the month immediately
preceding the Distribution Date on which the Certificates will be retired;
provided, however, that the Master Servicer may elect to purchase all of the
Mortgage Loans on a servicing retained basis and each REO Property remaining
in
REMIC I pursuant to clause (i) above only if the aggregate Scheduled Principal
Balance of the Mortgage Loans and each REO Property remaining in the Trust
Fund
at the time of such election is reduced to less than or equal to 10% of the
aggregate Scheduled Principal Balance of the Mortgage Loans as of the Cut-off
Date. By acceptance of the Residual Certificates, the Holder of the Residual
Certificates agrees, in connection with any termination hereunder, to assign
and
transfer any portion of the Termination Price in excess of par, and to the
extent received in respect of such termination, to pay any such amounts to
the
Certificateholders.
180
(c) Two
(2)
Business Days prior to the final Distribution Date specified in the notice
required pursuant to Section 10.01(f), (i) the Master Servicer shall, no later
than 1:00 pm New York City time on such day, deposit funds in the Distribution
Account in an amount equal to the sum of the Termination Price, and (ii) if
the
Securities Administrator shall have determined that the aggregate Scheduled
Principal Balance of all of the Mortgage Loans as of the related Determination
Date is not more than 10% of the aggregate Principal Balance of the Mortgage
Loans as of the Cut-off Date and that all other requirements of the optional
termination have been met, including without limitation, the deposit required
pursuant to the immediately preceding clause (i) as well as the requirements
specified in Section 10.02, then the Securities Administrator shall, on the
same
Business Day, provide written notice to the Depositor, the Master Servicer,
the
Servicer, the Supplemental Interest Trust Trustee, the Trustee and the Swap
Provider confirming (in accordance with the applicable provisions of the Swap
Agreement) (a) its receipt of the Termination Price and (b) that all other
requirements of the optional termination have been met.
(d) Notice
of
the liquidation of the Certificates shall be given promptly by the Securities
Administrator by letter to the Certificateholders mailed (a) in the event such
notice is given in connection with the purchase of the Mortgage Loans and each
REO Property by the Master Servicer, not earlier than the 15th day and not
later
than the 25th day of the month next preceding the month of the final
distribution on the Certificates or (b) otherwise during the month of such
final
distribution on or before the Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and the final payment in respect of the REMIC I Regular Interests or the
Certificates will be made upon presentation and surrender of the related
Certificates at the office of the Securities Administrator therein designated,
(ii) the amount of any such final payment, (iii) that no interest shall accrue
in respect of the REMIC I Regular Interests or Certificates from and after
the
Interest Accrual Period relating to the final Distribution Date therefor and
(iv) that the Record Date otherwise applicable to such Distribution Date is
not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Securities Administrator. In the event such
notice is given in connection with the purchase of all of the Mortgage Loans
and
each REO Property remaining in REMIC I by the Master Servicer, the Master
Servicer shall deliver to the Securities Administrator for deposit in the
Distribution Account not later than the Business Day prior to the Distribution
Date on which the final distribution on the Certificates an amount in
immediately available funds equal to the above-described Termination Price.
The
Securities Administrator shall remit to the Servicer, the Master Servicer,
the
Trustee and the Custodian from such funds deposited in the Distribution Account
(i) any amounts which the Servicer would be permitted to withdraw and retain
from the Collection Account pursuant to Section 3.09 of this Agreement, as
applicable, as if such funds had been deposited therein (including all unpaid
Servicing Fees, Master Servicing Fees and all outstanding P&I Advances and
Servicing Advances) and (ii) any other amounts otherwise payable by the
Securities Administrator to the Master Servicer, the Trustee, the Custodian,
the
Servicer and the Swap Provider from amounts on deposit in the Distribution
Account pursuant to the terms of this Agreement prior to making any final
distributions pursuant to Section 10.01(e) below. Upon certification to the
Trustee by the Securities Administrator of the making of such final deposit,
the
Trustee shall promptly release or cause to be released to the Master Servicer
the Mortgage Files for the remaining Mortgage Loans, and Trustee shall execute
all assignments, endorsements and other instruments delivered to it and
necessary to effectuate such transfer.
181
(e) Upon
presentation of the Certificates by the Certificateholders on the final
Distribution Date, the Securities Administrator shall distribute to each
Certificateholder so presenting and surrendering its Certificates the amount
otherwise distributable on such Distribution Date in accordance with
Section 5.01 in respect of the Certificates so presented and surrendered.
Any funds not distributed to any Holder or Holders of Certificates being retired
on such Distribution Date because of the failure of such Holder or Holders
to
tender their Certificates shall, on such date, be set aside and held in trust
and credited to the account of the appropriate non-tendering Holder or Holders.
If any Certificates as to which notice has been given pursuant to this
Section 10.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Securities Administrator
shall mail a second notice to the remaining non-tendering Certificateholders
to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second notice
all such Certificates shall not have been surrendered for cancellation, the
Securities Administrator shall, directly or through an agent, mail a final
notice to the remaining non-tendering Certificateholders concerning surrender
of
their Certificates. The costs and expenses of maintaining the funds in trust
and
of contacting such Certificateholders shall be paid out of the assets remaining
in the trust funds. If within one (1) year after the final notice any such
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall pay to the Depositor all such amounts, and all rights of
non-tendering Certificateholders in or to such amounts shall thereupon cease.
No
interest shall accrue or be payable to any Certificateholder on any amount
held
in trust by the Securities Administrator as a result of such Certificateholder’s
failure to surrender its Certificate(s) on the final Distribution Date for
final
payment thereof in accordance with this Section 10.01. Any such amounts
held in trust by the Securities Administrator shall be held uninvested in an
Eligible Account.
SECTION
10.02. Additional
Termination Requirements.
(a) In
the
event that the Master Servicer purchases all the Mortgage Loans and each REO
Property or the final payment on or other liquidation of the last Mortgage
Loan
or REO Property remaining in REMIC I pursuant to Section 10.01, the Trust
Fund shall be terminated in accordance with the following additional
requirements:
(i) The
Securities Administrator shall specify the first day in the 90-day liquidation
period in a statement attached to each Trust REMIC’s final Tax Return pursuant
to Treasury regulation Section 1.860F-1 and shall satisfy all requirements
of a qualified liquidation under Section 860F of the Code and any
regulations thereunder, as evidenced by an Opinion of Counsel obtained by and
at
the expense of the Master Servicer;
(ii) During
such 90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell all of the assets
of
REMIC I to the Master Servicer for cash; and
182
(iii) At
the
time of the making of the final payment on the Certificates, 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 in the
Trust Fund (other than cash retained to meet claims), and the Trust Fund shall
terminate at that time.
(b) At
the
expense of the Master Servicer (or, if the Trust Fund is being terminated as
a
result of the occurrence of the event described in clause (ii) of the first
paragraph of Section 10.01, at the expense of the Trust Fund), the Master
Servicer shall prepare or cause to be prepared the documentation required in
connection with the adoption of a plan of liquidation of each Trust REMIC
pursuant to this Section 10.02.
(c) By
their
acceptance of Certificates, the Holders thereof hereby agree to authorize the
Securities Administrator to specify the 90-day liquidation period for each
Trust
REMIC, which authorization shall be binding upon all successor
Certificateholders.
183
ARTICLE
XI
REMIC
PROVISIONS
SECTION
11.01. REMIC
Administration.
(a) The
Securities Administrator shall elect to treat each Trust REMIC as a REMIC under
the Code and, if necessary, under applicable state law. Each such election
will
be made by the Securities Administrator on Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of the REMIC election in respect
of
REMIC I, the REMIC I Regular Interests shall be designated as the Regular
Interests in REMIC I and the Class R-I Interest shall be designated as the
“residual interests” in REMIC I. For the purposes of the REMIC election in
respect of REMIC II, the REMIC II Regular Interests shall be designated as
the
Regular Interests in REMIC II and the Class R-II Interest shall be designated
as
the “residual interests” in REMIC II. The Class A Certificates and the
Subordinate Certificates (exclusive of any right of the holder of such
certificates to receive payments or any obligation to make payments in respect
of Net WAC Rate Carryover Amounts or with respect to the Supplemental Interest
Trust) and the Class IO Interest shall be designated as the Regular Interests
in
REMIC III and the Class R-III Interest shall be designated as the Residual
Interests in REMIC III. The Trustee shall not permit the creation of any
“interests” in each Trust REMIC (within the meaning of Section 860G of the
Code) other than the REMIC I Regular Interests, the REMIC II Regular Interests,
the Regular Certificates, the Class IO Interest and the interests represented
by
the Certificates.
(b) The
Closing Date is hereby designated as the “Startup Day” of each Trust REMIC
within the meaning of Section 860G(a)(9) of the Code.
(c) The
Securities Administrator shall be reimbursed for any and all expenses relating
to any tax audit of the Trust Fund (including, but not limited to, any
professional fees or any administrative or judicial proceedings with respect
to
each Trust REMIC that involve the Internal Revenue Service or state tax
authorities), including the expense of obtaining any tax related Opinion of
Counsel except as specified herein. The Securities Administrator, as agent
for
each Trust REMIC’s tax matters person shall (i) act on behalf of the Trust Fund
in relation to any tax matter or controversy involving any Trust REMIC and
(ii)
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 holder of the largest Percentage Interest of each Class of Residual
Certificates shall be designated, in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1, as the tax matters person of the related REMIC created
hereunder. By their acceptance thereof, the holder of the largest Percentage
Interest of the Residual Certificates hereby agrees to irrevocably appoint
the
Securities Administrator or an Affiliate as its agent to perform all of the
duties of the tax matters person for the Trust Fund.
(d) The
Securities Administrator shall prepare and file and the Trustee shall sign
all
of the Tax Returns in respect of each REMIC created hereunder. The expenses
of
preparing and filing such returns shall be borne by the Securities Administrator
without any right of reimbursement therefor.
184
(e) The
Securities Administrator shall perform on behalf of each Trust 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, as required by the Code, the REMIC Provisions or other such
compliance guidance, the Securities Administrator shall provide (i) to any
Transferor of a Residual Certificate such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to
any
Person who is not a Permitted Transferee upon receipt of additional reasonable
compensation, (ii) to the Certificateholders such information or reports as
are
required by the Code or the REMIC Provisions including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service
the
name, title, address and telephone number of the person who will serve as the
representative of each Trust REMIC. The Depositor shall provide or cause to
be
provided to the Securities Administrator, within ten (10) days after the Closing
Date, all information or data that the Securities Administrator reasonably
determines to be relevant for tax purposes as to the valuations and issue prices
of the Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) To
the
extent in the control of the Trustee or the Securities Administrator, each
such
Person (i) shall take such action and shall cause each REMIC created hereunder
to take such action as shall be necessary to create or maintain the status
thereof as a REMIC under the REMIC Provisions, (ii) shall not take any action,
cause the Trust Fund 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 (A) endanger the status of each Trust REMIC as a REMIC
or
(B) result in the imposition of a tax upon the Trust Fund (including but not
limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, an “Adverse REMIC
Event”) unless such action or inaction is permitted under this Agreement or the
Trustee and the Securities Administrator have received an Opinion of Counsel,
addressed to the them (at the expense of the party seeking to take such action
but in no event at the expense of the Trustee or the Securities Administrator)
to the effect that the contemplated action will not, with respect to any Trust
REMIC, endanger such status or result in the imposition of such a tax, nor
(iii)
shall the Securities Administrator take or fail to take any action (whether
or
not authorized hereunder) as to which the Trustee has advised it in writing
that
it has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action; provided that the Securities
Administrator may conclusively rely on such Opinion of Counsel and shall incur
no liability for its action or failure to act in accordance with such Opinion
of
Counsel. In addition, prior to taking any action with respect to any Trust
REMIC
or the respective assets of each, or causing any Trust REMIC to take any action,
which is not contemplated under the terms of this Agreement, the Securities
Administrator will consult with the Trustee or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur
with
respect to any Trust REMIC, and the Securities Administrator shall not take
any
such action or cause any Trust REMIC to take any such action as to which the
Trustee has advised it in writing that an Adverse REMIC Event could occur.
The
Trustee may consult with counsel (and conclusively rely upon the advice of
such
counsel) to make such written advice, and the cost of same shall be borne by
the
party seeking to take the action not permitted by this Agreement, but in no
event shall such cost be an expense of the Trustee.
185
(g) In
the
event that any tax is imposed on “prohibited transactions” of any REMIC created
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income
from foreclosure property” of such REMIC as defined in Section 860G(c) of
the Code, on any contributions to any such REMIC after the Startup Day therefor
pursuant to Section 860G(d) of the Code, or any other tax is imposed by the
Code or any applicable provisions of state or local tax laws, such tax shall
be
charged (i) to the Trustee pursuant to Section 11.03 of this Agreement, if
such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article XI, (ii) to the Securities Administrator pursuant
to Section 11.03 of this Agreement, if such tax arises out of or results
from a breach by the Securities Administrator of any of its obligations under
this Article XI, (iii) to the Master Servicer pursuant to Section 11.03 of
this Agreement, if such tax arises out of or results from a breach by the Master
Servicer of any of its obligations under Article IV or under this Article XI,
(iv) to ▇▇▇▇▇ Fargo pursuant to Section 11.03 of this Agreement, if such
tax arises out of or results from a breach by the Servicer of any of its
obligations under Article III or under this Article XI, or (v) in all other
cases, against amounts on deposit in the Distribution Account and shall be
paid
by withdrawal therefrom.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain books
and records with respect to each Trust REMIC on a calendar year and on an
accrual basis.
(i) Following
the Startup Day, neither the Securities Administrator nor the Trustee shall
accept any contributions of assets to any Trust REMIC other than in connection
with any Qualified Substitute Mortgage Loan delivered in accordance with
Section 2.03 unless it shall have received an Opinion of Counsel to the
effect that the inclusion of such assets in the Trust Fund will not cause the
related REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding or subject such REMIC to any tax under the REMIC Provisions
or
other applicable provisions of federal, state and local law or
ordinances.
(j) Neither
the Trustee nor the Securities Administrator shall knowingly enter into any
arrangement by which any Trust REMIC will receive a fee or other compensation
for services nor permit either REMIC to receive any income from assets other
than “qualified mortgages” as defined in Section 860G(a)(3) of the Code or
“permitted investments” as defined in Section 860G(a)(5) of the
Code.
(k) The
Securities Administrator shall apply for an employer identification number
with
the Internal Revenue Service via a Form SS-4 or other comparable method for
each
REMIC. In connection with the foregoing, the Securities Administrator shall
provide the name and address of the person who can be contacted to obtain
information required to be reported to the holders of Regular Interests in
each
REMIC as required by IRS Form 8811.
186
SECTION
11.02. Prohibited
Transactions and Activities.
None
of
the Depositor, ▇▇▇▇▇ Fargo, the Securities Administrator, the Master Servicer
or
the Trustee shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the foreclosure of a Mortgage Loan, including
but
not limited to, the acquisition or sale of a Mortgaged Property acquired by
deed
in lieu of foreclosure, (ii) the bankruptcy of REMIC I, (iii) the termination
of
REMIC I pursuant to Article X of this Agreement, (iv) a substitution pursuant
to
Article II of this Agreement or (v) a purchase of Mortgage Loans pursuant to
Article II of this Agreement), nor acquire any assets for any Trust REMIC (other
than REO Property acquired in respect of a defaulted Mortgage Loan), nor sell
or
dispose of any investments in the Collection Account, the Custodial Account
or
the Distribution Account for gain, nor accept any contributions to any Trust
REMIC after the Closing Date (other than a Qualified Substitute Mortgage Loan
delivered in accordance with Section 2.03), unless it has received an
Opinion of Counsel, addressed to the Trustee and the Securities Administrator
(at the expense of the party seeking to cause such sale, disposition,
substitution, acquisition or contribution but in no event at the expense of
the
Trustee) that such sale, disposition, substitution, acquisition or contribution
will not (a) affect adversely the status of any Trust REMIC as a REMIC or (b)
cause any Trust REMIC to be subject to a tax on “prohibited transactions” or
“contributions” pursuant to the REMIC Provisions.
SECTION
11.03. Indemnification.
(a) The
Trustee agrees to be liable for any taxes and costs incurred by the Trust Fund,
the Depositor, the Master Servicer, the Securities Administrator or the
Servicers including, without limitation, any reasonable attorneys fees imposed
on or incurred by the Trust Fund, the Depositor, the Master Servicer, the
Securities Administrator or a Servicer as a result of the Trustee’s failure to
perform its covenants set forth in this Article XI in accordance with the
standard of care of the Trustee set forth in this Agreement.
(b) ▇▇▇▇▇
Fargo agrees to indemnify the Trust Fund, the Depositor, the Master Servicer,
the Securities Administrator and the Trustee for any taxes and costs including,
without limitation, any reasonable attorneys’ fees imposed on or incurred by the
Trust Fund, the Depositor, the Master Servicer, the Securities Administrator
or
the Trustee, as a result of the Servicer’s failure to perform its covenants set
forth in Article III in accordance with the standard of care of the Servicer
set
forth in this Agreement.
(c) The
Master Servicer agrees to indemnify the Trust Fund, the Depositor, ▇▇▇▇▇ Fargo
and the Trustee for any taxes and costs including, without limitation, any
reasonable attorneys’ fees imposed on or incurred by the Trust Fund, the
Depositor, ▇▇▇▇▇ Fargo or the Trustee, as a result of the Master Servicer’s
failure to perform its covenants set forth in Article IV in accordance with
the
standard of care of the Master Servicer set forth in this
Agreement.
(d) The
Securities Administrator agrees to be liable for any taxes and costs incurred
by
the Trust Fund, the Depositor, ▇▇▇▇▇ Fargo or the Trustee including any
reasonable attorneys’ fees imposed on or incurred by the Trust Fund, the
Depositor, ▇▇▇▇▇ Fargo or the Trustee as a result of the Securities
Administrator’s failure to perform its covenants set forth in
187
this
Article XI in accordance with the standard of care of the Securities
Administrator set forth in this Agreement.
188
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, ▇▇▇▇▇ Fargo, the
Master Servicer, the Securities Administrator and the Trustee but without the
consent of any of the Certificateholders, (i) to cure any ambiguity or defect,
(ii) to correct, modify or supplement any provisions herein (including to give
effect to the expectations of Certificateholders), (iii) to ensure compliance
with Regulation AB or (iv) to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement and that such action shall not, as evidenced
by
an Opinion of Counsel delivered to the Trustee, adversely affect in any material
respect the interests of any Certificateholder; provided that any such amendment
shall be deemed not to adversely affect in any material respect the interests
of
the Certificateholders and no such Opinion of Counsel shall be required if
the
Person requesting such amendment obtains a letter from each Rating Agency
stating that such amendment would not result in the downgrading or withdrawal
of
the respective ratings then assigned to the Certificates. No amendment shall
be
deemed to adversely affect in any material respect the interests of any
Certificateholder who shall have consented thereto, and no Opinion of Counsel
shall be required to address the effect of any such amendment on any such
consenting Certificateholder.
This
Agreement may also be amended from time to time by the Depositor, ▇▇▇▇▇ Fargo,
the Master Servicer, the Securities Administrator and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights for the purpose of adding any provisions to or changing in any manner
or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed
on
any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner, other than as described in (i), without
the
consent of the Holders of Certificates of such Class evidencing at least 66%
of
the Voting Rights allocated to such Class, or (iii) modify the consents required
by the immediately preceding clauses (i) and (ii) without the consent of the
Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 12.01, Certificates registered in the
name of the Depositor or a Servicer or any Affiliate thereof shall be entitled
to Voting Rights with respect to matters affecting such Certificates. Without
limiting the generality of the foregoing, any amendment to this Agreement
required in connection with the compliance with or the clarification of any
reporting obligations described in Section 5.06 hereof shall not require
the consent of any Certificateholder and without the need for any Opinion of
Counsel or Rating Agency confirmation.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel to the effect that such amendment is permitted hereunder, that all
conditions precedent to the execution of such amendment have been satisfied,
and
that such amendment will not result in the imposition of any tax on any Trust
REMIC pursuant to the REMIC Provisions or cause any Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are
outstanding.
189
Promptly
after the execution of any such amendment the Trustee shall furnish a copy
of
such amendment to each Certificateholder.
It
shall
not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
The
cost
of any Opinion of Counsel to be delivered pursuant to this Section 12.01
shall be borne by the Person seeking the related amendment, but in no event
shall such Opinion of Counsel be an expense of the Trustee.
The
Trustee may, but shall not be obligated to enter into any amendment pursuant
to
this Section that affects its rights, duties and immunities under this
Agreement or otherwise.
Notwithstanding
any of the other provisions of this Section 12.01, none of the parties to this
Agreement shall enter into any amendment to this Agreement that could reasonably
be expected to have a material adverse effect on the interests of the Swap
Provider hereunder (excluding, for the avoidance of doubt, any amendment to
the
Pooling and Servicing Agreement that is entered into solely for the purpose
of
appointing a successor servicer, master servicer, securities administrator,
trustee or other service provider) without the prior written consent of the
Swap
Provider, which consent shall not be unreasonably withheld, conditioned or
delayed.
SECTION
12.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Depositor at the expense
of
the Certificateholders, but only upon direction of the Trustee accompanied
by an
Opinion of Counsel (which Opinion of Counsel shall not be at the expense of
the
Trustee) to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
190
SECTION
12.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No
Certificateholder shall have any right to vote (except as expressly provided
for
herein) or in any manner otherwise control the operation and management of
the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of any of the Certificates, be construed
so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to
any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee, for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder. and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatsoever by virtue of any provision of
this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit
of
all Certificateholders. For the protection and enforcement of the provisions
of
this Section, each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION
12.04. Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws without regard to conflicts of laws
principles thereof other than Section 5-1401 of the New York General
Obligations Law which shall govern.
SECTION
12.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when received if sent by facsimile, receipt
confirmed, if personally delivered at or mailed by first class mail, postage
prepaid, or by express delivery service or delivered in any other manner
specified herein, to (a) in
the
case of the Depositor, MortgageIT Securities Corp., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Secretary (facsimile number: (▇▇▇)
▇▇▇-▇▇▇▇), with a copy to Deutsche Bank Securities, Inc., ▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Attention: Legal Department (telecopy number: (▇▇▇)
▇▇▇-▇▇▇▇), or such other address or telecopy number as may hereafter be
furnished to the Servicer, the Master Servicer, the Securities Administrator
and
the Trustee in writing by the Depositor, (b) in the case of the Master Servicer
and the Securities Administrator, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
for
overnight delivery to ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: MortgageIT Securities Corp., 2007-2 (telecopy number: (▇▇▇)
▇▇▇-▇▇▇▇), or such other address or telecopy number as may hereafter be
furnished to the Trustee, the Depositor and the Servicer in writing by the
Master Servicer or the Securities Administrator, (c) in the case of the Trustee,
at the Corporate Trust Office or such other address or telecopy number as the
Trustee may hereafter be furnish to the Servicer, the Master Servicer, the
Securities Administrator and the Depositor in writing by the Trustee and (d)
in
the case of ▇▇▇▇▇ Fargo, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇ MAC# X2303-033,
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention: General Counsel MAC# X2401-06T,
or such other address or telecopy number as may hereafter be furnished to the
Trustee, the Master Servicer, the Securities Administrator and the Depositor
in
writing by ▇▇▇▇▇ Fargo. Any notice required or permitted to be given to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register; provided, that
any
notice required or permitted to be given to a Holder of a Designated Certificate
shall also be given to the related Designated Entity, at the address of such
Designated Entity specified in the notice delivered to the Securities
Administrator and the Trustee (as specified in the definition of “Designated
Entity”). Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given when mailed, whether
or
not the Certificateholder or such Designated Entity receives such notice. A
copy
of any notice required to be telecopied hereunder also shall be mailed to the
appropriate party in the manner set forth above.
191
SECTION
12.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
12.07. Notice
to
Rating Agencies.
The
Trustee shall use its best efforts promptly to provide notice to the Rating
Agencies with respect to each of the following of which a Responsible Officer
has actual knowledge:
1. Any
material change or amendment to this Agreement;
192
2. The
occurrence of any Servicer Event of Default or Master Servicer Event of Default
that has not been cured or waived;
3. The
resignation or termination of a Servicer, the Master Servicer or the
Trustee;
4. The
repurchase or substitution of Mortgage Loans pursuant to or as contemplated
by
Section 2.03 of this Agreement;
5. The
final
payment to the Holders of any Class of Certificates;
6. Any
change in the location of the Distribution Account; and
7. Any
even
that would result in the inability of the Trustee as successor to the Servicer
hereunder to make advances regarding delinquent Mortgage Loans.
In
addition, the Securities Administrator shall promptly make available to each
Rating Agency copies of each report to Certificateholders described in
Section 5.02 of this Agreement.
The
Servicer shall make available to each Rating Agency copies of the
following:
1. Each
annual statement of compliance described in Section 3.17 of this Agreement;
2. Each
assessment of compliance and attestation report described in Section 3.18
of this Agreement; and
3. Any
change in the location of the Collection Account.
Any
such
notice pursuant to this Section 12.07 shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, or by express delivery service to Standard &
Poor’s, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; to ▇▇▇▇▇’▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and to DBRS, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other addresses as the Rating Agencies may
designate in writing to the parties hereto.
SECTION
12.08. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
12.09. Grant
of
Security Interest.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Depositor to the Trustee, on behalf of the Trust and for the benefit
of
the Certificateholders, be, and be construed as, a sale of the Mortgage Loans
by
the Depositor and not a pledge of the Mortgage Loans to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
aforementioned intent of the parties, the Mortgage Loans are held to be property
of the Depositor, then, (a) it is the express intent of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the
Trustee, on behalf of the Trust and for the benefit of the Certificateholders,
to secure a debt or other obligation of the Depositor and (b)(1) this Agreement
shall also be deemed to be a security agreement within the meaning of Articles
8
and 9 of the Uniform Commercial Code as in effect from time to time in the
State
of New York; (2) the conveyance provided for in Section 2.01 shall be
deemed to be a grant by the Depositor to the Trustee, on behalf of the Trust
and
for the benefit of the Certificateholders, of a security interest in all of
the
Depositor’s right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary,
of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account and the Distribution Account,
whether in the form of cash, instruments, securities or other property; (3)
the
obligations secured by such security agreement shall be deemed to be all of
the
Depositor’s obligations under this Agreement, including the obligation to
provide to the Certificateholders the benefits of this Agreement relating to
the
Mortgage Loans and the Trust Fund; and (4) notifications to persons holding
such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts
or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee, on
behalf of the Trust and for the benefit of the Certificateholders, a security
interest in the Mortgage Loans and all other property described in clause (2)
of
the preceding sentence, for the purpose of securing to the Trustee the
performance by the Depositor of the obligations described in clause (3) of
the
preceding sentence. Notwithstanding the foregoing, the parties hereto intend
the
conveyance pursuant to Section 2.01 to be a true, absolute and
unconditional sale of the Mortgage Loans and assets constituting the Trust
Fund
by the Depositor to the Trustee, on behalf of the Trust and for the benefit
of
the Certificateholders.
193
SECTION
12.10. Survival
of Indemnification.
Any
and
all indemnities to be provided by any party to this Agreement shall survive
the
termination and resignation of any party hereto and the termination of this
Agreement.
SECTION
12.11. Servicing
Agreement.
With
respect to the Servicing Agreement, in the event of any conflicts between the
provisions of this Agreement and the provisions of the Servicing Agreement,
the
provisions of such Servicing Agreement shall control.
SECTION
12.12. Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.17, 3.18,
3.19, 4.15, 4.16, 4.17, 4.18 and 5.06 of this Agreement is to facilitate
compliance by the Sponsor, the Master Servicer, the Securities Administrator
and
the Depositor with the provisions of Regulation AB promulgated by the Commission
under the Exchange Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be
amended from time to time and subject to clarification and interpretive advice
as may be issued by the staff of the Commission from time to time. Therefore,
each of the parties agrees that (a) the obligations of the parties hereunder
shall be interpreted in such a manner as to accomplish that purpose, (b) the
parties’ obligations hereunder will be supplemented and modified as necessary to
be consistent with any such amendments, interpretive advice or guidance,
convention or consensus among active participants in the asset-backed securities
markets, advice of counsel, or otherwise in respect of the requirements of
Regulation AB and (c) the parties shall comply with requests made by the Master
Servicer, Securities Administrator, Sponsor or the Depositor for delivery of
additional or different information as the Master Servicer, Securities
Administrator, Sponsor or the Depositor may determine in good faith is necessary
to comply with the provisions of Regulation AB.
194
SECTION
12.13. Indemnification.
Each
of
the Depositor, Master Servicer, Securities Administrator, ▇▇▇▇▇ Fargo and any
Servicing Function Participant engaged by such party, respectively, shall
indemnify and hold harmless the Master Servicer, the Securities Administrator
and the Depositor, respectively, and each of its directors, officers, employees,
agents, and affiliates from and against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such party of any if its obligations under hereunder, including
particularly its obligations to provide any assessment of compliance,
attestation report, annual statement of compliance or any information, data
or
materials required to be included in any 1934 Act report, (b) any material
misstatement or omission in any information, data or materials provided by
such
party (or, in the case of the Securities Administrator or Master Servicer,
any
material misstatement or material omission in (i) any assessment of compliance,
attestation report or annual statement of compliance delivered by it, or by
any
Servicing Function Participant engaged by it, pursuant to this Agreement, or
(ii) any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or
Form 8-K Disclosure concerning the Master Servicer or the Securities
Administrator), or (c) the negligence, bad faith or willful misconduct of such
indemnifying party in connection with its performance hereunder. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Master Servicer, the Securities Administrator or the Depositor,
as
the case may be, then each such party agrees that it shall contribute to the
amount paid or payable by the Master Servicer, the Securities Administrator
or
the Depositor, as applicable, as a result of any claims, losses, damages or
liabilities incurred by such party in such proportion as is appropriate to
reflect the relative fault of the indemnified party on the one hand and the
indemnifying party on the other. This indemnification shall survive the
termination of this Agreement or the termination of any party to this
Agreement.
SECTION
12.14. The
Swap
Provider and Designated Entity as Third Party Beneficiaries.
The
Swap
Provider and the Designated Entity shall
each be an express third-party beneficiary of this Agreement to the extent
of
each such entity’s express rights to receive any payments under this Agreement
or any other express
rights of
the
Swap
Provider or the Designated Entity, as applicable, explicitly
stated in this Agreement,
and each
shall have the right to enforce its rights under this Agreement as if it were
a
party hereto.
195
IN
WITNESS WHEREOF, the Depositor, ▇▇▇▇▇ Fargo, the Master Servicer, the Securities
Administrator and the Trustee have caused their names to be signed hereto by
their respective officers thereunto duly authorized, in each case as of the
day
and year first above written.
|
MORTGAGEIT
SECURITIES CORP.,
as
Depositor
|
||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇▇▇ |
||
| Title: President | ||
| |
||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇ |
||
| Title: Treasurer | ||
|
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
a Servicer
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
||
| Title: Vice President | ||
|
HSBC
BANK USA, NATIONAL ASSOCIATION
not
in its individual capacity but solely as Trustee
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇ ▇▇▇▇▇ |
||
| Title: Assistant Vice President | ||
|
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
Master Servicer and Securities Administrator
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
| Title: Vice President | ||
|
Acknowledged and Agreed for purposes
of
Section 9.05:
|
||
|
DB
STRUCTURED PRODUCTS, INC.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||
| Title: Director | ||
|
|
||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇▇▇▇
|
||
| Title: Vice President | ||
|
Acknowledged
and Agreed for purposes of
Sections 7.08,
7.09 and 7.10:
|
||
|
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
| Title: President | ||
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of August 2007, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of MortgageIT Securities Corp., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
|
|
|
| [Notarial Seal] | My commission expires |
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of August 2007, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of MortgageIT Securities Corp., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
|
|
|
| [Notarial Seal] | My commission expires |
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of August 2007, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of ▇▇▇▇▇ Fargo Bank, National Association, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said national banking association, and
acknowledged to me that such national banking association executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
|
|
|
| [Notarial Seal] | My commission expires |
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of August 2007, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of ▇▇▇▇▇ Fargo Bank, National Association, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said limited liability company, and
acknowledged to me that such limited liability company executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
|
|
|
| [Notarial Seal] | My commission expires |
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of August 2007, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of HSBC Bank USA, National Association, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said national banking association, and
acknowledged to me that such national banking association executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
|
|
|
| [Notarial Seal] | My commission expires |
EXHIBIT
A-1
FORM
OF
CLASS A-[1][2] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
PRIOR
TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING
THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION 6.02(c)
OF THE AGREEMENT REFERRED TO HEREIN.
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED
IN
THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE
OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL
BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR NAMED HEREIN.
[FOR
THE CLASS A-1 CERTIFICATES: [VOTING RIGHTS THAT WOULD OTHERWISE BE ALLOCABLE
TO
THE HOLDERS OF THIS CERTIFICATE WILL NOT BE EXERCISABLE BY SUCH HOLDERS BUT
INSTEAD WILL BE EXERCISABLE ONLY BY AN ENTITY (OTHER THAN THE DEPOSITOR OR
THE
SPONSOR) TO BE DESIGNATED BY THE UNDERWRITER IN WRITING TO THE TRUSTEE AND
THE
SECURITIES ADMINISTRATOR. SUCH ENTITY WILL NOT HAVE ANY FUDICARY DUTIES
WITH RESPECT TO THE HOLDERS OF THIS CERTIFICATE, AND MAY EXERCISE SUCH VOTING
RIGHTS IN A MANNER THAT ADVERSELY AFFECTS THE YIELD OF THIS
CERTIFICATE.]]
A-1-1
|
Series
2007-2, Class A-[1][2]
|
Aggregate
Certificate Principal Balance of the Class A-[1][2] Certificates
as of the
Issue Date: $_____________
|
|
|
Pass-Through
Rate: [Floating][Variable]
|
Denomination:
$____________
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date: August 1,
2007
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: September 25, 2007
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.
__
|
Issue
Date: August 30, 2007
|
|
|
CUSIP:
________________
|
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, first lien, fixed-rate
mortgage loans (the “Mortgage Loans”) formed and sold by
MORTGAGEIT
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGEIT
SECURITIES CORP., THE SPONSOR, THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that ________________ is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-[1][2] Certificates as of the
Issue
Date) in that certain beneficial ownership interest evidenced by all of the
Class A-[1][2] Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the “Agreement”), among
MortgageIT Securities Corp. as depositor (hereinafter called the “Depositor”,
which term includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo
Bank,
N.A. as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇
Fargo” or a “Servicer”) and HSBC Bank USA, National Association as trustee (the
“Trustee”), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
A-1-2
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the Business
Day
immediately preceding such Distribution Date (the “Record Date”), in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-[1][2]
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class A-[1][2] Certificates
the
aggregate initial Certificate Principal Balance of which is in excess of the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class A-[1][2] Certificates, or otherwise by check
mailed by first class mail to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Securities Administrator of the pendency of such distribution
and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Securities Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall be a rate per annum [FOR
CLASS A-1 CERTIFICATES][equal to the lesser of (x) the lesser of (i) One-Month
LIBOR plus 0.50% and (ii) 10.50% per annum and (y) the Net WAC Pass-Through
Rate
with respect to the Class A-1 Certificates for such Distribution Date] [FOR
CLASS A-2 CERTIFICATES][, expressed as a percentage, (I) the numerator of which
equals (A) an amount equal to the product of (x) the excess, if any, of the
Net
WAC Pass-Through Rate with respect to the Class A-1 Certificates minus the
Class
A-1 Formula Rate and (y) the Certificate Principal Balance of
the
Class A-1 Certificates
for
such Distribution Date plus (B) an amount equal to the product of (x) the Net
WAC Pass-Through Rate with respect to the Class A-2 Certificates for such
Distribution Date and (y) the Certificate Principal Balance of the Class A-2
Certificates for such Distribution Date minus (C) the product of (x) 12 and
(y)
Class A-1 Interest Shortfall Amount for such Distribution Date and (II) the
denominator of which is the Certificate Principal Balance of the Class A-2
Certificates for such Distribution Date].
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries in respect of the Mortgage Loans and payments received pursuant
to
the Class A Swap Agreement, all as more specifically set forth herein and in
the
Agreement. As provided in the Agreement, withdrawals from the Collection Account
and the Distribution Account may be made from time to time for purposes other
than distributions to Certificateholders, such purposes including reimbursement
of advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
A-1-3
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, ▇▇▇▇▇ Fargo and
the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
▇▇▇▇▇ Fargo with the consent of the Swap Provider (with respect to matters
affecting the Class A Swap Agreement) and the Holders of Certificates entitled
to at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Prior
to
the termination of the supplemental interest trust, any Person acquiring this
Certificate shall be deemed to have made the representations in Section 6.02(c)
of the Agreement.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
▇▇▇▇▇
Fargo, GMAC Mortgage LLC (a “Servicer”; together with ▇▇▇▇▇ Fargo, the
“Servicers”) and any agent of the Depositor, the Master Servicer, the Trustee,
the Securities Administrator or a Servicer may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the Servicers nor any such agent shall be affected by notice to the
contrary.
A-1-4
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC I and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Scheduled Principal Balance of
the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
A-1-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
||
| |
|
|
| By: | ||
|
Authorized
Officer
|
||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class A-[1][2] Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
||
| |
|
|
| By: | ||
|
Authorized
Signatory
|
||
A-1-6
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
__________________________________________________________________________________
________________________________________________________________________________________________________________________.
| Dated: | ||
|
Signature
by or on behalf of assignor
|
||
|
Signature
Guaranteed
|
||
A-1-7
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
to
__________________________ for
the
account of ______________________________
account
number ______________________________________________
or,
if mailed by check, to ____________________ Applicable
statements should be mailed to ________________________________
______________________________________________________________________
This
information is provided by
__________________________________________________________ assignee
named above, or _________________________________________ its
agent.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
CLASS B-[1][2][3]
CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES [[,/AND] CLASS B-1
CERTIFICATES] [AND CLASS B-2 CERTIFICATES] TO THE EXTENT DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
SET FORTH IN SECTION 6.02(c) OF THE AGREEMENT REFERRED TO
HEREIN.
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED
IN
THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE
OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL
BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR NAMED HEREIN.
A-2-1
|
Series
2007-2, Class B-[1][2][3]
|
Aggregate
Certificate Principal Balance of the Class Class B-[1][2][3] Certificates
as of the Issue Date: $______________
|
|
|
Pass-Through
Rate: Variable
|
Denomination:
$______________
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: August 1, 2007
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: September 25, 2007
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.___
|
Issue
Date: August 30, 2007
|
|
|
CUSIP:_________________
|
MORTGAGEIT
SECURITIES CORP. MORTGAGE LOAN TRUST, SERIES 2007-2
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, first lien, fixed-rate
mortgage loans (the “Mortgage Loans”) formed and sold by
MORTGAGEIT
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGEIT
SECURITIES CORP., THE SPONSOR, THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that _____________________ is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class B-[1][2][3]Certificates
as
of the Issue Date) in that certain beneficial ownership interest evidenced
by
all of the Class Class B-[1][2][3] Certificates in REMIC III created pursuant
to
a Pooling and Servicing Agreement, dated as specified above (the “Agreement”),
among MortgageIT Securities Corp. as depositor (hereinafter called the
“Depositor”, which term includes any successor entity under the Agreement),
▇▇▇▇▇ Fargo Bank, N.A. as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”), ▇▇▇▇▇ Fargo Bank, N.A. as a
servicer (“▇▇▇▇▇ Fargo” or a “Servicer”) and HSBC Bank USA, National Association
as trustee (the “Trustee”), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
A-2-2
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the last Business
Day of the calendar month immediately preceding the month in which the related
Distribution Date occurs (the “Record Date”), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-[1][2][3] Certificates on such
Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class B-[1][2][3] Certificates
the aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class B-[1][2][3] Certificates, or otherwise by check
mailed by first class mail to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Securities Administrator of the pendency of such distribution
and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Securities Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the weighted average Net Mortgage Rates of the Mortgage Loans.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries in respect of the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Collection Account and the Distribution Account may be made from time to time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, ▇▇▇▇▇ Fargo and
the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
and
▇▇▇▇▇ Fargo with the consent of the Swap Provider (with respect to matters
affecting the Class A Swap Agreement) and the Holders of Certificates entitled
to at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
A-2-3
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Any
transferee of this Certificate shall be deemed to have made the representations
set forth in Section 6.02(c) of the Agreement.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
▇▇▇▇▇
Fargo, GMAC Mortgage LLC (a “Servicer”; together with ▇▇▇▇▇ Fargo, the
“Servicers”) and any agent of the Depositor, the Master Servicer, the Trustee,
the Securities Administrator or a Servicer may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the Servicers nor any such agent shall be affected by notice to the
contrary.
A-2-4
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC I and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Scheduled Principal Balance of
the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator by manual signature, this Certificate shall not be entitled to
any
benefit under the Agreement or be valid for any purpose.
A-2-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
| Dated: | ||
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
||
| |
|
|
| By: | ||
|
Authorized
Officer
|
||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class B-[1][2][3] Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
||
| |
|
|
| By: | ||
|
Authorized
Signatory
|
||
A-2-6
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to _____% evidenced by the within Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
____________________________.
|
Dated:
|
||
|
Signature
by or on behalf of assignor
|
||
|
Signature
Guaranteed
|
||
A-2-7
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
to
__________________________ for
the
account of ___________________________________________
account
number __________________________________________
or,
if mailed by check, to ____________________ Applicable
statements should be mailed to
_____________________________________________________________
This
information is provided by __________________________________________________
assignee
named above, or _______________________________________________
its
agent.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
CLASS B-[4][5][6] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES [[,/AND] CLASS B-1
CERTIFICATES [,/AND] CLASS B-2 CERTIFICATES[,/AND] CLASS B-3 CERTIFICATES
[,/AND] CLASS B-4 CERTIFICATES [AND] CLASS B-5 CERTIFICATES TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED
IN
THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE
OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL
BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR NAMED HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER ANY STATE SECURITIES
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN
COMPLIANCE WITH THE ACT AND OTHER APPLICABLE LAWS AND (1) OUTSIDE OF THE UNITED
STATES WITHIN THE MEANING OF AND IN COMPLIANCE WITH REGULATION S UNDER THE
ACT
(“REGULATION S”), OR (2) WITHIN THE UNITED STATES TO (A) “QUALIFIED
INSTITUTIONAL BUYERS” WITHIN THE MEANING OF AND IN COMPLIANCE WITH RULE 144A
UNDER THE ACT (“RULE 144A”) OR (B) TO INSTITUTIONAL INVESTORS THAT ARE
“ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
“REGULATION D” UNDER THE ACT.
A-3-1
[THIS
CERTIFICATE IS A REGULATION S TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF
REGULATION S UNDER THE ACT. PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER
OF
(I) THE COMMENCEMENT OF THE OFFERING OF THE OFFERED CERTIFICATES AND (II) THE
CLOSING DATE, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT.]
[NO
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREIN UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE AGREEMENT (AS
DEFINED HEREIN).]
[THE
HOLDER OF THIS REGULATION S PERMANENT GLOBAL CERTIFICATE BY ITS ACCEPTANCE
HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE WITHIN
THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE
ACT)
PRIOR TO THE DATE WHICH IS THE LATER OF (I) 40 DAYS AFTER THE LATER OF THE
CLOSING DATE AND (II) THE DATE ON WHICH THE REQUISITE CERTIFICATIONS ARE DUE
TO
AND PROVIDED TO THE TRUSTEE AND SECURITIES ADMINISTRATOR PURSUANT TO THE
AGREEMENT (AS DEFINED BELOW), EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT.]
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR SECTION 4975 OF THE CODE, ANY
PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY PERSON
USING “PLAN ASSETS” TO ACQUIRE THIS CERTIFICATE SHALL BE MADE EXCEPT IN
ACCORDANCE WITH SECTION 6.02(c) OF THE AGREEMENT REFERRED TO
HEREIN.
A-3-2
|
Series
2007-2, Class B-[4][5][6]
|
Aggregate
Certificate Principal Balance of the Class B-[4][5][6] Certificates
as of
the Issue Date: $______________
|
|
|
Pass-Through
Rate: Variable
|
Denomination:
$______________
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: August 1, 2007
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: September 25, 2007
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.___
|
Issue
Date: August 30, 2007
|
|
|
CUSIP:_________________
|
MORTGAGEIT
SECURITIES CORP. MORTGAGE LOAN TRUST, SERIES 2007-2
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, first lien, fixed-rate
mortgage loans (the “Mortgage Loans”) formed and sold by
MORTGAGEIT
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGEIT
SECURITIES CORP., THE SPONSOR, THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that _____________________ is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class B-[4][5][6] Certificates
as
of the Issue Date) in that certain beneficial ownership interest evidenced
by
all of the Class B-[4][5][6] Certificates in REMIC III created pursuant to
a
Pooling and Servicing Agreement, dated as specified above (the “Agreement”),
among MortgageIT Securities Corp. as depositor (hereinafter called the
“Depositor”, which term includes any successor entity under the Agreement),
▇▇▇▇▇ Fargo Bank, N.A. as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”), ▇▇▇▇▇ Fargo Bank, N.A. as a
servicer (“▇▇▇▇▇ Fargo” or a “Servicer”) and HSBC Bank USA, National Association
as trustee (the “Trustee”), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
A-3-3
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the last Business
Day of the calendar month immediately preceding the month in which the related
Distribution Date occurs (the “Record Date”), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-[4][5][6] Certificates on such
Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class B-[4][5][6] Certificates
the aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class B-[4][5][6] Certificates, or otherwise by check
mailed by first class mail to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Securities Administrator of the pendency of such distribution
and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Securities Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the weighted average Net Mortgage Rates of the Mortgage Loans.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries in respect of the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Collection Account and the Distribution Account may be made from time to time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, ▇▇▇▇▇ Fargo and
the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
and
▇▇▇▇▇ Fargo with the consent of the Swap Provider (with respect to matters
affecting the Class A Swap Agreement) and the Holders of Certificates entitled
to at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
A-3-4
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Act, and an effective
registration or qualification under applicable state securities laws, or is
made
in a transaction that does not require such registration or qualification.
In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon
Rule
144A under the Act, written certifications from the Holder of the Certificate
desiring to effect the transfer, and from such Holder’s prospective transferee,
substantially in the forms attached to the Agreement as Exhibit B-1, (ii) if
such transfer is purportedly being made in reliance upon Regulation S under
the
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer and from such Holder’s prospective transferee, substantially
in the form attached to the Agreement as Exhibit B-2, (iii) if such transfer
is
purportedly being made in reliance upon Rule 501(a) under the Act, written
certifications from the Holder of the Certificate desiring to effect the
transfer and from such Holder’s prospective transferee, substantially in the
form attached to the Agreement as Exhibit B-3 and (iv) in all other cases,
an
Opinion of Counsel satisfactory to it that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer
or the Securities Administrator in their respective capacities as such),
together with copies of the written certification(s) of the Holder of the
Certificate desiring to effect the transfer and/or such Holder’s prospective
transferee upon which such Opinion of Counsel is based. None of the Depositor,
the Trustee or the Securities Administrator is obligated to register or qualify
the Class of Certificates specified on the face hereof under the Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of such Certificates without registration
or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor, the Master Servicer
and the Securities Administrator against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
A-3-5
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 6.02(c) of the Agreement.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
▇▇▇▇▇
Fargo, GMAC Mortgage LLC (a “Servicer”; together with ▇▇▇▇▇ Fargo, the
“Servicers”) and any agent of the Depositor, the Master Servicer, the Trustee,
the Securities Administrator or a Servicer may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC I and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Scheduled Principal Balance of
the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator by manual signature, this Certificate shall not be entitled to
any
benefit under the Agreement or be valid for any purpose.
A-3-6
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
||
| |
|
|
| By: | ||
|
Authorized
Officer
|
||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class B-[4][5][6] Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
||
| |
|
|
| By: | ||
|
Authorized
Signatory
|
||
A-3-7
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to _____% evidenced by the within Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________
_____________________________________________________________________________________.
|
Dated:
|
||
|
Signature
by or on behalf of assignor
|
||
|
Signature
Guaranteed
|
||
A-3-8
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
to
__________________________ for
the
account of ______________________________
account
number ______________________________________________
or,
if mailed by check, to ____________________ Applicable
statements should be mailed to
______________________________________________________________________________________
This
information is provided by
__________________________________________________________ assignee
named above, or _______________________________________ its
agent.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
CLASS R CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES,
THIS CERTIFICATE REPRESENTS THE SOLE “RESIDUAL INTEREST” IN EACH “REAL ESTATE
MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO
HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 6.02 OF THE AGREEMENT.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE SECURITIES
ADMINISTRATOR THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY
POSSESSION THEREOF, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY
OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED
IN SECTION 521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER
1 OF
THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION
511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE
CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL
HEREINAFTER BE REFERRED TO AS A “DISQUALIFIED ORGANIZATION”) OR (4) AN AGENT OF
A DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE
THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL
NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER
OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO
THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 6.02(d) OF THE
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION
IS
PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS
CERTIFICATE.
A-4-1
NO
PERSON MAY ACQUIRE THIS CERTIFICATE DIRECTLY OR INDIRECTLY BY, ON BEHALF OF,
OR
WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, UNLESS
IT HAS PROVIDED THE OPINION OF COUNSEL REFERENCED IN SECTION 6.02(c) OF THE
AGREEMENT REFERRED TO HEREIN.
A-4-2
|
Series
2007-2, Class R
|
Aggregate
Percentage Interest of the Class R Certificates as of the Issue Date:
100.00%
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: August 1, 2007
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: September 25, 2007
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No
__
|
Issue
Date: August 30, 2007
|
MORTGAGEIT
SECURITIES CORP. MORTGAGE LOAN TRUST, SERIES 2007-2
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, first lien, fixed-rate
mortgage loans (the “Mortgage Loans”) formed and sold by
MORTGAGEIT
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGEIT
SECURITIES CORP., THE SPONSOR, THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that _______________ is the registered owner of a Percentage Interest
set forth above in that certain beneficial ownership interest evidenced by
all
of the Class R Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the “Agreement”), among
MortgageIT Securities Corp. as depositor (hereinafter called the “Depositor”,
which term includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo
Bank,
N.A. as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇
Fargo” or a “Servicer”) and HSBC Bank USA, National Association as trustee (the
“Trustee”), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th day of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (a “Distribution Date”), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the last Business Day of the calendar month immediately
preceding the month in which the related Distribution Date occurs (the “Record
Date”), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of
Class R Certificates on such Distribution Date pursuant to the
Agreement.
A-4-3
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class R Certificates, or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Securities Administrator of the pendency
of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Securities Administrator for that
purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing the Percentage Interest in
the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries in respect of the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Collection Account and the Distribution Account may be made from time to time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, ▇▇▇▇▇ Fargo and
the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
▇▇▇▇▇ Fargo with the consent of the Swap Provider (with respect to matters
affecting the Class A Swap Agreement) and the Holders of Certificates entitled
to at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
A-4-4
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Securities Administrator shall require receipt of (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Holder of the Certificate desiring to effect the
transfer, and from such Holder’s prospective transferee, substantially in the
forms attached to the Agreement as Exhibit B-1, (ii) if such transfer is
purportedly being made in reliance upon Rule 501(a) under the 1933 Act, written
certifications from the Holder of the Certificate desiring to effect the
transfer and from such Holder’s prospective transferee, substantially in the
form attached to the Agreement as Exhibit B-3, (iii) a transfer affidavit and
agreement substantially in the form attached to the Agreement as Exhibit B-4
and
(iv) in all other cases, an Opinion of Counsel satisfactory to it that such
transfer may be made without such registration or qualification (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor, the
Trustee, the Master Servicer or the Securities Administrator in their respective
capacities as such), together with copies of the written certification(s) of
the
Holder of the Certificate desiring to effect the transfer and/or such Holder’s
prospective transferee upon which such Opinion of Counsel is based. None of
the
Depositor, the Trustee or the Securities Administrator is obligated to register
or qualify the Class of Certificates specified on the face hereof under the
1933
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of
this
Certificate shall be required to indemnify the Trustee, the Depositor, the
Master Servicer and the Securities Administrator against any liability that
may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No
transfer of this Certificate shall be made except in accordance with Section
6.02 of the Agreement.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Securities Administrator (i) an
affidavit to the effect that such transferee is any Person other than a
Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R Certificates have been designated as
representing the beneficial ownership of the residual interests in each of
REMIC
I, REMIC II and REMIC III, (B) it will include in its income a pro
rata
share of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Person shall not
be
deemed to be a Certificateholder for any purpose, including, but not limited
to,
the receipt of distributions in respect of this Certificate.
A-4-5
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to have
consented to the provisions of Section 6.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause any portion of the
Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon any
REMIC.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicer and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or the Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicer nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC I and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Scheduled Principal Balance of
the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
A-4-6
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
A-4-7
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
|
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|
| |
|
|
| By: | ||
|
Authorized
Officer
|
||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class R Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
||
| |
|
|
| By: | ||
|
Authorized
Signatory
|
||
A-4-8
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
||||
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
|
Additional
abbreviations may also be used though not in the above
list.
|
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto _____________________________________________________________________________________________________________
|
|
| _____________________________________________________________________________________________________________ | |
| _____________________________________________________________________________________________________________ |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to _____% evidenced by the within Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
___________________________________________
| ____________________________________________________________________________________________________________ |
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
A-4-9
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
__________________________ for
the
account of __________________________________
account
number ______________________________________________
or,
if mailed by check, to ____________________ Applicable
statements should be mailed to
________________________________________________________
This
information is provided by
__________________________________________________________ assignee
named above, or _________________________________________ its
agent.
▇-▇-▇▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
TRANSFEROR REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust MHL 2007-2
|
Re:
|
MortgageIT
Securities Corp. Mortgage Loan Trust, Series 2007-2 Mortgage Pass-Through
Certificates
Class
[B-4][B-5][B-6][R] Certificates
|
Ladies
and Gentlemen:
In
connection with the transfer by ______________________ (the “Transferor”) to
___________________ (the “Transferee”) of the captioned mortgage pass-through
certificates (the “Certificates”), the Transferor hereby certifies as
follows:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
(e)
has taken any other action, that (in the case of each of subclauses (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933, as amended (the “1933 Act”), or would render the
disposition of any Certificate a violation of Section 5 of the 1933 Act or
any
state securities law or would require registration or qualification pursuant
thereto. The Transferor will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate. The Transferor will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions
of
that certain Pooling and Servicing Agreement, dated as of August 1, 2007,
among MortgageIT Securities Corp. as Depositor, ▇▇▇▇▇ Fargo Bank, N.A. as Master
Servicer and Securities Administrator, ▇▇▇▇▇ Fargo Bank, N.A. as a servicer
(“▇▇▇▇▇ Fargo”) and HSBC Bank USA, National Association as trustee (the
“Trustee”) (the “Pooling and Servicing Agreement”), pursuant to which Pooling
and Servicing Agreement the Certificates were issued.
B-1-1
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Pooling and Servicing Agreement.
|
Very
truly yours,
|
||
|
[Transferor]
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
B-1-2
FORM
OF
TRANSFEREE REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust MHL 2007-2
|
Re:
|
MortgageIT
Securities Corp. Mortgage Loan Trust, Series 2007-2
Mortgage
Pass-Through Certificates
Class
[B-4][B-5][B-6][R] Certificates
|
Ladies
and Gentlemen:
In
connection with the purchase from ______________________________ (the
“Transferor”) on the date hereof of the captioned mortgage pass-through
certificates (the “Certificates”), (the “Transferee”) hereby certifies as
follows:
1. The
Transferee is a “qualified institutional buyer” as that term is defined in Rule
144A (“Rule 144A”) under the Securities Act of 1933 (the “1933 Act”) and has
completed either of the forms of certification to that effect attached hereto
as
Annex 1 or Annex 2. The Transferee is aware that the sale to it is being made
in
reliance on Rule 144A. The Transferee is acquiring the Certificates for its
own
account or for the account of a qualified institutional buyer, and understands
that such Certificate may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the 1933
Act.
2. The
Transferee has been furnished with all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement
referred to below, and (d) any credit enhancement mechanism associated with
the
Certificates, that it has requested.
3. The
Transferee: (a) is not an employee benefit plan or other plan subject to the
prohibited transaction provisions 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”) (each, a “Plan”), or any other person (including
an investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with “plan
assets” of any Plan within the meaning of the Department of Labor (“DOL”)
regulation at 29 C.F.R. § 2510.3-101, (b) for certificates other than the Class
B-4, Class B-5 or Class B-6 Certificates, has provided the Securities
Administrator with an Opinion of Counsel on which the Trustee, the Depositor,
the Master Servicer, the Securities Administrator and the Servicers may rely,
acceptable to and in form and substance satisfactory to the Securities
Administrator to the effect that the purchase of Certificates is permissible
under applicable law, will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Trust Fund, the Trustee, the Depositor, the Master Servicer, the Securities
Administrator or the Servicers to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in the Pooling and Servicing Agreement or (c) for Class
B-4,
Class B-5 or Class B-6 Certificates represents that the requirements of Section
6.02(c) of the Pooling and Servicing Agreement are met.
B-1-3
In
addition, the Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Trustee, the Securities Administrator, the
Master Servicer and the Servicers that the Transferee will not transfer such
Certificates to any Plan or person unless such Plan or person meets the
requirements set forth in paragraph 3 above.
All
capitalized terms used but not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement, dated as
of
August 1, 2007, among MortgageIT Securities Corp. as Depositor, ▇▇▇▇▇ Fargo
Bank, N.A. as Master Servicer and Securities Administrator, ▇▇▇▇▇ Fargo Bank,
N.A. as a Servicer (“▇▇▇▇▇ Fargo”), and HSBC Bank USA, National Association as
Trustee, pursuant to which the Certificates were issued.
|
[TRANSFEREE]
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
▇-▇-▇
▇▇▇▇▇
▇ ▇▇ ▇▇▇▇▇▇▇ ▇-▇
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator, with
respect to the mortgage pass-through certificates (the “Certificates”) described
in the Transferee Certificate to which this certification relates and to which
this certification is an Annex:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the entity purchasing the
Certificates (the “Transferee”).
2. In
connection with purchases by the Transferee, the Transferee is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because (i) the Transferee owned and/or invested on a
discretionary basis $________________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Transferee’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in
the
category marked below.
|
___
|
Corporation,
etc.
The Transferee is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or any organization described in Section 501(c)(3)
of
the Internal Revenue Code of 1986.
|
|
|
___
|
Bank.
The Transferee (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia,
the
business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official
or is a
foreign bank or equivalent institution, and (b) has an audited net
worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a
copy of which is attached hereto.
|
|
|
___
|
Savings
and Loan.
The Transferee (a) is a savings and loan association, building and
loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a
copy of which is attached hereto.
|
| 1 |
Transferee
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Transferee is a dealer, and, in that case, Transferee
must own and/or invest on a discretionary basis at least $10,000,000
in
securities.
|
B-1-5
|
___
|
Broker-dealer.
The Transferee is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.
|
|
|
|
||
|
___
|
Insurance
Company.
The Transferee is an insurance company whose primary and predominant
business activity is the writing of insurance or the reinsuring of
risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State,
territory or the District of Columbia.
|
|
|
___
|
State
or Local Plan.
The Transferee is a plan established and maintained by a State, its
political subdivisions, or any agency or instrumentality of the State
or
its political subdivisions, for the benefit of its
employees.
|
|
|
___
|
ERISA
Plan.
The Transferee is an employee benefit plan within the meaning of
Title I
of the Employee Retirement Income Security Act of 1974, as
amended.
|
|
|
___
|
Investment
Advisor
The Transferee is an investment advisor registered under the Investment
Advisers Act of 1940.
|
3. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee,
if
the Transferee is a dealer, (iii) securities issued or guaranteed by the U.S.
or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii)
securities owned but subject to a repurchase agreement and (viii) currency,
interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, the Transferee used the cost of
such
securities to the Transferee and did not include any of the securities referred
to in the preceding paragraph. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee’s direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934.
5. The
Transferee acknowledges that it is familiar with Rule 144A and understands
that
the Transferor and other parties related to the Certificates are relying and
will continue to rely on the statements made herein because one or more sales
to
the Transferee may be in reliance on Rule 144A.
|
___
|
___
|
Will
the Transferee be purchasing the Certificates
|
|
Yes
|
No
|
only
for the Transferee’s own account?
|
B-1-6
6. If
the
answer to the foregoing question is “no”, the Transferee agrees that, in
connection with any purchase of securities sold to the Transferee for the
account of a third party (including any separate account) in reliance on Rule
144A, the Transferee will only purchase for the account of a third party that
at
the time is a “qualified institutional buyer” within the meaning of Rule 144A.
In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently meets
the definition of “qualified institutional buyer” set forth in Rule
144A.
7. The
Transferee will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice
is
given, the Transferee’s purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above,
the
Transferee agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
|
Dated:
|
||
|
Print
Name of Transferee
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
▇-▇-▇
▇▇▇▇▇
▇ ▇▇ ▇▇▇▇▇▇▇ ▇-▇
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That Are Registered Investment Companies]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator, with
respect to the mortgage pass-through certificates (the “Certificates”) described
in the Transferee Certificate to which this certification relates and to which
this certification is an Annex:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the entity purchasing the Certificates (the
“Transferee”) or, if the Transferee is a “qualified institutional buyer” as that
term is defined in Rule 144A under the Securities Act of 1933 (“Rule 144A”)
because the Transferee is part of a Family of Investment Companies (as defined
below), is such an officer of the investment adviser (the
“Adviser”).
2. In
connection with purchases by the Transferee, the Transferee is a “qualified
institutional buyer” as defined in Rule 144A because (i) the Transferee is an
investment company registered under the Investment Company Act of 1940, and
(ii)
as marked below, the Transferee alone, or the Transferee’s Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most recent
fiscal year. For purposes of determining the amount of securities owned by
the
Transferee or the Transferee’s Family of Investment Companies, the cost of such
securities was used.
|
___
|
The
Transferee owned $________________________ in securities (other than
the
excluded securities referred to below) as of the end of the Transferee’s
most recent fiscal year (such amount being calculated in accordance
with
Rule 144A).
|
|
___
|
The
Transferee is part of a Family of Investment Companies which owned
in the
aggregate $_______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most
recent fiscal year (such amount being calculated in accordance with
Rule
144A).
|
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Transferee or are part of the Transferee’s Family of Investment Companies, (ii)
securities issued or guaranteed by the U.S. or any instrumentality thereof,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a
repurchase agreement and (vii) currency, interest rate and commodity
swaps.
B-1-8
5. The
Transferee is familiar with Rule 144A and understands that the parties to which
this certification is being made are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee will be
in
reliance on Rule 144A. In addition, the Transferee will only purchase for the
Transferee’s own account.
6. The
undersigned will notify the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice, the
Transferee’s purchase of the Certificates will constitute a reaffirmation of
this certification by the undersigned as of the date of such
purchase.
|
Dated:
|
||
|
Print
Name of Transferee or Advisor
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
IF
AN ADVISER:
|
||
|
Print
Name of Transferee
|
||
B-1-9
FORM
OF
TRANSFEREE REPRESENTATION LETTER
The
undersigned hereby certifies on behalf of the purchaser named below (the
“Purchaser”) as follows:
1. I
am an
executive officer of the Purchaser.
2. The
Purchaser is a “qualified institutional buyer”, as defined in Rule 144A, (“Rule
144A”) under the Securities Act of 1933, as amended.
3. As
of the
date specified below (which is not earlier than the last day of the Purchaser’s
most recent fiscal year), the amount of “securities”, computed for purposes of
Rule 144A, owned and invested on a discretionary basis by the Purchaser was
in
excess of $100,000,000.
Name
of
Purchaser
______________________________________________________________________________
By:
(Signature)
_________________________________________________________________________________
Name
of
Signatory
_______________________________________________________________________________
Title __________________________________________________________________________________________
Date
of
this certificate
_____________________________________________________________________________
Date
of
information provided in paragraph 3
_____________________________________________________________
▇-▇-▇▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
REGULATION S TRANSFER CERTIFICATE
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust MHL 2007-2
|
Re:
|
MortgageIT
Securities Corp. Mortgage Loan Trust, Series 2007-2 Mortgage Pass-Through
Certificates
Class
[B-4][B-5][B-6] Certificates
|
Ladies
and Gentlemen:
Reference
is hereby made to the Pooling and Servicing Agreement (the “Agreement”), dated
as of August 1, 2007, among MortgageIT Securities Corp. (the “Depositor”),
▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the “Master Servicer”) and
securities administrator (the “Securities Administrator”), ▇▇▇▇▇ Fargo Bank,
N.A., as a servicer, and HSBC Bank USA, National Association, as trustee (the
“Trustee”). Capitalized terms used herein but not defined herein shall have the
meanings assigned thereto in the Agreement.
This
letter relates to U.S. $[__________] Certificate Principal Balance of Class
[B-4][B-5][B-6] Certificates (the “Certificates”) which are held in the name of
[name of transferor] (the “Transferor”) to effect the transfer of the
Certificates to a person who wishes to take delivery thereof in the form of
an
equivalent beneficial interest [name of transferee] (the
“Transferee”).
In
connection with such request, the Transferor hereby certifies that such transfer
has been effected in accordance with the transfer restrictions set forth in
the
Agreement relating to the Certificates and that the following additional
requirements (if applicable) were satisfied:
(a) the
offer
of the Certificates 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 were made in contravention of the requirements of
Rule
903(b) or 904(b) of Regulation S, as applicable;
(d) the
transfer or exchange is not part of a plan or scheme to evade the registration
requirements of the Securities Act;
B-2-1
(e) the
Transferee is not a U.S. Person, as defined in Regulation S under the Securities
Act;
(f) the
transfer was made in accordance with the applicable provisions of Rule 903(b)(2)
or (3) or Rule 904(b)(1), as the case may be; and
(g) the
Transferee understands that the Certificates have not been and will not be
registered under the Securities Act, that any offers, sales or deliveries of
the
Certificates purchased by the Transferee in the United States or to U.S. persons
prior to the date that is 40 days after the later of (i) the commencement of
the
offering of the Certificates and (ii) the Closing Date, may constitute a
violation of United States law, and that (x) distributions of principal and
interest and (y) the exchange of beneficial interests in a Temporary Regulation
S Global Certificate for beneficial interests in the related Permanent
Regulation S Global Certificate, in each case, will be made in respect of such
Certificates only following the delivery by the Holder of a certification of
non-U.S. beneficial ownership, at the times and in the manner set forth in
the
Agreement.
B-2-2
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.
|
[Name
of Transferor]
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
TRANSFEROR REPRESENTATION LETTER
____________,
20__
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust MHL 2007-2
|
Re:
|
MortgageIT
Securities Corp. Mortgage Loan Trust, Series 2007-2
Mortgage
Pass-Through Certificates,
Class
[B-4][B-5][B-6][R] Certificates
|
Ladies
and Gentlemen:
In
connection with the transfer by ________________ (the “Transferor”) to
__________________________ (the “Transferee”) of the captioned mortgage
pass-through certificates (the “Certificates”), the Transferor hereby certifies
as follows:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the “Act’), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Transferor will not act,
in
any manner set forth in the foregoing sentence with respect to any Certificate.
The Seller has not and will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement, dated as of August 1, 2007, among MortgageIT Securities
Corp., ▇▇▇▇▇ Fargo Bank, N.A., as master servicer and securities administrator,
▇▇▇▇▇ Fargo Bank, N.A. as servicer and HSBC Bank USA, National
Association.
|
Very
truly yours,
|
||
|
(Transferor)
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
B-3-1
FORM
OF
TRANSFEREE LETTER
_______________,
20__
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust MHL 2007-2
|
Re:
|
MortgageIT
Securities Corp. Mortgage Loan Trust, Series 2007-2
Mortgage
Pass-Through Certificates,
Class
[B-4][B-5][B-6][R] Certificates
|
Ladies
and Gentlemen:
In
connection with the transfer by ______________________ (the “Transferor”) to
__________________________ (the “Transferee”) of the captioned mortgage
pass-through certificates (the “Certificates”), the Transferee hereby certifies
as follows:
1. The
Transferee understands that (a) the Certificates have not been and will not
be
registered or qualified under the Securities Act of 1933, as amended (the “Act”)
or any state securities law, (b) MortgageIT Securities Corp. (the “Depositor”)is
not required to so register or qualify the Certificates, (c) the Certificates
may be resold only if registered and qualified pursuant to the provisions of
the
Act or any state securities law, or if an exemption from such registration
and
qualification is available, (d) the Pooling and Servicing Agreement, dated
as of
August 1, 2007, among the Depositor, as depositor, ▇▇▇▇▇ Fargo Bank, N.A.,
as master servicer (the “Master Servicer”) and securities administrator (the
“Securities Administrator”), ▇▇▇▇▇ Fargo Bank, N.A., as a servicer (“▇▇▇▇▇
Fargo”) and HSBC Bank USA, National Association, as trustee (the “Trustee”)
contains restrictions regarding the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing effect.
2. The
Transferee is acquiring the Certificates for its own account for investment
only
and not with a view to or for sale in connection with any distribution thereof
in any manner that would violate the Act or any applicable state securities
laws.
3. The
Transferee is (a) a substantial, sophisticated institutional investor having
such knowledge and experience in financial and business matters, and, in
particular, in such matters related to securities similar to the Certificates,
such that it is capable of evaluating the merits and risks of investment in
the
Certificates, (b) able to bear the economic risks of such an investment and
(c)
an “accredited investor” within the meaning of Rule 501(a) promulgated pursuant
to the Act.
4. The
Transferee has been furnished with, and has had an opportunity to review (a)
a
copy of the Pooling and Servicing Agreement and (b) such other information
concerning the Certificates, the Mortgage Loans and the Depositor as has been
requested by the Transferee from the Depositor or the Transferor and is relevant
to the Transferee’s decision to purchase the Certificates. The Transferee has
had any questions arising from such review answered by the Depositor or the
Transferor to the satisfaction of the Transferee.
B-3-2
5. The
Transferee has not and will not nor has it authorized or will it authorize
any
person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security
to
any person in any manner, (b) solicit any offer to buy or to accept a pledge,
disposition of other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest
in
any Certificate or any other similar security with any person in any manner,
(d)
make any general solicitation by means of general advertising or in any other
manner or (e) take any other action, that (as to any of (a) through (e) above)
would constitute a distribution of any Certificate under the Act, that would
render the disposition of any Certificate a violation of Section 5 of the 1933
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Transferee will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions
of
the Pooling and Servicing Agreement.
6. The
Transferee: (a) is not an employee benefit plan or other plan subject to the
prohibited transaction provisions 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”) (each, a “Plan”), or any other person (including
an investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with “plan
assets” of any Plan within the meaning of the Department of Labor (“DOL”)
regulation at 29 C.F.R. § 2510.3-101 or (b)(1)for Certificates other than the
Class B-4, Class B-5 and Class B-6 Certificates, has provided the Securities
Administrator with an Opinion of Counsel on which the Depositor, the Master
Servicer, the Securities Administrator, the Trustee, ▇▇▇▇▇ Fargo and GMAC
Mortgage, LLC (together with ▇▇▇▇▇ Fargo, the “Servicers”) may rely, acceptable
to and in form and substance satisfactory to the Securities Administrator to
the
effect that the purchase of Certificates is permissible under applicable law,
will not constitute or result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Trust Fund, the
Trustee, the Master Servicer, the Securities Administrator, the Depositor or
the
Servicers to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken in
the
Pooling and Servicing Agreement or (2) for Class B-4, Class B-5 and Class B-6
Certificates, represents the requirements of Section 6.02(c) of the Pooling
and
Servicing Agreement are met.
In
addition, the Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Trustee, the Securities Administrator, the
Master Servicer and the Servicers that the Transferee will not transfer such
Certificates to any Plan or person unless such Plan or person meets the
requirements set forth in paragraph 6 above.
|
Very
truly yours,
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
TRANSFER
AFFIDAVIT AND AGREEMENT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
___________________________
being duly sworn, deposes, represents and warrants as follows:
|
1.
|
I
am a _____________________ of _______________________________ (the
“Owner”) a corporation duly organized and existing under the laws of
_________________________, the record owner of MortgageIT Securities
Corp.
Mortgage Loan Trust, Series 2007-2 Mortgage Pass-Through Certificates,
Class R Certificates (the “Class R Certificates”), on behalf of whom I
make this affidavit and agreement. Capitalized terms used but not
defined
herein have the respective meanings assigned thereto in the Pooling
and
Servicing Agreement, dated as of May 1, 2007, among MortgageIT
Securities Corp., ▇▇▇▇▇ Fargo Bank, N.A., as master servicer and
securities administrator, ▇▇▇▇▇ Fargo Bank, N.A. as servicer and
HSBC Bank
USA, National Association, pursuant to which the Class R Certificates
were
issued.
|
|
2.
|
The
Owner (i) is and will be a “Permitted Transferee” as of
____________________. ____ and (ii) is acquiring the Class R Certificates
for its own account or for the account of another Owner from which
it has
received an affidavit in substantially the same form as this affidavit.
A
“Permitted Transferee” is any person other than a “disqualified
organization” or a possession of the United States. For this purpose, a
“disqualified organization” means the United States, any state or
political subdivision thereof, any agency or instrumentality of any
of the
foregoing (other than an instrumentality all of the activities of
which
are subject to tax and, except for the Federal Home Loan Mortgage
Corporation, a majority of whose board of directors is not selected
by any
such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government
or organization, any real electric or telephone cooperative, or any
organization (other than certain farmers’ cooperatives) that is generally
exempt from federal income tax unless such organization is subject
to the
tax on unrelated business taxable
income.
|
|
3.
|
The
Owner is aware (i) of the tax that would be imposed on transfers
of the
Class R Certificates to disqualified organizations under the Internal
Revenue Code of 1986 that applies to all transfers of the Class R
Certificates after April 31, 1988; (ii) that such tax would be on
the
transferor or, if such transfer is through an agent (which person
includes
a broker, nominee or middleman) for a non-Permitted Transferee, on
the
agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to
such
person an affidavit that the transferee is a Permitted Transferee
and, at
the time of transfer, such person does not have actual knowledge
that the
affidavit is false; and (iv) that each of the Class R Certificates
may be
a “noneconomic residual interest” within the meaning of proposed Treasury
regulations promulgated under the Code and that the transferor of
a
“noneconomic residual interest” will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant
purpose of the transfer is to impede the assessment or collection
of
tax.
|
B-4-1
|
4.
|
The
Owner is aware of the tax imposed on a “pass-through entity” holding the
Class R Certificates if, at any time during the taxable year of the
pass-through entity, a non-Permitted Transferee is the record holder
of an
interest in such entity. (For this purpose, a “pass-through entity”
includes a regulated investment company, a real estate investment
trust or
common trust fund, a partnership, trust or estate, and certain
cooperatives.)
|
|
5.
|
The
Owner is aware that the Securities Administrator will not register
the
transfer of any Class R Certificate unless the transferee, or the
transferee’s agent, delivers to the Securities Administrator, among other
things, an affidavit in substantially the same form as this affidavit.
The
Owner expressly agrees that it will not consummate any such transfer
if it
knows or believes that any of the representations contained in such
affidavit and agreement are false.
|
|
6.
|
The
Owner consents to any additional restrictions or arrangements that
shall
be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class R Certificates will only be
owned,
directly or indirectly, by an Owner that is a Permitted
Transferee.
|
|
7.
|
The
Owner’s taxpayer identification number is
________________.
|
|
8.
|
The
Owner has reviewed the restrictions set forth on the face of the
Class R
Certificates and the provisions of Section 6.02(d) of the Pooling
and
Servicing Agreement under which the Class R Certificates were issued
(in
particular, clauses (iii)(A) and (iii)(B) of Section 6.02(d) which
authorize the Securities Administrator to deliver payments to a person
other than the Owner and negotiate a mandatory sale by the Securities
Administrator in the event that the Owner holds such Certificate
in
violation of Section 6.02(d)); and that the Owner expressly agrees
to be
bound by and to comply with such restrictions and
provisions.
|
|
9.
|
The
Owner is not acquiring and will not transfer the Class R Certificates
in
order to impede the assessment or collection of any
tax.
|
|
10.
|
The
Owner anticipates that it will, so long as it holds the Class R
Certificates, have sufficient assets to pay any taxes owed by the
holder
of such Class R Certificates, and hereby represents to and for the
benefit
of the person from whom it acquired the Class R Certificates that
the
Owner intends to pay taxes associated with holding such Class R
Certificates as they become due, fully understanding that it may
incur tax
liabilities in excess of any cash flows generated by the Class R
Certificates.
|
B-4-2
|
11.
|
The
Owner has no present knowledge that it may become insolvent or subject
to
a bankruptcy proceeding for so long as it holds the Class R
Certificates.
|
|
12.
|
The
Owner has no present knowledge or expectation that it will be unable
to
pay any United States taxes owed by it so long as any of the Certificates
remain outstanding.
|
|
13.
|
The
Owner is not acquiring the Class R Certificates with the intent to
transfer the Class R Certificates to any person or entity that will
not
have sufficient assets to pay any taxes owed by the holder of such
Class R
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain
outstanding.
|
|
14.
|
The
Owner will, in connection with any transfer that it makes of the
Class R
Certificates, obtain from its transferee the representations required
by
Section 6.02(d) of the Pooling and Servicing Agreement under which
the
Class R Certificate were issued and will not consummate any such
transfer
if it knows, or knows facts that should lead it to believe, that
any such
representations are false.
|
|
15.
|
The
Owner will, in connection with any transfer that it makes of the
Class R
Certificates, deliver to the Securities Administrator an affidavit,
which
represents and warrants that it is not transferring the Class R
Certificates to impede the assessment or collection of any tax and
that it
has no actual knowledge that the proposed transferee: (i) has insufficient
assets to pay any taxes owed by such transferee as holder of the
Class R
Certificates; (ii) may become insolvent or subject to a bankruptcy
proceeding for so long as the Class R Certificates remains outstanding;
and (iii) is not a “Permitted
Transferee”.
|
|
16.
|
The
Owner is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the
laws of,
the United States or any political subdivision thereof, or an estate
or
trust whose income from sources without the United States may be
included
in gross income for United States federal income tax purposes regardless
of its connection with the conduct of a trade or business within
the
United States.
|
|
17.
|
The
Owner of the Class R Certificate, hereby agrees that in the event
that the
Trust Fund created by the Pooling and Servicing Agreement is terminated
pursuant to Section 10.01 thereof, the undersigned shall assign and
transfer to the Holders of the
[
] Certificates any amounts in excess of par received in connection
with
such termination. Accordingly, in the event of such termination,
the
Securities Administrator is hereby authorized to withhold any such
amounts
in excess of par and to pay such amounts directly to the Holders
of the
[
] Certificates. This agreement shall bind and be enforceable against
any
successor, transferee or assignee of the undersigned in the Class
R
Certificate. In connection with any transfer of the Class R Certificate,
the Owner shall obtain an agreement substantially similar to this
clause
from any subsequent owner.
|
B-4-3
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of
_________________, ____.
|
[OWNER]
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
[Vice] President
|
||
ATTEST:
By:
Name:
Title:
[Assistant] Secretary
Personally
appeared before me the above-named __________________, known or proved to me
to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the Owner, 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
Owner.
Subscribed
and sworn before me this ______________ day of __________,
____.
|
Notary
Public
|
|
|
County
of
|
|
|
State
of _______________________________
|
|
|
My
Commission expires:
|
B-4-4
FORM
OF
TRANSFEROR AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
_________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am
a ____________________
of _________________________ (the “Owner”), a corporation duly organized and
existing under the laws of _____________, on behalf of whom I make this
affidavit.
2. The
Owner
is not transferring the Class R Certificates (the “Residual Certificates”) to
impede the assessment or collection of any tax.
3. The
Owner
has no actual knowledge that the Person that is the proposed transferee (the
“Purchaser”) of the Residual Certificates: (i) has insufficient assets to pay
any taxes owed by such proposed transferee as holder of the Residual
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding
for so long as the Residual Certificates remain outstanding and (iii) is not
a
Permitted Transferee.
4. The
Owner
understands that the Purchaser has delivered to the Securities Administrator
a
transfer affidavit and agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit B-4. The Owner does not know or believe that
any
representation contained therein is false.
5. At
the
time of transfer, the Owner has conducted a reasonable investigation of the
financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Owner
has
determined that the Purchaser has historically paid its debts as they became
due
and has found no significant evidence to indicate that the Purchaser will not
continue to pay its debts as they become due in the future. The Owner
understands that the transfer of a Residual Certificate may not be respected
for
United States income tax purposes (and the Owner may continue to be liable
for
United States income taxes associated therewith) unless the Owner has conducted
such an investigation.
6. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them
in
the Pooling and Servicing Agreement, dated as of August 1, 2007, among
MortgageIT Securities Corp., ▇▇▇▇▇ Fargo Bank, N.A., as master servicer and
securities administrator, ▇▇▇▇▇ Fargo Bank, N.A. as servicer and HSBC Bank
USA,
National Association.
B-4-5
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of
________________, ____.
|
[OWNER]
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
[Vice] President
|
||
ATTEST:
By:
Name:
Title:
[Assistant] Secretary
Personally
appeared before me the above-named _________________, known or proved to me
to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the Owner, 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
Owner.
Subscribed
and sworn before me this ______ day of _____________, ____.
|
Notary
Public
|
|
|
County
of _____________________________
|
|
|
State
of _______________________________
|
|
|
My
Commission expires:
|
B-4-6
EXHIBIT
C-1
BACK-UP
CERTIFICATION
Re: __________
(the “Trust”)
Mortgage
Pass-Through Certificates, Series 2007-2
I,
[identify the certifying individual], certify to MortgageIT Securities Corp.
(the “Depositor”), HSBC Bank USA, National Association (the “Trustee”) or ▇▇▇▇▇
Fargo Bank, N.A. (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 servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to the Master Servicer
pursuant to [the Agreement] [the Amended and Restated Servicing Agreement,
dated
as of January 2, 2007 (the “Amended and Restated Servicing Agreement”),
between the Servicer and DB Structured Products, Inc. (“DBSP”) as amended and
modified by the Assignment, Assumption and Recognition Agreement, dated as
of
August 30, 2007 (the “Assignment Agreement”; together with the Amended and
Restated Servicing Agreement, the “Servicing Agreement”), among the Servicer,
DBSP and MortgageIT Securities Corp.] (collectively, the “Servicer Servicing
Information”);
(2) Based
on
my knowledge, the Servicer 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 Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be provided
by the Servicer under the Agreement has been provided to the Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Servicer as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
C-1-1
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
Capitalized
terms used and not otherwise defined herein have the meanings assigned thereto
in [the Pooling and Servicing Agreement (the “Agreement”), dated as of August 1,
2007, among MortgageIT Securities Corp. as Depositor, ▇▇▇▇▇ Fargo Bank, N.A.
as
Master Servicer and Securities Administrator, ▇▇▇▇▇ Fargo Bank, N.A. as a
Servicer and HSBC Bank USA, National Association as Trustee] [the Servicing
Agreement].
|
Date:
|
||||
|
|
||||
|
[Signature]
|
||||
|
|
||||
|
[Title]
|
||||
C-1-2
EXHIBIT
C-2
FORM
OF ANNUAL CERTIFICATION
Re: The
[ ]
agreement dated as of
[ l,
200[ ] (the “Agreement”), among
[IDENTIFY PARTIES]
I,
____________________________, the _______________________ of [NAME OF COMPANY]
(the “Company”), certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the Annual
Independent Public Accountants’ Servicing Report (as defined in the Agreement),
and all servicing reports, officer’s certificates and other information relating
to the servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered by the Company to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Company
Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement and the Annual Independent Public Accountants’ Servicing
Report, the Company has fulfilled its obligations under the Agreement in all
material respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Annual Independent Public Accountants’ Servicing Report
required to be provided by the Company and by any Subservicer and Subcontractor
pursuant to the Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such reports
have been disclosed to the [Depositor] [Master Servicer]. Any material instance
of noncompliance with the Servicing Criteria has been disclosed in such
reports.
C-2-1
| Date: | ||||
|
|
||||
| By: | ||||
|
Name:
Title:
|
||||
C-2-2
EXHIBIT
D
FORM
OF
POWER OF ATTORNEY
RECORDING
REQUESTED BY
AND
WHEN
RECORDED MAIL TO
[Servicer]
[Servicer’s
Address]
Attn:
_________________________________
LIMITED
POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that ________________, having its principal place of
business at ____________________, as Trustee (the “Trustee”) pursuant to that
Pooling and Servicing Agreement among ___________________ (the “Depositor”),
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Securities Administrator, ▇▇▇▇▇
Fargo Bank, N.A. as a servicer (“▇▇▇▇▇ Fargo”) and the Trustee, dated as of
August 1, 2007 (the “Pooling and Servicing Agreement”), hereby constitutes
and appoints [▇▇▇▇▇ Fargo][GMAC Mortgage, LLC] (the “Servicer”), by and through
the Servicer’s officers, the Trustee’s true and lawful Attorney-in-Fact, in the
Trustee’s name, place and stead and for the Trustee’s benefit, in connection
with all mortgage loans serviced by the Servicer pursuant to [the Pooling and
Servicing Agreement] [the Amended and Restated Servicing Agreement, dated as
of
January 2, 2007, between the Servicer and DB Structured Products, Inc.
(“DBSP”) as amended and modified by the Assignment, Assumption and Recognition
Agreement, dated as of August 30, 2007, among the Servicer, DBSP, MortgageIT
Securities Corp. and the Master Servicer (together, the “Servicing Agreement”)]
for the purpose of performing all acts and executing all documents in the name
of the Trustee as may be customarily and reasonably necessary and appropriate
to
effectuate the following enumerated transactions in respect of any of the
mortgages or deeds of trust (the “Mortgages” and the “Deeds of Trust”,
respectively) and promissory notes secured thereby (the “Mortgage Notes”) for
which the undersigned is acting as Trustee for various certificateholders
(whether the undersigned is named therein as mortgagee or beneficiary or has
become mortgagee by virtue of endorsement of the Mortgage Note secured by any
such Mortgage or Deed of Trust) and for which the Servicer is acting as
servicer, all subject to the terms of the [Pooling and Servicing Agreement]
[Servicing Agreement].
This
appointment shall apply to the following enumerated transactions
only:
|
1.
|
The
modification or re-recording of a Mortgage or Deed of Trust, where
said
modification or re-recordings is for the purpose of correcting the
Mortgage or Deed of Trust to conform same to the original intent
of the
parties thereto or to correct title errors discovered after such
title
insurance was issued and said modification or re-recording, in either
instance, does not adversely affect the lien of the Mortgage or Deed
of
Trust as insured.
|
D-1
|
2.
|
The
subordination of the lien of a Mortgage or Deed of Trust to an easement
in
favor of a public utility company of a government agency or unit
with
powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfactions/releases, partial reconveyances
or
the execution or requests to trustees to accomplish
same.
|
|
3.
|
The
conveyance of the properties to the mortgage insurer, or the closing
of
the title to the property to be acquired as real estate owned, or
conveyance of title to real estate
owned.
|
| 4. |
The
completion of loan assumption
agreements.
|
|
5.
|
The
full satisfaction/release of a Mortgage or Deed of Trust or full
conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage
Note.
|
|
6.
|
The
assignment of any Mortgage or Deed of Trust and the related Mortgage
Note,
in connection with the repurchase of the mortgage loan secured and
evidenced thereby.
|
|
7.
|
The
full assignment of a Mortgage or Deed of Trust upon payment and discharge
of all sums secured thereby in conjunction with the refinancing thereof,
including, without limitation, the assignment of the related Mortgage
Note.
|
|
8.
|
With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking
of a
deed in lieu of foreclosure, or the completion of judicial or non-judicial
foreclosure or termination, cancellation or rescission of any such
foreclosure, including, without limitation, any and all of the following
acts:
|
|
a.
|
the
substitution of trustee(s) serving under a Deed of Trust, in accordance
with state law and the Deed of
Trust;
|
|
b.
|
the
preparation and issuance of statements of breach or
non-performance;
|
|
c.
|
the
preparation and filing of notices of default and/or notices of
sale;
|
|
d.
|
the
cancellation/rescission of notices of default and/or notices of
sale;
|
|
e.
|
the
taking of a deed in lieu of foreclosure;
and
|
|
f.
|
the
preparation and execution of such other documents and performance
of such
other actions as may be necessary under the terms of the Mortgage,
Deed of
Trust or state law to expeditiously complete said transactions in
paragraphs 8.a. through 8.e.,
above.
|
The
undersigned gives said Attorney-in-Fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney as fully as the undersigned might or could do, and hereby
does
ratify and confirm to all that said Attorney-in-Fact shall lawfully do or cause
to be done by authority hereof.
D-2
Third
parties without actual notice may rely upon the exercise of the power granted
under this Limited Power of Attorney; and may be satisfied that this Limited
Power of Attorney shall continue in full force and effect and has not been
revoked unless an instrument of revocation has been made in writing by the
undersigned.
IN
WITNESS WHEREOF, ________________ as Trustee pursuant to that Pooling and
Servicing Agreement among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A. as Master
Servicer and Securities Administrator, ▇▇▇▇▇ Fargo Bank, N.A. as servicer and
the Trustee, dated as of ___________ 1, 200__ (_____________ Mortgage
Pass-Through, Series 200__-___), has caused its corporate seal to be hereto
affixed and these presents to be signed and acknowledged in its name and behalf
by ____________ its duly elected and authorized Vice President this _________
day of _________, 200__.
| |
|
as
Trustee for _____ Mortgage
Pass-Through
Certificates,
Series
200__-___
|
| By: | ||
|
|
||
|
STATE
OF _____________
|
|
COUNTY
OF ___________
|
On
_______________, 200__, before me, the undersigned, a Notary Public in and
for
said state, personally appeared ____________, Vice President of
____________________ as Trustee for ___________ Mortgage Pass-Through, Series
200__-___, personally known to me to be the person whose name is subscribed
to
the within instrument and acknowledged to me that he/she executed that same
in
his/her authorized capacity, and that by his/her signature on the instrument
the
entity upon behalf of which the person acted and executed the
instrument.
WITNESS
my hand and official seal.
(SEAL)
|
Notary
Public
|
|
|
My
Commission Expires
_________________
|
D-3
EXHIBIT
E
SERVICING
CRITERIA
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Servicer] [the Master Servicer]
[Name of Subservicer] shall address, at a minimum, the criteria identified
as
below as “Relevant Servicing Criteria”:
|
SERVICING
CRITERIA
|
RELEVANT
SERVICING CRITERIA
|
|||
|
Reference
|
Criteria
|
|
||
|
|
General
Servicing Considerations
|
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
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
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
E-1
|
SERVICING
CRITERIA
|
RELEVANT
SERVICING CRITERIA
|
|||
|
Reference
|
Criteria
|
|||
|
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
|
||
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
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
|
||
|
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
|
||
|
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
|
||
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset 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
|
E-2
|
SERVICING
CRITERIA
|
RELEVANT
SERVICING CRITERIA
|
|||
|
Reference
|
Criteria
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
||
|
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.
|
X
|
||
|
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.
|
X
|
||
|
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.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
[NAME
OF
SERVICER] [MASTER SERVICER] [NAME OF SUBSERVICER]
Date:
By:
Name:
Title:
E-3
Schedule
1122 (Pooling and Servicing Agreement)
Assessments
of Compliance and Attestation Reports Servicing Criteria2
|
Reg.
AB Item 1122(d) Servicing Criteria
|
Depositor
|
Seller
|
Servicers
|
Trustee
|
Custodian
|
Paying
Agent
|
Master
Servicer
|
Securities
Administrator
|
||||||||
|
(1) General
Servicing Considerations
|
||||||||||||||||
|
(i)
monitoring
performance or other triggers and events of default
|
X
|
X
|
X
|
|||||||||||||
|
(ii)
monitoring
performance of vendors of activities outsourced
|
X
|
X
|
||||||||||||||
|
(iii)
maintenance
of back-up servicer for pool assets
|
||||||||||||||||
|
(iv)
fidelity
bond and E&O policies in effect
|
X
|
X
|
||||||||||||||
|
(2) Cash
Collection and Administration
|
||||||||||||||||
|
(i)
timing
of deposits to custodial account
|
X
|
X
|
X
|
X
|
||||||||||||
|
(ii)
wire
transfers to investors by authorized personnel
|
X
|
X
|
X
|
|||||||||||||
|
(iii) advances
or guarantees made, reviewed and approved as required
|
X
|
X
|
||||||||||||||
|
(iv)
accounts
maintained as required
|
X
|
X
|
X
|
X
|
||||||||||||
|
(v)
accounts
at federally insured depository institutions
|
X
|
X
|
X
|
X
|
||||||||||||
|
(vi)
unissued
checks safeguarded
|
X
|
X
|
X
|
| * |
The
descriptions of the Item 1122(d) servicing criteria use key
words and
phrases and are not verbatim recitations of the servicing criteria.
Refer
to Regulation AB, Item 1122 for a full description of servicing
criteria.
|
E-4
|
Reg.
AB Item 1122(d) Servicing Criteria
|
Depositor
|
Seller
|
Servicers
|
Trustee
|
Custodian
|
Paying
Agent
|
Master
Servicer
|
Securities
Administrator
|
||||||||
|
(vii) monthly
reconciliations of accounts
|
X
|
X
|
X
|
X
|
||||||||||||
|
(3) Investor
Remittances and Reporting
|
||||||||||||||||
|
(i)
investor
reports
|
X
|
X
|
X
|
|||||||||||||
|
(ii)
remittances
|
X
|
X
|
X
|
|||||||||||||
|
(iii) proper
posting of distributions
|
X
|
X
|
X
|
|||||||||||||
|
(iv)
reconciliation
of remittances and payment statements
|
X
|
X
|
X
|
X
|
||||||||||||
|
(4) Pool
Asset Administration
|
||||||||||||||||
|
(i)
maintenance
of pool collateral
|
X
|
X
|
||||||||||||||
|
(ii)
safeguarding
of pool assets/documents
|
X
|
X
|
||||||||||||||
|
(iii)
additions,
removals and substitutions of pool assets
|
X
|
X
|
||||||||||||||
|
(iv)
posting
and allocation of pool asset payments to pool assets
|
X
|
|||||||||||||||
|
(v)
reconciliation
of servicer records
|
X
|
|||||||||||||||
|
(vi)
modifications
or other changes to terms of pool assets
|
X
|
|||||||||||||||
|
(vii)
loss
mitigation and recovery actions
|
X
|
|||||||||||||||
|
(viii)
records regarding collection efforts
|
X
|
|||||||||||||||
|
(ix)
adjustments
to variable interest rates on pool assets
|
X
|
E-5
|
Reg.
AB Item 1122(d) Servicing Criteria
|
Depositor
|
Seller
|
Servicers
|
Trustee
|
Custodian
|
Paying
Agent
|
Master
Servicer
|
Securities
Administrator
|
||||||||
|
(x)
matters
relating to funds held in trust for obligors
|
X
|
|||||||||||||||
|
(xi) payments
made on behalf of obligors (such as for taxes or
insurance)
|
X
|
|||||||||||||||
|
(xii) late
payment penalties with respect to payments made on behalf of obligors
|
X
|
|||||||||||||||
|
(xiii)
records with respect to payments made on behalf of
obligors
|
X
|
|||||||||||||||
|
(xiv)
recognition
and recording of delinquencies, charge-offs and uncollectible
accounts
|
X
|
X
|
||||||||||||||
|
(xv) maintenance
of external credit enhancement or other support
|
X
|
E-6
EXHIBIT
F
MORTGAGE
LOAN PURCHASE AGREEMENT
F-1
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a
Mortgage Loan Purchase Agreement (this “Agreement”), dated August 30, 2007,
between DB Structured Products, Inc. (the “Seller”) and MortgageIT Securities
Corp., a Delaware corporation (the “Purchaser”).
Preliminary
Statement
The
Seller intends to sell the Mortgage Loans (as hereinafter defined) and the
Class
A Swap Agreement (as hereinafter defined) to the Purchaser on the terms and
subject to the conditions set forth in this Agreement. The Purchaser intends
to
deposit the Mortgage Loans into a mortgage pool comprising the Trust Fund.
The
Trust Fund will be evidenced by a single series of mortgage pass-through
certificates designated as MortgageIT Securities Corp. Mortgage Loan Trust,
Series 2007-2 Mortgage Pass-Through Certificates (the “Certificates”). The
Certificates will consist of nine (9) classes of certificates. The Certificates
will be issued pursuant to a Pooling and Servicing Agreement, dated as of August
1, 2007 (the “Pooling and Servicing Agreement”), among the Purchaser as
depositor, ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer (the “Master Servicer”) and as securities administrator
and HSBC Bank USA, National Association as trustee (the “Trustee”). The
Purchaser will sell the Class
A-1, Class A-2, Class B-1, Class B-2 and Class B-3 Certificates
to Deutsche Bank Securities Inc. (“DBSI”), pursuant to the Underwriting
Agreement, dated as of May 30, 2007, and the Terms Agreement, dated as of August
30, 2007, each between the Purchaser and DBSI.
The
Purchaser will sell the Class B-4, Class B-5 and Class B-6 Certificates to
DBSI
pursuant to the Purchase Agreement dated as of August 31, 2007. The Seller
will
sell the Class R Certificates to DBSI pursuant to a ▇▇▇▇ of Sale, dated August
30, 2007. Capitalized terms used but not defined herein shall have the meanings
set forth in the Pooling and Servicing Agreement.
The
parties hereto agree as follows:
SECTION
1. Agreement
to Purchase.
The
Seller hereby sells, and the Purchaser hereby purchases, on August 30, 2007
(the
“Closing Date”), (a) certain conventional, one- to four-family, fixed-rate first
lien, residential mortgage loans (the “Mortgage Loans”), having an aggregate
principal balance as of the close of business on August 1, 2007 (the “Cut-off
Date”) of approximately $921,858,139.06 (the “Closing Balance”), after giving
effect to all payments due on the Mortgage Loans on or before the Cut-off Date,
whether or not received, but excluding the rights to the servicing of the
Mortgage Loans, which are owned by ▇▇▇▇▇ and the Sponsor (the “Servicing
Rights”) and (b) all of the Seller’s right, title and interest in and to the
Class A Swap Agreement, dated as of August 30, 2007, between Deutsche Bank
AG
New York Branch (“DBAG”) and the Trustee as supplemental interest trust trustee
of MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2 Mortgage
Pass-Through Certificates (the “Class A Swap Agreement”), relating to the Class
A Certificates.
SECTION
2. Mortgage
Loan Schedule.
The
Purchaser and the Seller have agreed upon which of the mortgage loans owned
by
the Seller are to be purchased by the Purchaser pursuant to this Agreement
and
the Seller will prepare or cause to be prepared on or prior to the Closing
Date
a final schedule (the “Closing Schedule”) that shall describe such Mortgage
Loans and set forth all of the Mortgage Loans to be purchased under this
Agreement. The Closing Schedule will conform to the requirements set forth
in
this Agreement and to the definition of “Mortgage Loan Schedule” under the
Pooling and Servicing Agreement.
SECTION
3. Consideration.
(a) In
consideration for the Mortgage Loans and the Class A Swap Agreement to be
purchased hereunder, the Purchaser shall, as described in Section 8, (i) pay
to
or upon the order of the Seller in immediately available funds an amount (the
“Purchase Price”) equal to (i) $________* and
(ii)
a 100% interest in the Class R Certificates. The Class R Certificates shall
be
in the name of “Deutsche Bank Securities Inc.”
(b) The
Purchaser or any assignee, transferee or designee of the Purchaser shall be
entitled to all scheduled payments of principal due after the Cut-Off Date,
all
other payments of principal due and collected after the Cut-Off Date, and all
payments of interest on the Mortgage Loans allocable to the period after the
Cut-Off Date. All scheduled payments of principal and interest due on or before
the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
(c) Pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign all of its
right, title and interest in and to the Mortgage Loans and the Class A Swap
Agreement, together with its rights under this Agreement, to the Trustee for
the
benefit of the Certificateholders.
SECTION
4. Transfer
of the Mortgage Loans.
(a) Possession
of Mortgage Files.
The
Seller does hereby sell to the Purchaser, without recourse but subject to the
terms of this Agreement, all of its right, title and interest in, to and under
the Mortgage Loans and the Class A Swap Agreement, but excluding the Servicing
Rights. The contents of each Mortgage File not delivered to the Purchaser or
to
any assignee, transferee or designee of the Purchaser on or prior to the Closing
Date are and shall be held in trust by the Seller for the benefit of the
Purchaser or any assignee, transferee or designee of the Purchaser. Upon the
sale of the Mortgage Loans, the ownership of each Mortgage Note, the related
Mortgage and the other contents of the related Mortgage File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or that come into the possession of the Seller
on or after the Closing Date shall immediately vest in the Purchaser and shall
be delivered immediately to the Purchaser or as otherwise directed by the
Purchaser.
(b) Delivery
of Mortgage Loan Documents.
The
Seller will, on or prior to the Closing Date, deliver or cause to be delivered
to the Purchaser or any assignee, transferee or designee of the Purchaser each
of the following documents for each Mortgage Loan:
* Please
contact the Mortgage Loan Seller for this information.
-2-
(i) the
original Mortgage Note, including any riders thereto, endorsed in blank, with
all prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the
original Mortgage or a certified copy thereof, including any riders thereto,
with evidence of recording thereon, and the original recorded power of attorney,
if the Mortgage was executed pursuant to a power of attorney, with evidence
of
recording thereon, and in the case of each MOM Loan, the original Mortgage,
noting the presence of the MIN of the Loan and either language indicating that
the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan
at
origination, the original Mortgage and the assignment thereof to MERS®, with
evidence of recording indicated thereon;
(iii) unless
such Mortgage Loan is registered on the MERS System, the original Assignment
of
Mortgage executed in blank;
(iv) unless
such Mortgage Loan is a MOM Loan, the original recorded Assignment or
Assignments of the Mortgage, or a certified copy or copies thereof, showing
a
complete chain of assignment from the originator to the last Person assigning
the Mortgage;
(v) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any;
(vi) the
original lender’s title insurance policy, together with all endorsements or
riders that were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the Mortgaged Property
represented therein as a fee interest vested in the Mortgagor;
(vii) the
original of any guarantee executed in connection with the Mortgage Note, if
any;
and
(viii) the
original of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
Notwithstanding
anything to the contrary contained in this Section 4, with respect to a maximum
of approximately 1.00% of the Mortgage Loans, by aggregate principal balance
of
the Mortgage Loans as of the Cut-Off Date, if any original Mortgage Note
referred to in Section 4(b)(i) above cannot be located, the obligations of
the
Seller to deliver such documents shall be deemed to be satisfied upon delivery
to the Purchaser or any assignee, transferee or designee of the Purchaser of
a
photocopy of such Mortgage Note, if available, with a lost note affidavit
substantially in the form of Exhibit
1
attached
hereto. If any of the original Mortgage Notes for which a lost note affidavit
was delivered to the Purchaser or any assignee, transferee or designee of the
Purchaser is subsequently located, such original Mortgage Note shall be
delivered to the Purchaser or any assignee, transferee or designee of the
Purchaser within three (3) Business Days; and if any document referred to in
Section 4(b)(ii) or 4(b)(iv) above has been submitted for recording but either
(x) has not been returned from the applicable public recording office or (y)
has
been lost or such public recording office has retained the original of such
document, the obligations of the Seller hereunder shall be deemed to have been
satisfied upon delivery to the Purchaser or any assignee, transferee or designee
of the Purchaser promptly upon receipt thereof by or on behalf of the Seller
of
either the original or a copy of such document certified by the applicable
public recording office to be a true and complete copy of the
original.
-3-
In
the
event that the original lender’s title insurance policy has not yet been issued,
the Seller shall deliver to the Purchaser or any assignee, transferee or
designee of the Purchaser a written commitment or interim binder or preliminary
report of title issued by the title insurance or escrow company. The Seller
shall deliver such original title insurance policy to the Purchaser or any
assignee, transferee or designee of the Purchaser promptly upon receipt by
the
Seller, if any.
Each
original document relating to a Mortgage Loan which is not delivered to the
Purchaser or its assignee, transferee or designee, if held by the Seller, shall
be so held for the benefit of the Purchaser, its assignee, transferee or
designee.
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Seller further agrees that it will cause, at the Seller’s own
expense, within thirty (30) days after the Closing Date, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Purchaser and by the Purchaser to the Trustee in accordance with this Agreement
for the benefit of the Certificateholders by including (or deleting, in the
case
of Mortgage Loans which are repurchased in accordance with this Agreement)
in
such computer files (a) the code in the field which identifies the specific
Trustee and (b) the code in the field “Pool Field” which identifies the series
of the Certificates issued in connection with such Mortgage Loans. The Seller
further agrees that it will not, and will not permit any Servicer (as
hereinafter defined) or the Master Servicer to alter the codes referenced in
this paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance
with
the terms of this Agreement or the Pooling and Servicing Agreement.
(c) Acceptance
of Mortgage Loans.
The
documents delivered pursuant to Section 4(b) hereof shall be reviewed by the
Purchaser or any assignee, transferee or designee of the Purchaser at any time
before or after the Closing Date (and with respect to each document permitted
to
be delivered after the Closing Date, within seven (7) days of its delivery)
to
ascertain that all required documents have been executed and received and that
such documents relate to the Mortgage Loans identified on the Closing
Schedule.
(d) Transfer
of Interest in Agreements.
The
Purchaser has the right to assign its interest under this Agreement, in whole
or
in part, to the Trustee, as may be required to effect the purposes of the
Pooling and Servicing Agreement, without the consent of the Seller, and the
assignee shall succeed to the rights and obligations hereunder of the Purchaser.
Any expense reasonably incurred by or on behalf of the Purchaser or the Trustee
in connection with enforcing any obligations of the Seller under this Agreement
will be promptly reimbursed by the Seller.
(e) Examination
of Mortgage Files.
Prior
to the Closing Date, the Seller shall either (i) deliver in escrow to the
Purchaser or to any assignee, transferee or designee of the Purchaser for
examination the Mortgage File pertaining to each Mortgage Loan or (ii) make
such
Mortgage Files available to the Purchaser or to any assignee, transferee or
designee of the Purchaser for examination. Such examination may be made by
the
Purchaser or the Trustee, and their respective designees, upon reasonable notice
to the Seller during normal business hours before the Closing Date and within
sixty (60) days after the Closing Date. If any such person makes such
examination prior to the Closing Date and identifies any Mortgage Loans that
do
not conform to the requirements of the Purchaser as described in this Agreement,
such Mortgage Loans shall be deleted from the Closing Schedule. The Purchaser
may, at its option and without notice to the Seller, purchase all or part of
the
Mortgage Loans without conducting any partial or complete examination. The
fact
that the Purchaser or any person has conducted or has failed to conduct any
partial or complete examination of the Mortgage Files shall not affect the
rights of the Purchaser or any assignee, transferee or designee of the Purchaser
to demand repurchase or other relief as provided herein or under the Pooling
and
Servicing Agreement.
-4-
SECTION
5. Representations,
Warranties and Covenants of the Seller.
The
Seller hereby represents and warrants to the Purchaser, as of the date hereof
and as of the Closing Date, and covenants, that:
(i) The
Seller is a corporation organized under the laws of the state of Delaware with
full corporate power and authority to conduct its business as presently
conducted by it to the extent material to the consummation of the transactions
contemplated herein. The Agreement has been duly authorized, executed and
delivered by the Seller. The Seller had the full corporate power and authority
to own the Mortgage Loans and to transfer and convey the Mortgage Loans to
the
Purchaser and has the full corporate power and authority to execute and deliver
and engage in the transactions contemplated by, and perform and observe the
terms and conditions of, this Agreement;
(ii) The
Seller has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Purchaser, constitutes
a legal, valid and binding obligation of the Seller, enforceable against it
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency or reorganization or by general principles of
equity;
(iii) The
execution, delivery and performance of this Agreement by the Seller (x) does
not
conflict and will not conflict with, does not breach and will not result in
a
breach of and does not constitute and will not constitute a default (or an
event, which with notice or lapse of time or both, would constitute a default)
under (A) any terms or provisions of the articles of incorporation or by-laws
of
the Seller, (B) any term or provision of any material agreement, contract,
instrument or indenture, to which the Seller is a party or by which the Seller
or any of its property is bound, or (C) any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental authority
having jurisdiction over the Seller or any of its property and (y) does not
create or impose and will not result in the creation or imposition of any lien,
charge or encumbrance (other than any created hereby in favor of the Purchaser
and its assignees) which would have a material adverse effect upon the Mortgage
Loans or any documents or instruments evidencing or securing the Mortgage
Loans;
-5-
(iv) No
consent, approval, authorization or order of, registration or filing with,
or
notice on behalf of the Seller to any governmental authority or court is
required, under federal laws or the laws of the State of New York, for the
execution, delivery and performance by the Seller of, or compliance by the
Seller with, this Agreement or the consummation by the Seller of any other
transaction contemplated hereby and by the Pooling and Servicing Agreement;
provided, however, that the Seller makes no representation or warranty regarding
federal or state securities laws in connection with the sale or distribution
of
the Certificates;
(v) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(vi) Immediately
prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated,
the Seller was the owner of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note, and, upon the payment to the Seller of the
Purchase Price, in the event that the Seller retains or has retained record
title, the Seller shall retain such record title to each Mortgage, each related
Mortgage Note and the related Mortgage Files with respect thereto in trust
for
the Purchaser as the owner thereof from and after the date hereof;
(vii) There
are
no actions or proceedings against, or investigations known to it of, the Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans by the Seller or the consummation of the transactions contemplated by
this
Agreement or (C) that might prohibit or materially and adversely affect the
performance by the Seller of its obligations under, or validity or
enforceability of, this Agreement;
(viii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any relevant jurisdiction, except any as may have been
complied with;
(ix) There
is
no litigation currently pending or, to the best of the Seller’s knowledge
without independent investigation, threatened against the Seller that would
reasonably be expected to adversely affect the transfer of the Mortgage Loans,
the issuance of the Certificates or the execution, delivery, performance or
enforceability of this Agreement; and
(x) [Reserved].
-6-
SECTION
6. Representations
and Warranties of the Seller Relating to the Mortgage
Loans.
The
Seller hereby represents and warrants to the Purchaser that as to each Mortgage
Loan as of the Closing Date (unless otherwise set forth herein):
(i) The
information set forth in the Closing Schedule is true and correct in all
material respects as of the Cut-Off Date;
(ii) No
Monthly Payment required to be made under any Mortgage Loan has been
contractually delinquent by one month or more at any time preceding the date
such Mortgage Loan was purchased by the Seller;
(iii) To
the
best of the Seller’s knowledge, there
are
no delinquent taxes, assessment liens or insurance premiums affecting the
related Mortgaged Property;
(iv) The
buildings and improvements on the Mortgaged Property are insured against loss
by
fire and hazards of extended coverage (excluding earthquake insurance) in an
amount which is at least equal to the lesser of (i) the amount necessary to
compensate for any damage or loss to the improvements which are a part of such
property on a replacement cost basis or (ii) the outstanding principal balance
of the Mortgage Loan. To the best of the Seller’s knowledge, if the Mortgaged
Property is in an area identified on a flood hazard map or flood insurance
rate
map issued by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available), a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration is in effect. All such insurance policies contain
a
standard mortgagee clause naming the originator of the Mortgage Loan, its
successors and assigns as mortgagee and the Seller has not engaged in any act
or
omission which would impair the coverage of any such insurance policies. Except
as may be limited by applicable law, the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and expense,
and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(v) Each
Mortgage Loan complied in all material respects with any and all requirements
of
any federal, state or local law including, without limitation, usury, truth
in
lending, real estate settlement procedures, consumer credit protection, equal
credit opportunity, predatory and abusive lending, fair housing, or disclosure
laws applicable to the origination and servicing of Mortgage Loans of a type
similar to the Mortgage Loans and the consummation of the transactions
contemplated hereby will not involve the violation of any such
laws;
(vi) Except
as
the Mortgage File may reflect, the Mortgage has not been satisfied, cancelled,
subordinated or rescinded in whole or in part, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or in part, nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release;
-7-
(vii) The
Mortgage was recorded or was submitted for recording in accordance with all
applicable laws and is a valid, existing and enforceable first lien on the
Mortgaged Property including all improvements on the Mortgaged
Property;
(viii) The
Mortgage Note and the related Mortgage are genuine and each is the legal, valid
and binding obligation of the maker thereof, insured under the related title
policy, and enforceable in accordance with its terms, except to the extent
that
the enforceability thereof may be limited by a bankruptcy, insolvency or
reorganization;
(ix) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage and has the full right to convey, transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest and immediately upon the sale,
assignment and endorsement of the Mortgage Loans from the Seller to the
Purchaser, the Purchaser shall have good and indefeasible title to and be the
sole legal owner of the Mortgage Loans subject only to any encumbrance, equity,
lien, pledge, charge, claim or security interest arising out of the Purchaser’s
actions;
(x) Each
Mortgage Loan is covered by either (a) an attorney’s opinion of title and
abstract of title the form and substance of which is acceptable to mortgage
lending institutions making mortgage loans in the area where the Mortgaged
Property is located or (b) a valid and binding American Land Title Association
lender's title insurance policy issued by a title insurer qualified to do
business in the jurisdiction where the Mortgaged Property is located. No claims
have been filed under such lender's title insurance policy, and the Seller
has
not done, by act or omission, anything that would impair the coverage of the
lender's title insurance policy;
(xi) To
the
best of the Seller’s knowledge, there is no material default, breach, violation
event or event of acceleration existing under the Mortgage or the Mortgage
Note
and no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a material default, breach,
violation or event of acceleration, and the Seller has not, nor has its
predecessors, waived any material default, breach, violation or event of
acceleration;
(xii) As
of the
date the Mortgage Loan was purchased by the Seller, to the best of the Seller’s
knowledge, there was no proceeding pending for the total or partial condemnation
of the Mortgaged Property;
(xiii) To
the
best of the Seller’s knowledge, the Mortgage Loan is not subject to any valid
right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, nor will the operation of any of the terms
of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or
in
part, or subject to any such right of rescission, set-off, counterclaim or
defense, including without limitation the defense of usury, and no such right
of
rescission, set-off, counterclaim or defense has been asserted with respect
thereto;
-8-
(xiv) To
the
best of the Seller’s knowledge, each Mortgage Loan was originated on forms
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac;
(xv) The
Mortgaged Property is free of material damage and waste, excepting therefrom
any
Mortgage Loan subject to an escrow withhold as shown on the Closing Schedule
and
only to the extent of that escrow withhold;
(xvi) All
parties to the Mortgage Note had the legal capacity to execute the Mortgage
Note
and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed
by such parties;
(xvii) To
the
best of the Seller’s knowledge, at the time of origination of the Mortgage Loan,
no appraised improvement located on or being part of the Mortgaged Property
was
in violation of any applicable zoning law or regulation and to the best of
the
Seller’s knowledge, all inspections, licenses and certificates required in
connection with the origination of any Mortgage Loan with respect to the
occupancy of the Mortgaged Property, have been made or obtained from the
appropriate authorities;
(xviii) The
Mortgage File contains an appraisal of the related Mortgaged Property which
satisfied the standards of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and was made prior to
the
origination of the Mortgage Loan by a qualified appraiser, duly appointed by
the
related originator and was made in accordance with the relevant provisions
of
the Financial Institutions Reform, Recovery, and Enforcement Act of
1989;
(xix) Each
Mortgage Loan is an obligation which is principally secured by an interest
in
real property within the meaning of Treasury Regulation section 1.860G
2(a);
(xx) Each
Mortgage Loan is directly secured by a first lien on, and consists of a single
parcel of, real property with a detached one-to-four family residence erected
thereon, a townhouse or an individual condominium unit in a condominium project,
or an individual unit in a planned unit development (“PUD”);
(xxi) [Reserved];
(xxii) Each
Mortgage Loan was originated by a savings and loan association, savings bank,
commercial bank, credit union, insurance company, or similar institution which
is supervised and examined by a federal or state authority, or by a mortgagee
approved by the Secretary of Housing and Urban Development or any successor
thereto;
(xxiii) No
Mortgage Loan is (a) subject to, covered by or in violation of the provisions
of
the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high
cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a
similarly designated loan using different terminology) under any federal, state
or local law, including without limitation, the provisions of the Georgia Fair
Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan
Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS
360.100, effective as of June 25, 2003 or any other statute or regulation
providing assignee liability to holders of such mortgage loans, (c) subject
to
or in violation of any such or comparable federal, state or local statutes
or
regulations;
-9-
(xxiv) [Reserved];
(xxv) No
Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in
each case, as defined in the New Jersey Home Ownership Act effective November
27, 2003 (N.J.S.A. 46;10B-22 et seq.);
(xxvi) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity protection Act;
(xxvii) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. ▇▇▇. §§ 58-21A-1 et
seq.);
(xxviii) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(xxix) There
is
no Mortgage Loan that was originated or modified on or after October 1, 2002
and
before March 7, 2003, which is secured by property located in the State of
Georgia. There is no such Mortgage Loan underlying the Certificate that was
originated on or after March 7, 2003, which is a “high cost home loan” as
defined under the Georgia Fair Lending Act;
(xxx) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Massachusetts
Predatory Home Loan Practices Act, effective November 7, 2004 (Mass. ▇▇▇. Laws
Ch. 183C);
(xxxi) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Indiana Home Loan
Practices Act, effective January 1, 2005 (Ind. Code ▇▇▇. Sections 24-9-1 through
24-9-9);
(xxxii) Information
provided to the Rating Agencies, including the loan level detail, is true and
correct according to the Rating Agency requirements;
(xxxiii) The
Mortgage Loans were underwritten in accordance with the related originator’s
underwriting guidelines in effect at the time the Mortgage Loans were originated
(the “Applicable Underwriting Guidelines”), except with respect to certain of
those Mortgage Loans which had compensating factors permitting a deviation
from
the Applicable Underwriting Guidelines;
-10-
(xxxiv) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material provided to the related Mortgaged Property prior to the origination
of the Mortgage Loan which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage, except as may be disclosed in the
related title policy;
(xxxv) The
servicing practices used in connection with the servicing of the Mortgage Loans
have been in all respects reasonable and customary in the mortgage servicing
industry of like mortgage loan servicers, servicing similar mortgage loans
originated in the same jurisdiction as the Mortgaged Property;
(xxxvi) The
terms
of the Mortgage Note and the Mortgage have not been materially impaired, waived,
altered or modified in any respect, except by written instruments, recorded
in
the applicable public recording office if necessary to maintain the lien
priority of the Mortgage. The substance of any such waiver, alteration or
modification has been approved by the title insurer, to the extent required
by
the related policy. No Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement (approved by the title insurer to
the
extent required by the policy) and which assumption agreement has been delivered
to the Trustee;
(xxxvii) [Reserved];
(xxxviii) [Reserved];
(xxxix) No
selection procedures were used by the Seller that identified the Mortgage Loans
as being less desirable or valuable than other comparable mortgage loans in
the
Seller’s portfolio;
(xl) No
Mortgage Loan is secured in whole or in part by the interest of the Mortgagor
as
a lessee under a ground lease of the related Mortgaged Property;
(xli) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 6.0 Revised, Appendix E (attached hereto as Exhibit 2))
and
no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act;
(xlii) The
Mortgage Note, with respect to a Cooperative Loan, is not and has not been
secured by any collateral except the lien of the Cooperative Shares and the
Proprietary Lease; and
(xliii) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
or any comparable law and no Mortgage Loan is classified and/or defined as
“high
cost home”, “covered” (excluding home loans defined as “covered home loans” in
the New Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004) “high risk home” or “predatory” loan under
any other federal, state or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees). No Group I Mortgage Loan has an “annual percentage
rate” or “total points and fees” payable by the Mortgagor (as each such term is
defined under HOEPA) that equal or exceed the applicable thresholds defined
under HOEPA (Section 32 of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i)
and
(ii)).
-11-
SECTION
7. Repurchase
Obligation for Defective Documentation and for Breach
of Representation and Warranty.
(a) The
representations and warranties contained in Section 6 shall not be impaired
by
any review and examination of loan files or other documents evidencing or
relating to the Mortgage Loans or any failure on the part of the Seller or
the
Purchaser to review or examine such documents and shall inure to the benefit
of
any assignee, transferee or designee of the Purchaser, including the Trustee
for
the benefit of the Certificateholders. With respect to the representations
and
warranties contained herein as to which the Seller has no knowledge, if it
is
discovered that the substance of any such representation and warranty was
inaccurate as of the date such representation and warranty was made or deemed
to
be made, and such inaccuracy materially and adversely affects the value of
the
related Mortgage Loan or the interest therein of the Purchaser or the
Purchaser’s assignee, transferee or designee, then notwithstanding the lack of
knowledge by the Seller with respect to the substance of such representation
and
warranty being inaccurate at the time the representation and warranty was made,
the Seller shall take such action described in the following paragraph in
respect of such Mortgage Loan. Notwithstanding anything to the contrary
contained herein, any breach of a representation or warranty contained in
clauses (viii), (xxxix), and (xliii) of Section 6 above, shall be automatically
deemed to affect materially and adversely the interests of the Purchaser or
the
Purchaser’s assignee, transferee or designee.
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser of any materially defective document in, or that any material
document was not transferred by the Seller (as listed on the Custodian’s
preliminary exception report, as described in the Custodial
Agreement,
as part
of any Mortgage File or of a breach of any of the representations and warranties
contained in Section 6 that materially and adversely affects the value of any
Mortgage Loan or the interest therein of the Purchaser or the Purchaser’s
assignee, transferee or designee, the party discovering such breach shall give
prompt written notice to the Seller. Within sixty (60) days of its discovery
or
its receipt of notice of any such missing documentation that was not transferred
by the Seller as described above, or of materially defective documentation,
or
within sixty (60) days of any such breach of a representation and warranty,
the
Seller promptly shall deliver such missing document or cure such defect or
breach in all material respects or, in the event the Seller cannot deliver
such
missing document or cannot cure such defect or breach, the Seller shall, within
ninety (90) days of its discovery or receipt of notice of any such missing
or
materially defective documentation or within ninety (90) days of any such breach
of a representation and warranty, either (i) repurchase the affected Mortgage
Loan at the Purchase Price (as such term is defined in the Pooling and Servicing
Agreement) or (ii) pursuant to the provisions of the Pooling and Servicing
Agreement, cause the removal of such Mortgage Loan from the Trust Fund and
substitute one or more Qualified Substitute Mortgage Loans. The Seller shall
amend the Closing Schedule to reflect the withdrawal of such Mortgage Loan
from
the terms of this Agreement and the Pooling and Servicing Agreement.
Notwithstanding the foregoing, if the representation made by the Seller in
Section 6(xxiv) of this Agreement is breached, the Trustee shall, in accordance
with the terms of the Pooling and Servicing Agreement, enforce the obligation
of
the Seller to repurchase such Mortgage Loan at the Purchase Price, or to provide
a Qualified Substitute Mortgage Loan (plus any costs and damages incurred by
the
Trust Fund in connection with any violation by any such Mortgage Loan of any
predatory or abusive lending law) within ninety (90) days after the date on
which the Seller was notified of such breach. The Seller shall deliver to the
Purchaser such amended Closing Schedule and shall deliver such other documents
as are required by this Agreement or the Pooling and Servicing Agreement within
five (5) days of any such amendment. Any repurchase pursuant to this Section
7(a) shall be accomplished by transfer to an account designated by the Purchaser
of the amount of the Purchase Price in accordance with Section 2.03 of the
Pooling and Servicing Agreement. Any repurchase required by this Section shall
be made in a manner consistent with Section 2.03 of the Pooling and Servicing
Agreement.
-12-
(b) [Reserved].
(c) It
is
understood and agreed that the obligations of the Seller set forth in this
Section 7 to cure or repurchase a defective Mortgage Loan (and to make payments
pursuant to Section 7(b)) constitute the sole remedies of the Purchaser
against the Seller respecting a missing document or a breach of the
representations and warranties contained in Section 6.
SECTION
8. Closing;
Payment for the Mortgage Loans.
The
closing of the purchase and sale of the Mortgage Loans and the Class A Swap
Agreement shall be held at the New York City office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP at 10:00 a.m. New York City time on the Closing Date.
The
closing shall be subject to each of the following conditions:
|
(a)
|
All
of the representations and warranties of the Seller under this Agreement
shall be true and correct in all material respects as of the date
as of
which they are made and no event shall have occurred which, with
notice or
the passage of time, would constitute a default under this
Agreement;
|
|
(b)
|
The
Purchaser shall have received, or the attorneys of the Purchaser
shall
have received in escrow (to be released from escrow at the time of
closing), all closing documents as specified in Section 9 of this
Agreement, in such forms as are agreed upon and acceptable to the
Purchaser, duly executed by all signatories other than the Purchaser
as
required pursuant to the respective terms
thereof;
|
|
(c)
|
The
Seller shall have delivered or caused to be delivered and released
to the
Purchaser or to its designee, all documents (including without limitation,
the Mortgage Loans) required to be so delivered by the Purchaser
pursuant
to Section 2.01 of the Pooling and Servicing Agreement;
and
|
-13-
|
(d)
|
All
other terms and conditions of this Agreement and the Pooling and
Servicing
Agreement shall have been complied
with.
|
Subject
to the foregoing conditions, the Purchaser shall deliver or cause to be
delivered to the Seller on the Closing Date, against delivery and release by
the
Seller to the Trustee of all documents required pursuant to the Pooling and
Servicing Agreement, the consideration for the Mortgage Loans as specified
in
Section 3 of this Agreement.
SECTION
9. Closing
Documents.
Without
limiting the generality of Section 8 hereof, the closing shall be subject to
delivery of each of the following documents:
|
(a)
|
An
Officer’s Certificate of the Seller, dated the Closing Date, upon which
the Purchaser and DBSI may rely with respect to certain facts regarding
the sale of the Mortgage Loans by the Seller to the
Purchaser;
|
|
(b)
|
An
Opinion of Counsel of the Seller, dated the Closing Date and addressed
to
the Purchaser and DBSI;
|
|
(c)
|
Such
opinions of counsel as the Rating Agencies or the Trustee may request
in
connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller’s execution and delivery of, or performance under,
this Agreement; and
|
|
(d)
|
Such
further information, certificates, opinions and documents as the
Purchaser
or DBSI may reasonably request.
|
SECTION
10. Costs.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person to the
extent that the Purchaser or such other Person shall pay) all costs and expenses
incurred in connection with the transfer and delivery of the Mortgage Loans,
including without limitation, fees for title policy endorsements and
continuations, the fees and expenses of the Seller’s accountants and attorneys,
the costs and expenses incurred in connection with producing any Servicer’s loan
loss, foreclosure and delinquency experience, and the costs and expenses
incurred in connection with obtaining the documents referred to in Sections
9(a), 9(b) and 9(c), the costs and expenses of printing (or otherwise
reproducing) and delivering this Agreement, the Pooling and Servicing Agreement,
the Certificates, the prospectus and prospectus supplement, and any private
placement memorandum relating to the Certificates and other related documents,
the initial fees, costs and expenses of the Trustee, the fees and expenses
of
the Purchaser’s counsel in connection with the preparation of all documents
relating to the securitization of the Mortgage Loans, the filing fee charged
by
the Securities and Exchange Commission for registration of the Certificates
and
the fees charged by any rating agency to rate the Certificates. All other costs
and expenses in connection with the transactions contemplated hereunder shall
be
borne by the party incurring such expense.
SECTION
11. Servicing.
The
Mortgage Loans will be master serviced by the Master Servicer under the Pooling
and Servicing Agreement, serviced by either ▇▇▇▇▇ under the Pooling and
Servicing Agreement or serviced by GMAC
Mortgage, LLC
(“GMACM”; together with ▇▇▇▇▇, each a “Servicer”),
as
applicable, on behalf of the Trust, pursuant to a separate servicing agreement
identified in the Pooling and Servicing Agreement and assigned to the Purchaser
on the Closing Date and the Seller has represented to the Purchaser that such
Mortgage Loans are not subject to any other servicing agreements with third
parties. It is understood and agreed between the Seller and the Purchaser that
the Mortgage Loans are to be delivered free and clear of any other servicing
agreements. Neither the Purchaser nor any affiliate of the Purchaser is
servicing the Mortgage Loans under any such servicing agreement and,
accordingly, neither the Purchaser nor any affiliate of the Purchaser is
entitled to receive any fee for releasing the Mortgage Loans from any such
servicing agreement. For so long as the applicable Servicer services the
Mortgage Loans, such Servicer shall be entitled to the related Servicing Fee
and
such other payments as provided for under the terms of the Pooling and Servicing
Agreement or the related servicing agreement, as applicable.
-14-
SECTION
12. Mandatory
Delivery; Grant of Security Interest.
The
sale and delivery on the Closing Date of the Mortgage Loans (exclusive of the
Servicing Rights) described on the Closing Schedule in accordance with the
terms
and conditions of this Agreement is mandatory. It is specifically understood
and
agreed that each Mortgage Loan is unique and identifiable on the date hereof
and
that an award of money damages would be insufficient to compensate the Purchaser
for the losses and damages incurred by the Purchaser in the event of the
Seller’s failure to deliver the Mortgage Loans on or before the Closing Date.
The Seller hereby grants to the Purchaser a lien on and a continuing security
interest in the Seller’s interest in each Mortgage Loan and each document and
instrument evidencing each such Mortgage Loan to secure the performance by
the
Seller of its obligation hereunder, and the Seller agrees that it holds such
Mortgage Loans in custody for the Purchaser, subject to the Purchaser’s (i)
right, prior to the Closing Date, to reject any Mortgage Loan to the extent
permitted by this Agreement and (ii) obligation to deliver or cause to be
delivered the consideration for the Mortgage Loans pursuant to Section 8 hereof.
Any Mortgage Loans rejected by the Purchaser shall concurrently therewith be
released from the security interest created hereby. All rights and remedies
of
the Purchaser under this Agreement are distinct from, and cumulative with,
any
other rights or remedies under this Agreement or afforded by law or equity
and
all such rights and remedies may be exercised concurrently, independently or
successively.
Notwithstanding
the foregoing, if on the Closing Date, each of the conditions set forth in
Section 8 hereof shall have been satisfied and the Purchaser shall not have
paid
or caused to be paid the Purchase Price, or any such condition shall not have
been satisfied and satisfaction of such condition shall not have been waived
and
the Purchaser determines not to pay or cause to be paid the Purchase Price,
the
Purchaser shall immediately effect the redelivery of the Mortgage Loans, if
delivery to the Purchaser has occurred, and the security interest created by
this Section 12 shall be deemed to have been released.
SECTION
13. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by fax and, receipt of which
is
confirmed by telephone, if to the Purchaser, addressed to the Purchaser at
MortgageIT Securities Corp., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; and if to
the
Seller, addressed to the Seller at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, or to such other address as
the
Seller may designate in writing to the Purchaser.
-15-
SECTION
14. Severability
of Provisions.
Any
part, provision, representation or warranty of this Agreement that is prohibited
or that is held to be void or unenforceable shall be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION
15. Agreement
of Parties.
The
Seller and the Purchaser each agree to execute and deliver such instruments
and
take such actions as either of them may, from time to time, reasonably request
in order to effectuate the purpose and to carry out the terms of this Agreement
and the Pooling and Servicing Agreement.
SECTION
16. Survival.
The
Seller agrees that the representations, warranties and agreements made by it
herein and in any certificate or other instrument delivered pursuant hereto
shall be deemed to be relied upon by the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Purchaser or on its behalf,
and that the representations, warranties and agreements made by the Seller
herein or in any such certificate or other instrument shall survive the delivery
of and payment for the Mortgage Loans and shall continue in full force and
effect, notwithstanding any restrictive or qualified endorsement on the Mortgage
Notes and notwithstanding subsequent termination of this Agreement, the Pooling
and Servicing Agreement or the Trust Fund.
SECTION
17. GOVERNING
LAW.
THIS
AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
(EXCLUDING THE CHOICE OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW
YORK.
THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION
18. Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement
nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement
of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
and the Class A Swap Agreement by the Seller to the Purchaser as provided in
Section 4 hereof be, and be construed as, a sale of the Mortgage Loans and
the
Class A Swap Agreement by the Seller to the Purchaser and not as a pledge of
the
Mortgage Loans and the Class A Swap Agreement by the Seller to the Purchaser
to
secure a debt or other obligation of the Seller. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans
and
the Class A Swap Agreement are held to be property of the Seller, then (a)
it is
the express intent of the parties that such conveyance be deemed a pledge of
the
Mortgage Loans and the Class A Swap Agreement by the Seller to the Purchaser
to
secure a debt or other obligation of the Seller and (b) (1) this Agreement
shall
also be deemed to be a security agreement within the meaning of Articles 8
and 9
of the New York Uniform Commercial Code, (2) the conveyance provided for in
Section 4 hereof shall be deemed to be a grant by the Seller to the Purchaser
of
a security interest in all of the Seller’s right, title and interest in and to
the Mortgage Loans and the Class A Swap Agreement and all amounts payable to
the
holders of the Mortgage Loans and the Class A Swap Agreement in accordance
with
the terms thereof and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account whether in the form of cash,
instruments, securities or other property, (3) the possession by the Purchaser
or its agent of Mortgage Notes, the related Mortgages and such other items
of
property that constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be “possession by the secured party” for purposes of
perfecting the security interest pursuant to Section 9-305 of the New York
Uniform Commercial Code, and (4) notifications to persons holding such property
and acknowledgments, receipts or confirmations from persons holding such
property shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to
Section 4(d) hereof shall also be deemed to be an assignment of any security
interest created hereby. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans and the Class A Swap Agreement, such security interest would
be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and
the
Pooling and Servicing Agreement.
-16-
SECTION
19. Third
Party Beneficiary.
The
parties hereto acknowledge and agree that DBSI and each of its respective
successors and assigns shall have all the rights of a third-party beneficiary
in
respect of Section 12 of this Agreement and shall be entitled to rely upon
and
directly enforce the provisions of Section 12 of this Agreement.
[SIGNATURE
PAGE FOLLOWS]
-17-
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
| DB STRUCTURED PRODUCTS, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||
|
Its:
Director
|
||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇ |
||
|
Its:
Vice President
|
||
|
MORTGAGEIT
SECURITIES CORP.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
President
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇ ▇▇▇▇
|
||
|
Title:
Treasurer
|
||
EXHIBIT
1
Loan
#:
_____
Borrower:
_____
LOST
NOTE AFFIDAVIT
I,
as
_____________________ of ____________________, a _______________ am authorized
to make this Affidavit on behalf of __________________ (the “Seller”). In
connection with the administration of the Mortgage Loans held by
______________________, a _______________ [corporation] as Seller on behalf
of
____________________ (the “Purchaser”), _______________________ (the
“Deponent”), being duly sworn, deposes and says that:
1. The
Seller’s address is:
____________________________
____________________________
____________________________
2. The
Seller previously delivered to the Purchaser a signed initial certification
with
respect to such Mortgage and/or Assignment;
3. Such
Mortgage Note and/or Assignment was assigned or sold to the Purchaser by
__________________, a _________________ pursuant to the terms and provisions
of
a Mortgage Loan Purchase Agreement dated as of _______, 2007;
4. Such
Mortgage Note and/or Assignment is not outstanding pursuant to a request for
release of Documents;
5. Aforesaid
Mortgage Note and/or Assignment (the “Original”) has been lost;
6. Deponent
has made or caused to be made a diligent search for the Original and has been
unable to find or recover same;
7. The
Seller was the Seller of the Original at the time of the loss; and
8. Deponent
agrees that, if said Original should ever come into Seller’s possession, custody
or power, Seller will immediately and without consideration surrender the
Original to the Purchaser.
9. Attached
hereto is a true and correct copy of (i) the Note, endorsed in blank by the
Mortgagee and (ii) the Mortgage or deed of trust (strike one) which secures
the
Note, which Mortgage or deed of trust is recorded in the county where the
property is located.
10. Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless the
Purchaser, its successors and assigns, against any loss, liability or damage,
including reasonable attorney’s fees, resulting from the unavailability of any
Notes, including but not limited to any loss, liability or damage arising from
(i) any false statement contained in this Affidavit, (ii) any claim of any
party
that purchased a mortgage loan evidenced by the Lost Note or any interest in
such mortgage loan, (iii) any claim of any borrower with respect to the
existence of terms of a mortgage loan evidenced by the Lost Note on the related
property to the fact that the mortgage loan is not evidenced by an original
note
and (iv) the issuance of a new instrument in lieu thereof (items (i) through
(iv) above hereinafter referred to as the “Losses”) and (b) if required by any
Rating Agency in connection with placing such Lost Note into a Pass-Through
Transfer, shall obtain a surety from an insurer acceptable to the applicable
Rating Agency to cover any Losses with respect to such Lost Note.
11. This
Affidavit is intended to be relied upon by the Purchaser, its successors and
assigns. [Seller] represents and warrants that is has the authority to perform
its obligations under this Affidavit of Lost Note.
Executed
this _ day of _______, 200_.
| By: | ||
|
Name: |
||
|
Title:
|
||
On
this
__ day of ______, 200_, before me appeared ______________________ to me
personally known, who being duly sworn did say that he is the
_______________________ of ____________________, a ______________________ and
that said Affidavit of Lost Note was signed and sealed on behalf of such
corporation and said acknowledged this instrument to be the free act and deed
of
said entity.
Signature:
[Seal]
EXHIBIT
2
Appendix
E - Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective Date
|
Category
under Applicable
Anti-Predatory
Lending Law
|
||
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq. Effective
July 16, 2003
|
High
Cost Home Loan
|
||
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq. Effective June 2, 2003
|
Covered
Loan
|
||
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. ▇▇▇. §§ 53.5-101 et seq. Effective for
covered loans offered or entered into on or after January 1, 2003.
Other
provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
||
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746 et
seq. Effective October 1, 2001
|
High
Cost Home Loan
|
||
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq. Effective for loans
closed on or after January 28, 2003
|
Covered
Loan
|
||
|
Florida
|
Fair
Lending Act, Fla. Stat. ▇▇▇. §§ 494.0078 et seq. Effective October 2, 2002
|
High
Cost Home Loan
|
||
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq. Effective October 1,
2002 - March 6, 2003
|
High
Cost Home Loan
|
||
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq. Effective for loans
closed on or after March 7, 2003
|
High
Cost Home Loan
|
||
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34 Effective October 1, 1995, amendments October 1,
2002
|
High
Cost Loan
|
||
|
Standard
& Poor’s High Cost Loan Categorization
|
||||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective Date
|
Category
under Applicable
Anti-Predatory
Lending Law
|
||
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq. Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
||
|
Indiana
|
Indiana
Home Loan Practices Act, Ind. Code ▇▇▇. §§ 24-9-1-1 et seq. Effective
January 1, 2005; amended by 2005 HB 1179, effective July 1, 2005.
|
High
Cost Home Loans
|
||
|
Kansas
|
Consumer
Credit Code, Kan. Stat. ▇▇▇. §§ 16a-1-101 et seq. Sections 16a-1-301 and
16a-3-207 became effective April 14, 1999; Section 16a-3-308a became
effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207) and;
High
APR Consumer Loan (id. § 16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. ▇▇▇ - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇. Rev. Stat. §§ 360.100 et seq.
Effective June 24, 2003
|
High
Cost Home Loan
|
||
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq. Effective September
29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
||
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq. and 209 C.M.R. §§ 40.01 et
seq. Effective March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
||
|
Nevada
|
Assembly
▇▇▇▇ No. 284, Nev. Rev. Stat. §§ 598D.010 et seq. Effective October 1,
2003
|
Home
Loan
|
||
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq. Effective for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
||
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq. Effective as of
January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
||
|
New
York
|
N.Y.
Banking Law Article 6-l Effective for applications made on or after
April
1, 2003
|
High
Cost Home Loan
|
||
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E et
seq. Effective July 1, 2000; amended October 1, 2003 (adding open-end
lines of credit)
|
High
Cost Home Loan
|
||
|
Standard
& Poor’s High Cost Loan Categorization
|
||||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective Date
|
Category
under Applicable
Anti-Predatory
Lending Law
|
||
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev. Code
▇▇▇.
§§ 1349.25 et seq. Effective May 24, 2002
|
Covered
Loan
|
||
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A) Effective
July 1,
2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
||
|
Rhode
Island
|
Rhode
Island Home Loan Protection Act, R.I. Gen. Laws §§ 34-25.2-1 et seq.
Effective December 31, 2006.
|
High
Cost Home Loan
|
||
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇. §§ 37-23-10
et seq. Effective for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
||
|
Tennessee
|
Tennessee
Home Loan Protection Act, Tenn. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq. Effective
January 1, 2007.
|
High
Cost Home Loan
|
||
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act, W.
Va. Code
▇▇▇. §§ 31-17-1 et seq. Effective June 5, ▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇▇▇ Mortgage Loan Act Loan
|
||
|
Standard
& Poor’s Covered Loan Categorization
|
||||
|
State/Jurisdiction
|
Name
of Anti-Predatory
Lending
Law/Effective Date
|
Category
under Applicable
Anti-Predatory
Lending Law
|
||
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq. Effective October 1,
2002 - March 6, 2003
|
Covered
Loan
|
||
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq. Effective November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
||
|
Standard
& Poor’s Home Loan Categorization
|
||||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
||
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq. Effective October 1,
2002 - March 6, 2003
|
Home
Loan
|
||
|
Standard
& Poor’s Home Loan Categorization
|
||||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
||
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq. Effective for loans closed on or after November 27, 2003
|
Home
Loan
|
||
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq. Effective as of
January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
||
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E et
seq. Effective July 1, 2000; amended October 1, 2003 (adding open-end
lines of credit)
|
Consumer
Home Loan
|
||
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇. §§ 37-23-10
et seq. Effective for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
||
Revised
03/01/07
EXHIBIT
G
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the party identified
as responsible for preparing the Securities Exchange Act Reports pursuant to
Section 5.06(a)(ii).
Under
Item 1 of Form 10-D: a) items marked “monthly statement” are required to be
included in the periodic Distribution Date statement under Section 5.02,
provided by the Securities Administrator based on information received from
the
Master Servicer; and b) items marked “Form 10-D report” are required to be in
the Form 10-D report but not the monthly statement, provided by the party
indicated. Information under all other Items of Form 10-D is to be included
in
the Form 10-D report.
|
Form
|
|
Item
|
|
Description
|
|
Servicers
|
|
Master
Servicer
|
|
Securities
Administrator
|
|
Custodian
|
|
Trustee
|
|
Depositor
|
|
Sponsor
|
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-backed
securities.
|
|||||||||||||||||
|
1
|
Distribution
and Pool Performance Information
|
|||||||||||||||||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
||||||||||||||||||
|
(1)
Any applicable record dates, accrual dates, determination dates
for
calculating distributions and actual distribution dates for the
distribution period.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(2)
Cash flows received and the sources thereof for distributions,
fees and
expenses.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
X
(monthly
statement)
|
|||||||||||||||||
G-1
|
Form
|
|
Item
|
|
Description
|
|
Servicers
|
|
Master
Servicer
|
|
Securities
Administrator
|
|
Custodian
|
|
Trustee
|
|
Depositor
|
|
Sponsor
|
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of
the general
purpose of such payments and the party receiving such
payments.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(iii)
Principal, interest and other distributions accrued and paid on
the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
X
(monthly
statement)
|
G-2
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
X
(monthly
statement)
|
|||||||||||||||||
|
(8)
Number and amount of pool assets at the beginning and ending of
each
period, and updated pool composition information, such as weighted
average
coupon, weighted average remaining term, pool factors and prepayment
amounts.
|
X
(monthly
statement)
|
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||||||||||||||||
|
(9)
Delinquency and loss information for the period.
|
X
|
X
|
X
(monthly
statement)
|
|||||||||||||||
|
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool assets.
(methodology)
|
X
|
X
|
G-3
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
X
|
X
|
X
(monthly
statement)
|
|||||||||||||||
|
(11)
Any material modifications, extensions or waivers to pool asset
terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
X
|
X
|
X
(monthly
statement)
|
|||||||||||||||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
X
|
X
|
X
|
|||||||||||||||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
X
(monthly
statement)
|
G-4
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool, any pool asset changes (other than in connection
with a pool asset converting into cash in accordance with its terms),
such
as additions or removals in connection with a prefunding or revolving
period and pool asset substitutions and repurchases (and purchase
rates,
if applicable), and cash flows available for future purchases,
such as the
balances of any prefunding or revolving accounts, if
applicable.
|
X
|
X
|
X
|
|||||||||||||||
|
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
X
|
|||||||||||||||||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
X
|
|||||||||||||||||
|
2
|
Legal
Proceedings
|
G-5
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
||||||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||||||
|
Depositor
|
X
|
|||||||||||||||||
|
Trustee
|
X
|
|||||||||||||||||
|
Issuing
entity
|
X
|
|||||||||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
|||||||||||||||||
|
Custodian
|
X
|
|||||||||||||||||
|
3
|
Sales
of Securities and Use of Proceeds
|
G-6
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
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.
|
X
|
|||||||||||||||||
|
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)
|
X
|
X
|
||||||||||||||||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
|||||||||||||||||
|
Information
from Item 4 of Part II of Form 10-Q
|
X
|
X
|
||||||||||||||||
|
6
|
Significant
Obligors of Pool Assets
|
|||||||||||||||||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
X
|
X
|
||||||||||||||||
|
*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.
|
G-7
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
||||||||||
|
7
|
Significant
Enhancement Provider Information
|
|||||||||||||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
||||||||||||||||||
|
Determining
applicable disclosure threshold
|
X
|
|||||||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
|||||||||||||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
||||||||||||||||||
|
Determining
current maximum probable exposure
|
X
|
|||||||||||||||||
|
Determining
current significance percentage
|
X
|
|||||||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
|||||||||||||||||
|
*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.
|
||||||||||||||||||
|
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
|
The
Responsible Party for the applicable Form 8-K item as indicated
below.
|
|||||||||||||||||
|
9
|
Exhibits
|
|||||||||||||||||
|
Distribution
report
|
X
|
G-8
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
X
|
|||||||||||||||||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
|||||||||||||||||
|
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
|
X
|
X
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
||||||||||||
|
1.02
|
Termination
of a Material Definitive Agreement
|
X
|
X
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
|||||||||||
|
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.
|
||||||||||||||||||
G-9
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
1.03
|
Bankruptcy
or Receivership
|
|||||||||||||||||
|
Disclosure
is required regarding the bankruptcy or receivership, if known
to the
Master Servicer, with respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, affiliated Servicer, other
Servicer
servicing 20% or more of pool assets at time of report, other material
servicers, Certificate Administrator, Trustee, significant obligor,
credit
enhancer (10% or more), derivatives counterparty,
Custodian
|
X
|
X
|
X
|
X
|
X
|
X
|
X
|
|||||||||||
|
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 statement
|
X
|
X
|
||||||||||||||||
|
3.03
|
Material
Modification to Rights of Security Holders
|
G-10
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
X
|
X
|
X
|
X
|
||||||||||||||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
|||||||||||||||||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
X
|
X
|
||||||||||||||||
|
5.06
|
Change
in Shell Company Status
|
|||||||||||||||||
|
[Not
applicable to ABS issuers]
|
X
|
|||||||||||||||||
|
6.01
|
ABS
Informational and Computational Material
|
|||||||||||||||||
|
[Not
included in reports to be filed under Section 3.18]
|
X
|
|||||||||||||||||
|
6.02
|
Change
of Servicer or Trustee
|
|||||||||||||||||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee.
|
X
|
X
|
X
|
X
|
X
|
|||||||||||||
|
Reg
AB disclosure about any new servicer (from entity appointing new
servicer)
or trustee (from Depositor) is also required.
|
X
|
X
|
X
|
|||||||||||||||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
G-11
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
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.
|
X
|
X
|
X
|
|||||||||||||||
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
X
|
|||||||||||||||||
|
6.04
|
Failure
to Make a Required Distribution
|
X
|
X
|
|||||||||||||||
|
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.
|
X
|
|
||||||||||||||||
|
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.
|
X
|
|||||||||||||||||
|
7.01
|
Regulation
FD Disclosure
|
X
|
X
|
X
|
X
|
X
|
X
|
|||||||||||
|
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 security
holders.
|
X
|
G-12
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event.
|
||||||||||||||||
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
|||||||||||||||||
|
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
|
The
Responsible Party for the applicable Form 8-K as indicated
above.
|
|||||||||||||||||
|
15
|
Exhibits
and Financial Statement Schedules
|
|||||||||||||||||
|
Item
1112(b) - Significant
Obligor Financial Information
|
X
|
X
|
||||||||||||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
|
||||||||||||||||||
|
Determining
applicable disclosure threshold
|
X
|
|||||||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
|||||||||||||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information
|
||||||||||||||||||
|
Determining
current maximum probable exposure
|
X
|
|||||||||||||||||
|
Determining
current significance percentage
|
X
|
|||||||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
|||||||||||||||||
G-13
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
||||||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||||||
|
Depositor
|
X
|
|||||||||||||||||
|
Trustee
|
X
|
|||||||||||||||||
|
Issuing
entity
|
X
|
|||||||||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
X
|
||||||||||||||||
|
Custodian
|
X
|
|||||||||||||||||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
|
||||||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||||||
|
Depositor
|
X
|
|||||||||||||||||
|
Trustee
|
X
(with respect to 1119(a) affiliations only)
|
G-14
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||||||
|
Originator
|
X
|
X
|
||||||||||||||||
|
Custodian
|
X
(with respect to affiliations only)
|
|||||||||||||||||
|
Credit
Enhancer/Support Provider
|
X
|
X
|
||||||||||||||||
|
Significant
Obligor
|
X
|
X
|
||||||||||||||||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
X
|
X
|
X
|
X
|
||||||||||||||
|
Item
1123 - Servicer Compliance Statement
|
X
|
X
|
G-15
EXHIBIT
H
ADDITIONAL
DISCLOSURE NOTIFICATION
**SENT
VIA FAX TO [_XXX)XXX-XXXX] AND VIA EMAIL TO [_________________] AND VIA
OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW:
▇▇▇▇▇
Fargo Bank, N.A. as Securities Administrator
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attn:
Corporate Trust Services - MHL 2007-2 - SEC REPORT PROCESSING
MortgageIT
Securities Corp.
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
[___________]
Attn:
[__________________]
RE:
**
Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [__] of the Pooling and Servicing Agreement, dated
as of [________] [__], 2007 among [_____________], as [______], [_____________],
as [______], [_____________], as [______] and [_____________], as [______],
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: [_________________].
H-1
| [NAME OF PARTY], | ||
| as [role] | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
H-2
EXHIBIT
I
CLASS
A
SWAP AGREEMENT
I-1
|
Deutsche
Bank
 Deutsche
Bank AG New York
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
|
August
30, 2007
|
||
|
TO:
|
HSBC
Bank USA, National Association, not individually, but solely as the
Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest
Trust with respect to the MortgageIT Securities Corp. Mortgage Loan
Trust,
Series 2007-2, Mortgage Pass-Through Certificates
|
|
|
ATTENTION:
|
CTLA
- Structured Finance for MHL 2007-2
|
|
|
TELEPHONE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
FACSIMILE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
FROM:
|
Deutsche
Bank AG, New York Branch
|
|
|
E-MAIL:
|
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇
|
|
|
SUBJECT:
|
Interest
Rate Swap
|
|
|
REFERENCE
NUMBER:
|
N681806N
|
The
purpose of this long-form confirmation (“Long-form
Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into on
the
Trade Date specified below (the “Transaction”)
between
Deutsche Bank AG, New York Branch
(“Party A”) and
HSBC
Bank USA, National Association, not individually, but solely as trustee (the
“Supplemental Interest Trust Trustee”) on behalf of the supplemental interest
trust with respect to the MortgageIT Securities Corp. Mortgage Loan Trust,
Series 2007-2, Mortgage Pass-Through Certificates (the “Supplemental Interest
Trust”) (“Party B”) created under the Pooling and Servicing Agreement, dated as
of August 1, 2007, among MortgageIT Securities Corp., as Depositor, ▇▇▇▇▇ Fargo
Bank, National Association, as a Servicer, ▇▇▇▇▇ Fargo Bank, National
Association, Master Servicer and Securities Administrator, and HSBC Bank USA,
National Association, as Trustee (the “Pooling and Servicing Agreement”). This
Long-form Confirmation evidences a complete and binding agreement between you
and us to enter into the Transaction on the terms set forth below and replaces
any previous agreement between us with respect to the subject matter hereof.
Item 2 of this Long-form Confirmation constitutes a “Confirmation”
as
referred to in the ISDA Master Agreement (defined below); Item 3 of this
Long-form Confirmation constitutes a “Schedule”
as
referred to in the ISDA Master Agreement; and Annex A hereto constitutes
Paragraph 13 of a Credit Support Annex to the Schedule.
|
Item
1.
|
The
Confirmation set forth at Item 2 hereof shall supplement, form a
part of,
and be subject to an agreement in the form of the ISDA Master Agreement
(Multicurrency - Cross Border) as published and copyrighted in 1992
by the
International Swaps and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such form
on the
date hereof, with a Schedule as set forth in Item 3 of this Long-form
Confirmation, and an ISDA Credit Support Annex (Bilateral Form -
ISDA
Agreements Subject to New York Law Only version) as published and
copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc., with Paragraph 13 thereof as set forth in Annex
A
hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein shall
be the
sole Transaction governed by such ISDA Master
Agreement.
|
Page
2 of 28
|
Item
2.
|
The
terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
| Type of Transaction: | Interest Rate Swap | |
| Notional Amount: |
With
respect to any Calculation Period, the
lesser of (x) the aggregate Certificate Principal Balance of the
Class A-1
Certificates immediately preceding the Distribution Date which
occurs in
the calendar month of the Floating Rate Payer Payment Date for
such
Calculation Period (determined for this purpose without regard
to any
adjustment of the Floating Rate Payer Payment Date or Distribution
Date
relating to business days) and (y) the amount set forth for such
period on
Schedule I attached hereto.
|
|
| Trade Date: | August 28, 2007 | |
| Effective Date: | August 30, 2007 | |
| Termination Date: |
The
earlier of (x) the Distribution Date
immediately following the first date on which the aggregate principal
balance of the Mortgage Loans and properties acquired in respect
thereof
remaining in the trust fund at the time of purchase is reduced
to less
than or equal to 10% of the aggregate outstanding principal balance
of the
Mortgage Loans as of the Cut-Off Date and (y) the Distribution
Date in
December 2015, subject to adjustment in accordance with the Business
Day
Convention; provided, however, that for the purpose of determining
the
final Fixed Rate Payer Period End Date, Termination Date shall
be subject
to No Adjustment.
|
|
| Fixed Amounts: | ||
|
Fixed
Rate Payer:
|
Party B | |
|
Fixed
Rate Payer
|
||
|
Period
End Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
September
25, 2007,
and ending on the Termination Date, with No
Adjustment.
|
|
|
Fixed
Rate Payer
|
||
|
Payment
Dates:
|
Early
Payment shall be applicable. The Fixed Rate Payer Payment Date
shall be
one (1) Business Day preceding each Fixed Rate payer Period End
Date.
|
|
|
Initial
Upfront
|
||
|
Fixed
Payment
|
USD
4,045,000.00 payable by Deutsche Bank
Securities Inc. to Party A on the Closing Date.
|
|
|
Fixed
Rate:
|
5.22% | |
|
Fixed
Rate Day
|
||
|
Count
Fraction:
|
30/360 |
Page 3
of 28
| Floating Amounts: | ||
|
Floating
Rate Payer:
|
Party A | |
|
Floating
Rate Payer
|
||
|
Period
End Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
September 25, 2007, and ending on the Termination Date, subject
to
adjustment in accordance with the Business Day
Convention.
|
|
|
Floating
Rate Payer
|
||
|
Payment
Dates:
|
Early
Payment shall be applicable. The Floating
Rate Payer Payment Date shall be one (1) Business Day preceding
each
Floating Rate Payer Period End Date.
|
|
|
Floating
Rate for
|
||
|
initial
Calculation Period:
|
5.5075% | |
|
Floating
Rate Option:
|
USD-LIBOR-BBA | |
|
Designated
Maturity:
|
One month | |
|
Floating
Rate Day
|
||
|
Count
Fraction:
|
30/360 | |
|
Reset
Dates:
|
The first day of each Calculation Period. | |
|
Compounding:
|
Inapplicable | |
|
Business
Days:
|
New York | |
|
Business
Day Convention:
|
Following |
Page 4
of 28
| Item 3. |
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
| (a) |
“Specified
Entity”
will not apply to Party A or Party B for any purpose.
|
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
|
(i)
|
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will apply
to
Party B; provided, however, that Section 5(a)(i) is hereby amended
by
replacing the word “third” with the word “first”; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i), any
failure
by Party A to comply with or perform any obligation to be complied
with or
performed by Party A under the Credit Support Annex shall not constitute
an Event of Default under Section 5(a)(i) unless
(A) a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and is
continuing and at least 30 Local Business Days have elapsed since
such
▇▇▇▇▇’▇ Second Trigger Downgrade Event first occurred or (B) a DBRS
Required Ratings Downgrade Event has occurred and is continuing and
at
least 30 calendar days have elapsed since such DBRS Required Ratings
Downgrade Event first occurred.
|
|
(ii)
|
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will not
apply to
Party B.
|
|
(iii)
|
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will not
apply
to Party B except that Section 5(a)(iii)(1) will apply to Party B
solely
in respect of Party B’s obligations under Paragraph 3(b); provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the
Credit
Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a
▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and is continuing and
at least 30 Local Business Days have elapsed since such ▇▇▇▇▇’▇ Second
Trigger Downgrade Event first occurred
or
(B) a DBRS Required Ratings Downgrade Event has occurred and is continuing
and at least 30 calendar days have elapsed since such DBRS Required
Ratings Downgrade Event first
occurred.
|
|
(iv)
|
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will not
apply to
Party B.
|
|
(v)
|
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will not
apply to
Party B.
|
|
(vi)
|
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will not
apply to
Party B, provided, however, that, notwithstanding the foregoing,
an Event
of Default shall not occur under either Section 5(a)(vi)(1) or Section
5(a)(vi)(2) if (A) (I) the default, or other similar event or condition
referred to in Section 5(a)(vi)(1) or the failure to pay referred
to in
Section 5(a)(vi)(2) is a failure to pay or deliver caused by an error
or
omission of an administrative or operational nature, and (II) funds
or the
asset to be delivered were available to such party to enable it to
make
the relevant payment or delivery when due and (III) such payment
or
delivery is made within three (3) Local Business Days following receipt
of
written notice from an interested party of such failure to pay, or
(B)
such party was precluded from paying, or was unable to pay, using
reasonable means, through the office of the party through which it
was
acting for purposes of the relevant Specified Indebtedness, by reason
of
force majeure, act of State, illegality or impossibility. For purposes
of
Section 5(a)(vi), solely with respect to Party
A:
|
Page 5
of 28
“Specified
Indebtedness” will have the meaning specified in Section 14, except that such
term shall not include obligations in respect of deposits received in the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the shareholders’ equity of Party A or, if applicable, a guarantor under an
Eligible Guarantee with credit ratings at least equal to the S&P Required
Ratings Threshold, the ▇▇▇▇▇’▇ Second Trigger Threshold, and the DBRS Approved
Ratings Threshold (as
shown
in the most recent annual audited financial statements of such entity determined
in accordance with generally accepted accounting principles).
|
(vii)
|
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will apply
to
Party B; provided, however, that, for purposes of applying Section
5(a)(vii) to Party B: (A) Section 5(a)(vii)(2) shall not apply, (B)
Section 5(a)(vii)(3) shall not apply to any assignment, arrangement
or
composition that is effected by or pursuant to the Pooling and Servicing
Agreement, (C) Section 5(a)(vii)(4) shall not apply to a proceeding
instituted, or a petition presented, by Party A or any of its Affiliates
(for purposes of Section 5(a)(vii)(4), Affiliate shall have the meaning
set forth in Section 14, notwithstanding anything to the contrary
in this
Agreement), (D) Section 5(a)(vii)(6) shall not apply to any appointment
that is effected by or pursuant to the Pooling and Servicing Agreement,
or
any appointment to which Party B has not yet become subject; (E)
Section
5(a)(vii) (7) shall not apply; (F) Section 5(a)(vii)(8) shall apply
only
to the extent of any event which has an effect analogous to any of
the
events specified in clauses (1), (3), (4), (5) or (6) of Section
5(a)(vii), in each case as modified in this Part 1(c)(vii), and (G)
Section 5(a)(vii)(9) shall not apply.
|
|
(viii)
|
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will not
apply
to Party B.
|
| (d) |
Termination
Events.
|
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence of
such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6 of
this Agreement.
| (i) |
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply
to
Party B.
|
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party to
this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will apply
to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and will
not
apply to Party B.
|
Page 6
of 28
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will not
apply to
Party B.
|
| (f) |
Payments
on Early Termination.
For the purpose of Section 6(e) of this
Agreement:
|
|
(i)
|
Market
Quotation will apply, provided, however, that, notwithstanding anything
to
the contrary in this Agreement, if an Early Termination Date has
been
designated as a result of a Derivative Provider Trigger Event, the
following provisions will apply:
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer which is
(1)
made by an Eligible
Replacement,
(2) for
an amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Eligible Replacement to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of the
Terminated Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be
included.
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by Party
B)
equal to:
|
(a)
|
if,
on or prior to such Early Termination Date, a Market Quotation for
the
relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding, the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
(b)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions has been
accepted by Party B so as to become legally binding and one or more
Market
Quotations from Approved Replacements have been communicated to Party
B
and remain capable of becoming legally binding upon acceptance by
Party B,
the Termination Currency Equivalent of the amount (whether positive
or
negative) of the lowest of such Market Quotations (for the avoidance
of
doubt, (I) a Market Quotation expressed as a negative number is lower
than
a Market Quotation expressed as a positive number and (II) the lower
of
two Market Quotations expressed as negative numbers is the one with
the
largest absolute value); or
|
|
(c)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions is accepted
by
Party B so as to become legally binding and no Market Quotation from
an
Approved Replacement has been communicated to Party B and remains
capable
of becoming legally binding upon acceptance by Party B, Party B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.”
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Early Termination
Date.
|
Page 7
of 28
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party A
an
amount equal to the absolute value of the Settlement Amount in respect of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided, however, that (x) the amounts payable under the
immediately preceding clauses (II) and (III) shall be subject to netting in
accordance with Section 2(c) of this Agreement and (y) notwithstanding any
other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted against any amount payable by Party
B
under the immediately preceding clause (I).”
|
(E)
|
At
any time on or before the Early Termination Date at which two or
more
Market Quotations from Approved Replacements have been communicated
to
Party B and remain capable of becoming legally binding upon acceptance
by
Party B, Party B shall be entitled to accept only the lowest of such
Market Quotations (for the avoidance of doubt, (I) a Market Quotation
expressed as a negative number is lower than a Market Quotation expressed
as a positive number and (II) the lower of two Market Quotations
expressed
as negative numbers is the one with the largest absolute
value).
|
|
(F)
|
In
determining whether or not a Firm Offer satisfies clause (B)(y) of
the
definition of Replacement Transaction and whether or not a proposed
transfer satisfies clause (e)(B)(y) of the definition of Permitted
Transfer, Party B shall act in a commercially reasonable
manner.
|
|
(ii)
|
The
Second Method will apply.
|
| (g) |
“Termination
Currency”
means USD.
|
| (h) |
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
|
Page 8
of 28
| Part 2. |
Tax
Matters.
|
| (a) |
Tax
Representations.
|
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
| (A) |
Party
A makes the following
representation(s):
|
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be
made
by it to the other party under this Agreement. In making this representation,
it
may rely on: the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance
is
placed on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
| (B) |
Party
B makes the following
representation(s):
|
None.
| (ii) |
Payee
Representations.
For the purpose of Section 3(f) of this Agreement:
|
| (A) |
Party
A makes the following
representation(s):
|
It
is a
“foreign person” within the meaning of the applicable U.S. Treasury Regulations
concerning information reporting and backup withholding tax (as in effect on
January 1, 2001), unless Party A provides written notice to Party B that it
is
no longer a foreign person. In respect of any Transaction it enters into through
an office or discretionary agent in the United States or which otherwise is
allocated for United States federal income tax purposes to such United States
trade or business, each payment received or to be received by it under such
Transaction will be effectively connected with its conduct of a trade or
business in the United States.
| (B) |
Party
B makes the following
representation(s):
|
None.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section 2(d)(ii)
shall not apply to Party B as Y, in each case such that Party B shall
not
be required to pay any additional amounts referred to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments by
Party B, no Tax.
Page 9
of 28
| Part 3. |
Agreement
to Deliver Documents.
|
| (a) |
For
the purpose of Section 4(a)(i), tax forms, documents, or certificates
to
be delivered are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
||
|
Party
A
|
An
original properly completed and executed United States Internal Revenue
Service Form W-8ECI or other applicable form (or any successor thereto),
together with appropriate attachments, with respect to any payments
received or to be received by Party A that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A under
this
Agreement.
|
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party B, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered form
becoming inaccurate or incorrect.
|
||
|
Party
B
|
(i)
Upon execution of this Agreement, an original properly completed
and
executed United States Internal Revenue Service Form W-9 (or any
successor
thereto) with respect to any payments received or to be received
by the
initial beneficial owner of payments to Party B under this Agreement,
and
(ii) thereafter, the appropriate tax certification form (i.e., IRS
Form
W-9 or IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8ECI, as applicable (or
any
successor form thereto)) with respect to any payments received or
to be
received by the beneficial owner of payments to Party B under this
Agreement from time to time.
|
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
in the
case of a tax certification form other than a Form W-9, before December
31
of each third succeeding calendar year, (iv) promptly upon the reasonable
demand by Party A, (v) prior to the expiration or obsolescence of
any
previously delivered form, and (vi) promptly upon the information
on any
such previously delivered form becoming inaccurate or
incorrect.
|
Page 10
of 28
| (b) |
For
the purpose of Section 4(a)(ii), other documents to be delivered
are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|||
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver the Agreement, each Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under the Agreement, each Confirmation and any Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, each Confirmation, and any relevant Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized
|
Promptly
upon becoming publicly available
|
Yes
|
|||
|
Party
A
|
Quarterly
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s fiscal quarter prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized
|
Promptly
upon becoming publicly available
|
Yes
|
|||
|
Party
A
|
An
opinion of counsel to Party A reasonably acceptable to Party
B.
|
Upon
the execution and delivery of this Agreement
|
No
|
Page 11
of 28
| Part 4. |
Miscellaneous.
|
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A:
Any
notice to Party A relating to a particular Transaction shall be delivered to
the
address or facsimile number specified in the Confirmation of such Transaction.
Any notice delivered for purposes of Sections 5 and 6 (other than notices under
Section 5(a)(i) with respect to Party A) of this Agreement shall be delivered
to
the following address:
Deutsche
Bank AG, Head Office
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention:
Legal Department
Fax
No:
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
Address
for notices or communications to Party B:
|
Address:
|
HSBC
Bank USA, National Association
|
||
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
|
|||
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|||
|
Attention:
|
CTLA
- Structured Finance for MHL 2007-2
|
||
|
Facsimile:
|
▇▇▇-▇▇▇-▇▇▇▇
|
With
a
copy to:
|
Address:
|
▇▇▇▇▇
Fargo Bank, N.A.
|
||
|
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|||
|
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|||
|
Attention:
|
Client
Manager MHL 2007-2
|
||
|
Facsimile:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Phone:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
| (For all purposes) |
| (b) |
Process
Agent.
For the purpose of Section 13(c):
|
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A; provided, however, that if an Event
of
Default shall have occurred with respect to Party A, Party B shall
have
the right to appoint as Calculation Agent a financial institution
which
would qualify as a Reference Market-maker, reasonably acceptable
to Party
A, the cost for which shall be borne by Party
A.
|
Page
12 of 28
| (f) |
Credit
Support Document.
|
Party
A:
The
Credit Support Annex, and any guarantee in support of Party A’s obligations
under this Agreement.
Party
B: The
Credit Support Annex, solely in respect of Party B’s obligations under Paragraph
3(b) of the Credit Support Annex.
|
(g)
|
Credit
Support Provider.
|
Party
A: The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B: None.
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the State
of
New York shall govern their rights and duties in whole (including
any
claim or controversy arising out of or relating to this Agreement),
without regard to the conflict of law provisions thereof other than
New
York General Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
Subparagraph (ii) of Section 2(c) will apply to each Transaction
hereunder.
|
|
(j)
|
Affiliate.
“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes of
this
Agreement, including for purposes of Section 6(b)(ii).
|
Page 13
of 28
| Part 5. |
Other
Provisions.
|
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each Transaction
under this Agreement are subject to the 2000 ISDA Definitions as
published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions set
forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part of
this
Agreement, except that (i) references in the Definitions to a “Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the Schedule to the ISDA Master
Agreement; each reference herein to a “Paragraph” will be construed as a
reference to a Paragraph of the Credit Support Annex.
| (b) |
Amendments
to ISDA Master Agreement.
|
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
| (ii) |
Conditions
Precedent. Section
2(a)(iii) is hereby amended by adding the following at the end thereof:
|
Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default with
respect to Party B or Potential Event of Default with respect to Party B has
occurred and been continuing for more than 30 Local Business Days and no Early
Termination Date in respect of the Affected Transactions has occurred or been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth in
Section 2(a)(iii)(1) with respect to such specific occurrence of such Event
of
Default or such Potential Event of Default (the “Specific
Event”);
provided, however, for the avoidance of doubt, the obligations of Party A under
Section 2(a)(i) shall be subject to the condition precedent set forth in Section
2(a)(iii)(1) (subject to the foregoing) with respect to any subsequent
occurrence of the same Event of Default with respect to Party B or Potential
Event of Default with respect to Party B after the Specific Event has ceased
to
be continuing and with respect to any occurrence of any other Event of Default
with respect to Party B or Potential Event of Default with respect to Party
B
that occurs subsequent to the Specific Event.
|
(iii)
|
Change
of Account.
Section 2(b) is hereby amended by the addition of the following after
the
word “delivery” in the first line thereof: “to another account in the same
legal and tax jurisdiction as the original
account”.
|
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the other
party (whether written or oral) regarding any Transaction hereunder,
other
than the representations expressly made in this Agreement or the
Confirmation in respect of that Transaction and (ii) it has consulted
with
its own legal, regulatory, tax, business, investment, financial and
accounting advisors to the extent it has deemed necessary, and it
has made
its own investment, hedging and trading decisions based upon its
own
judgment and upon any advice from such advisors as it has deemed
necessary
and not upon any view expressed by the other
party.
|
Page 14
of 28
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) each Transaction and has
made its
own decision to enter into the Transaction and (ii) it understands
the
terms, conditions and risks of the Transaction and is willing and
able to
accept those terms and conditions and to assume those risks, financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R. 35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended (i) by deleting the words “or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected Party,”
and the words “, which consent will not be withheld if such other party’s
policies in effect at such time would permit it to enter into transactions
with the transferee on the terms proposed”and (ii) by deleting the words
“to transfer” and inserting the words “to effect a Permitted Transfer” in
lieu thereof.
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word “non-”, (ii) deleting “; and” from the
end of subparagraph (i) and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby amended
by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
|
(i)
|
Failure
to Post Collateral. If
Party A has failed to comply with or perform any obligation to be
complied
with or performed by Party A in accordance with the Credit Support
Annex
and such failure has not given rise to an Event of Default under
Section
5(a)(i) or Section 5(a)(iii), then an Additional Termination Event
shall
have occurred with respect to Party A and Party A shall be the sole
Affected Party with respect to such Additional Termination Event.
|
|
(ii)
|
Second
Rating Trigger Replacement.
The occurrence of any event described in this Part 5(c)(ii) shall
constitute an Additional Termination Event with respect to Party
A and
Party A shall be the sole Affected Party with respect to such Additional
Termination Event.
|
|
(A)
|
A
▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and is continuing and
at least 30 Local Business Days have elapsed since such ▇▇▇▇▇’▇ Second
Trigger Downgrade Event first occurred, and at least one Eligible
Replacement has made a Firm Offer that would, assuming the occurrence
of
an Early Termination Date, qualify as a Market Quotation (on the
basis
that Part 1(f)(i)(A) applies) and which remains capable of becoming
legally binding upon acceptance.
|
|
(B)
|
An
S&P Required Ratings Downgrade Event has occurred and is continuing
and at least 60 calendar days have elapsed since such S&P Required
Ratings Downgrade Event first
occurred.
|
|
(C)
|
A
DBRS Required Ratings Downgrade Event has occurred and is continuing
and
at least 30 calendar days have elapsed since such DBRS Required Ratings
Downgrade Event first occurred.
|
Page 15
of 28
|
(iii)
|
Amendment
of Pooling and Servicing Agreement.
If, without the prior written consent of Party A where such consent
is
required under the Pooling and Servicing Agreement (such consent
not to be
unreasonably withheld, conditioned or delayed), an amendment is made
to
the Pooling and Servicing Agreement which amendment could reasonably
be
expected to have a material adverse effect on the interests of Party
A
(excluding, for the avoidance of doubt, any amendment to the Pooling
and
Servicing Agreement that is entered into solely for the purpose of
appointing a successor servicer, master servicer, securities
administrator, trustee or other service provider) under this Agreement,
an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event.
|
|
(iv)
|
[Reserved.]
|
|
(v)
|
[Reserved.]
|
| (vi) |
[Reserved.]
|
|
(d)
|
Required
Ratings Downgrade Event.
If
a Required Ratings Downgrade Event has occurred and is continuing,
then
Party A shall, at its own expense, use commercially reasonable efforts
to,
as soon as reasonably practicable, either (A) effect a Permitted
Transfer
or (B)
procure an Eligible Guarantee by a guarantor with credit ratings
at least
equal to the S&P Required Ratings Threshold, the ▇▇▇▇▇’▇ Second
Trigger Threshold, and the DBRS Approved Ratings
Threshold.
|
|
(e)
|
Compliance
with Item 1115 of Regulation AB.
|
Party
A
and Party B hereby agree that the terms of the Item 1115 Agreement, dated as
of
August 29, 2007 (the “Item
1115 Agreement”),
among
DB Structured Products, Inc., as Sponsor, MortgageIT Securities Corp., as
Depositor, and Deutsche Bank AG, New York Branch, as Derivative Provider, shall
be incorporated by reference into this Agreement and Party B and the Securities
Administrator shall be an express third party beneficiary of the Item 1115
Agreement. A copy of the Item 1115 Agreement is annexed hereto at Annex
B.
|
(f)
|
Transfers.
|
| (i) |
Section
7 is hereby amended to read in its entirety as
follows:
|
“Neither
this Agreement nor any interest or obligation in or under this Agreement may
be
transferred (whether by way of security or otherwise) by either party unless
(a)
the prior written consent of the other party is obtained and (b) the Rating
Agency Condition has been satisfied with respect to S&P and DBRS, except
that:
|
(a)
|
Party
A may make a Permitted Transfer (1) pursuant to Section 6(b)(ii)
or the
Item 1115 Agreement, (2) pursuant to a consolidation or amalgamation
with,
or merger with or into, or transfer of all or substantially all its
assets
to, another entity (but without prejudice to any other right or remedy
under this Agreement), or (3) at any time at which no Relevant Entity
has
credit ratings at least equal to the Approved Ratings
Threshold;
|
|
(b)
|
Party
B may transfer its rights and obligations hereunder in connection
with a
transfer pursuant to Section 9.09 of
the Pooling and Servicing Agreement;
and
|
|
(c)
|
a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section
6(e).
|
Any
purported transfer that is not in compliance with this Section will be void.
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains an offer
that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at Party
A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
|
Page 16
of 28
|
(g)
|
Non-Recourse.
Party A acknowledges and agrees that, notwithstanding any provision
in
this Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from the
Supplemental Interest Trust and the proceeds thereof, in accordance
with
the priority of payments and other terms of the Pooling and Servicing
Agreement and that Party A will not have any recourse to any of the
directors, officers, agents, employees, shareholders or affiliates
of the
Party B with respect to any claims, losses, damages, liabilities,
indemnities or other obligations in connection with any transactions
contemplated hereby. In the event that the Supplemental Interest
Trust and
the proceeds thereof, should be insufficient to satisfy all claims
outstanding and following the realization of the account held by
the
Supplemental Interest Trust and the proceeds thereof, any claims
against
or obligations of Party B under the ISDA Master Agreement or any
other
confirmation thereunder still outstanding shall be extinguished and
thereafter not revive. The Supplemental Interest Trust Trustee shall
not
have liability for any failure or delay in making a payment hereunder
to
Party A due to any failure or delay in receiving amounts in the account
held by the Supplemental Interest Trust from the Trust created pursuant
to
the Pooling and Servicing Agreement. This provision will survive
the
termination of this Agreement.
|
|
(h)
|
Timing
of Payments
by Party B upon Early Termination.
Notwithstanding anything to the contrary in Section 6(d)(ii), to
the
extent that all or a portion (in either case, the “Unfunded Amount”) of
any amount that is calculated as being due in respect of any Early
Termination Date under Section 6(e) from Party B to Party A will
be paid
by Party B from amounts other than any upfront payment paid to Party
B by
an Eligible Replacement that has entered into a Replacement Transaction
with Party B, then such Unfunded Amount shall be due on the next
subsequent Distribution Date following the date on which the payment
would
have been payable as determined in accordance with Section 6(d)(ii),
and
on any subsequent Distribution Dates until paid in full (or if such
Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which
the
payment would have been payable as determined in accordance with
Section
6(d)(ii) is a Distribution Date, such payment will be payable on
such
Distribution Date.
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of any
rights
or obligations under this Agreement shall be made by either party
unless
each Rating
Agency has been provided prior written notice of such designation
or
transfer.
|
|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or Part
1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any
Set-off.”.
|
|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Rating Agencies
has
been provided prior written notice of the same and the Rating Agency
Condition is satisfied with respect to S&P and DBRS.
|
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence of
any
event or condition that constitutes (or that with the giving of notice
or
passage of time or both would constitute) an Event of Default or
Termination Event with respect to such party, promptly to give the
other
Party and to each Rating Agency notice of such event or condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
|
| (m) |
Proceedings.
No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Supplemental Interest Trust, or the trust formed pursuant
to the
Pooling and Servicing Agreement, in any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings
under any federal or state bankruptcy or similar law for a period
of one
year (or, if longer, the applicable preference period) and one day
following payment in full of the Certificates and any Notes. This
provision will survive the termination of this Agreement.
|
Page 17
of 28
|
(n)
|
Supplemental
Interest Trust Trustee Liability Limitations.
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed and delivered by HSBC Bank USA, National Association
(“HSBC”) not in its individual capacity, but solely as the Supplemental
Interest Trust Trustee under the Pooling and Servicing Agreement
in the
exercise of the powers and authority conferred and invested in it
thereunder; (b) the Supplemental Interest Trust Trustee has been
directed
pursuant to the Pooling and Servicing Agreement to enter into this
Agreement and to perform its obligations hereunder; (c) each of the
representations, warranties, covenants, undertakings and agreements
herein
made on behalf of the Supplemental Interest Trust is made and intended
not
as a personal representation of the Supplemental Interest Trust Trustee
but is made and intended for the purpose of binding only the Supplemental
Interest Trust; and (d) nothing herein contained shall be construed
as
creating any liability on HSBC, individually or personally, to perform
any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties who are signatories
to this
Agreement and by any person claiming by, through or under such parties
and
(e) under no circumstances shall HSBC in its individual capacity
be
personally liable for the payment of any indemnity, indebtedness,
fees or
expenses of the Supplemental Interest Trust or any payments hereunder
or
for the breach or failure of any obligation, representation, warranty
or
covenant made or undertaken under this
Agreement.
|
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement, or
the
application thereof to any party or circumstance, shall be held to
be
invalid or unenforceable (in whole or in part) in any respect, the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used
in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Agent
for Party B. Party
A acknowledges that the Depositor has appointed the Supplemental
Interest
Trust Trustee and the Securities Administrator as agents under the Pooling
and Servicing Agreement to carry out certain functions on behalf
of Party
B, and that the Supplemental Interest Trust Trustee and the Securities
Administrator shall be entitled to give notices and to perform and
satisfy
the obligations of Party B hereunder on behalf of Party
B.
|
|
(q)
|
[Reserved.]
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any
time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring or
recording, and agrees to notify such personnel of such monitoring
or
recording. Each party agrees to provide such recording to the other
party
upon reasonable request.
|
|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in respect
of
any suit, action or proceeding relating to this Agreement or any
Credit
Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master Agreement
(Multicurrency -
Crossborder) as published and copyrighted in 1992 by the International
Swaps and Derivatives Association,
Inc.
|
Page 18
of 28
|
(u)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party B
of other
payment instructions, any and all amounts payable by Party A to Party
B
under this Agreement shall be paid to the account specified in Item
4 of
this Long-form Confirmation, below.
|
|
(v)
|
Additional
representations.
|
|
(i)
|
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that Party A’s obligations under this Agreement rank pari
passu with all of Party A’s other unsecured, unsubordinated obligations
except those obligations preferred by operation of
law.
|
|
(ii)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the Transaction
as principal and not as agent of any person. The Supplemental Interest
Trust Trustee represents to Party A on the date on which the Supplemental
Interest Trust Trustee executes this Agreement that it is executing
the
Agreement in its capacity as the Supplemental Interest Trust
Trustee.
|
|
(w)
|
Acknowledgements.
|
|
(i)
|
Substantial
financial transactions.
Each party hereto is hereby advised and acknowledges as of the date
hereof
that the other party has engaged in (or refrained from engaging in)
substantial financial transactions and has taken (or refrained from
taking) other material actions in reliance upon the entry by the
parties
into the Transaction being entered into on the terms and conditions
set
forth herein and in the Pooling and Servicing Agreement relating
to such
Transaction, as applicable. This paragraph shall be deemed repeated
on the
trade date of each Transaction.
|
|
(ii)
|
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if any,
of any
other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and 560
thereof and the applicable definitions in Section 101 thereof), the
parties acknowledge and agree that all Transactions entered into
hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the parties
under
Section 6 of this Agreement will constitute contractual rights to
liquidate Transactions, that any margin or collateral provided under
any
margin, collateral, security, pledge, or similar agreement related
hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to the
rights
under, and protections afforded by, Sections 362, 546, 556, and 560
of the
Bankruptcy Code.
|
|
(x)
|
[Reserved.]
|
|
(y)
|
[Reserved.]
|
| (z) |
Additional
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold, the Moody’s First Trigger
Ratings Threshold, and the DBRS Approved Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (d) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“DBRS”
means
Dominion Bond Rating Service, or any successor thereto.
Page 19
of 28
“DBRS
Approved Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
DBRS of “AA(low)” and a short-term unsecured and unsubordinated debt rating from
DBRS of “R-1(middle)”.
“DBRS
Required Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings from DBRS at least equal to the
DBRS
Required Ratings Threshold.
“DBRS
Required Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, a
long-term unsecured and unsubordinated debt rating from DBRS of
“BBB”.
“Derivative
Provider Trigger Event”
means
(i) an Event of Default with respect to which Party A is a Defaulting Party,
(ii) a Termination Event with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
of
Party A under this Agreement (or, solely for purposes of the definition of
Eligible Replacement, all present and future obligations of such Eligible
Replacement under this Agreement or its replacement, as applicable) which is
provided by a guarantor as principal debtor rather than surety and which is
directly enforceable by Party B, the form and substance of which guarantee
are
subject to the Rating Agency Condition with respect to S&P and DBRS, and
either (A) a law firm has given a legal opinion confirming that none of the
guarantor’s payments to Party B under such guarantee will be subject to
deduction
or Tax collected by withholding and such opinion has been delivered to Moody’s,
or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to deduction or Tax collected by withholding, such
guarantor is required to pay such additional amount as is necessary to ensure
that the net amount actually received by Party B (free and clear of any Tax
collected by withholding) will equal the full amount Party B would have received
had no such deduction or withholding been required, or (C) in the event that
any
payment under such guarantee is made net of deduction or withholding for Tax,
Party A is required, under Section 2(a)(i), to make such additional payment
as
is necessary to ensure that the net amount actually received by Party B from
the
guarantor will equal the full amount Party B would have received had no such
deduction or withholding been required.
“Eligible
Replacement”
means an
entity (A) that lawfully could perform the obligations owing to Party B under
this Agreement (or its replacement, as applicable), and (B)
(I)
(x) which has credit ratings from S&P at least equal to the S&P Required
Ratings Threshold or (y) all
present
and future obligations of which entity owing to Party B under this Agreement
(or
its replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from S&P at least equal to the
S&P Required Ratings Threshold, in either case if S&P is a Rating
Agency, (II) (x) which has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold or (y) all present and future
obligations of which entity owing to Party B under this Agreement (or its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, in either case if ▇▇▇▇▇’▇ is a Rating
Agency, and (III) (x) which has credit ratings from DBRS at least equal to
the
applicable DBRS Approved Ratings Threshold or (y) all present and future
obligations of which entity owing to Party B under this Agreement (or its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from DBRS at least equal to the
DBRS
Approved Ratings Threshold, in either case if DBRS is a Rating Agency, and
(C)
that has executed an Item 1115 Agreement with Depositor.
“Financial
Institution”
means
a
bank, broker/dealer, insurance company, structured investment company or
derivative product company.
“Firm
Offer”
means a
quotation from an Eligible Replacement (i) in an amount equal to the actual
amount payable by or to Party B in consideration of an agreement between Party
B
and such Eligible Replacement to replace Party A as the counterparty to this
Agreement by way of novation or, if such novation is not possible, an agreement
between Party B and such Eligible Replacement to enter into a Replacement
Transaction (assuming that all Transactions hereunder become Terminated
Transactions), and (ii) that constitutes an offer by such Eligible Replacement
to replace Party A as the counterparty to this Agreement or enter a Replacement
Transaction that will become legally binding upon such Eligible Replacement
upon
acceptance by Party B.
Page
20 of 28
“Moody’s”
means
▇▇▇▇▇’▇ Investors Service,
Inc.,
or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Downgrade
Event” means
that no
Relevant Entity has credit ratings from Moody’s at least equal to the Moody’s
Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A, pursuant to Section 6(b)(ii) or the Item 1115
Agreement, or which is described in Sections 7(a)(2) or (3) (as amended herein),
to a transferee (the “Transferee”)
of
Party A’s rights, liabilities, duties and obligations under this Agreement,
with
respect to which transfer each of the following conditions is
satisfied:
(a) the
Transferee is an Eligible Replacement; (b) Party A and the Transferee are both
“dealers in notional principal contracts” within the meaning of Treasury
regulations section 1.1001-4; (c) as of the date of such transfer the Transferee
would not be required to withhold or deduct on account of Tax from any payments
under this Agreement or would be required to gross up for such Tax under Section
2(d)(i)(4); (d) an Event of Default or Termination Event would not occur as
a
result of such transfer; (e) the Transferee contracts with Party B pursuant
to a
written instrument (the “Transfer
Agreement”)
(A)
(i) on terms which are
effective to transfer to the Transferee all, but not less than all, of Party
A’s
rights, liabilities, duties and obligations under the Agreement and all relevant
Transactions, which terms are identical to the terms of this Agreement, other
than party names, dates relevant to the effective date of such transfer, tax
representations (provided that the representations in Part 2(a)(i) are not
modified) and any other representations regarding the status of the substitute
counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2) or Part
5(v)(ii), notice information and account details, and (ii) each Rating Agency
has been given prior written notice of such transfer,
or (B)
(i) on terms that (x) have the effect of preserving for Party B the economic
equivalent of all payment and delivery obligations (whether absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
under this Agreement immediately before such transfer and (y) are, in all
material respects, no less beneficial for Party B than the terms of this
Agreement immediately before such transfer, as determined by Party B, and (ii)
Moody’s has been given prior written notice of such transfer and the Rating
Agency Condition is satisfied with respect to S&P and DBRS; (f) Party A will
be responsible for any costs or expenses incurred in connection with such
transfer (including any replacement cost of entering into a replacement
transaction); and (g) such transfer otherwise complies with the terms of the
Pooling and Servicing Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder and
each Rating Agency specified in connection with such proposed act or omission,
that the party proposing such act or failure to act must consult with each
of
the specified Rating Agencies and receive from each such Rating Agency prior
written confirmation that the proposed action or inaction would not cause a
downgrade or withdrawal of the then-current rating of any Certificates or
Notes.
“Rating
Agencies”
mean,
with respect to any date of determination, each of S&P, Moody’s, and DBRS,
to the extent that each such rating agency is then providing a rating for any
of
the MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2, Mortgage
Pass-Through Certificates (the “Certificates”) or any notes backed by any of the
Certificates (the “Notes”).
“Relevant
Entities” mean
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
Page
21 of 28
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (A) has terms which would be
effective to transfer to a transferee all, but not less than all, of Party
A’s
rights, liabilities, duties and obligations under this Agreement and all
relevant Transactions, which terms are identical to the terms of this Agreement,
other than party names, dates relevant to the effective date of such transfer,
tax representations (provided that the representations in Part 2(a)(i) are
not
modified) and any other representations regarding the status of the substitute
counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2) or Part
5(v)(ii), notice information and account details, save for the exclusion of
provisions relating to Transactions that are not Terminated Transactions, or
(B)
(x) would have the effect of preserving for Party B the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
under this Agreement in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early
Termination Date, have been required after that date, and (y) has terms which
are, in all material respects, no less beneficial for Party B than those of
this
Agreement (save for the exclusion of provisions relating to Transactions that
are not Terminated Transactions), as determined by Party B.
“Required
Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the Required
Ratings Threshold.
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold, the Moody’s Second Trigger
Ratings Threshold, and the DBRS Required Ratings Threshold.
“S&P”
means
Standard & Poor’s Rating Services, a division
of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
of
“A-1” from S&P, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of “A+” from
S&P.
“S&P
Required Ratings Downgrade Event” means
that no Relevant Entity has credit ratings from S&P at least equal to the
S&P Required Ratings Threshold.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, (I)
if
such entity is a Financial Institution, a short-term unsecured and
unsubordinated debt rating of “A-2” from S&P, or, if such entity does not
have a short-term unsecured and unsubordinated debt
rating
from S&P, a long-term unsecured and unsubordinated debt rating or
counterparty rating of “BBB+” from S&P, or (II) if such entity is not a
Financial Institution, a short-term unsecured and unsubordinated debt rating
of
“A-1” from S&P, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of “A+” from
S&P.
[Remainder
of this page intentionally left blank.]
Page
22 of 28
| Item 4. |
Account
Details and Settlement Information:
|
Payments
to Party A:
|
A/C
With:
|
DB
Trust Co. Americas, New York
|
||
|
Swift
Code:
|
BKTRUUS33
/ ABA ▇▇▇▇▇▇▇▇▇
|
||
|
Favour
of:
|
Deutsche
Bank AG, New York
|
||
|
Account
Number:
|
01
473 969
|
||
|
Reference:
|
N681806N
|
||
| Payments to Party B: |
▇▇▇▇▇
Fargo Bank, NA
|
||
|
ABA
#▇▇▇▇▇▇▇▇▇
|
|||
|
Account
Name: SAS Clearing
|
|||
|
Account
# ▇▇▇▇▇▇▇▇▇▇
|
|||
|
FFC
to: MortgageIT MHL 2007-2, Swap Acct #
53170301
|
|||
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument.
Page
23 of 28
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
| Very truly yours, | ||||
| DEUTSCHE BANK AG, NEW YORK BRANCH | ||||
| By: | /s/ | |||
|
Name: |
||||
| Title: | ||||
| By: | /s/ | |||
|
Name: |
||||
| Title: |
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts and
confirms the terms of the foregoing as of the date hereof.
HSBC
BANK
USA, NATIONAL ASSOCIATION, NOT INDIVIDUALLY, BUT SOLELY AS THE SUPPLEMENTAL
INTEREST TRUST TRUSTEE ON BEHALF OF THE SUPPLEMENTAL INTEREST TRUST WITH RESPECT
TO THE MORTGAGEIT SECURITIES CORP. MORTGAGE LOAN TRUST, SERIES 2007-2, MORTGAGE
PASS-THROUGH CERTIFICATES
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ |
||||
| Title: Vice President |
DEUTSCHE
BANK SECURITIES INC.,
solely
with respect to the Initial Upfront Fixed Payment in Item 2 of this
Agreement
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||||
| Title: Director |
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | |||
|
Name: ▇▇▇▇ ▇▇▇▇ |
||||
| Title: Vice President |
Chairman
of the Supervisory Board: Clemens Börsig
Management
Board: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Chairman), ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ von Heydebreck,
▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Page
24 of 28
SCHEDULE
I
(All
such
dates subject to No Adjustment with respect to Fixed Rate Payer Period End
Dates
and adjustment in accordance with the Following Business Day Convention with
respect to Floating Rate Payer Period End Dates)
|
From
and including:
|
To
but excluding:
|
Notional
Amount (USD):
|
||
|
30-Aug-07
|
25-Sep-07
|
821,837,000.00
|
||
|
25-Sep-07
|
25-Oct-07
|
819,974,597.30
|
||
|
25-Oct-07
|
25-Nov-07
|
817,669,335.30
|
||
|
25-Nov-07
|
25-Dec-07
|
814,922,058.02
|
||
|
25-Dec-07
|
25-Jan-08
|
811,734,283.17
|
||
|
25-Jan-08
|
25-Feb-08
|
808,108,205.05
|
||
|
25-Feb-08
|
25-Mar-08
|
804,046,695.97
|
||
|
25-Mar-08
|
25-Apr-08
|
799,553,305.84
|
||
|
25-Apr-08
|
25-May-08
|
794,632,260.19
|
||
|
25-May-08
|
25-Jun-08
|
789,288,456.29
|
||
|
25-Jun-08
|
25-Jul-08
|
783,527,457.75
|
||
|
25-Jul-08
|
25-Aug-08
|
777,355,487.13
|
||
|
25-Aug-08
|
25-Sep-08
|
770,779,417.08
|
||
|
25-Sep-08
|
25-Oct-08
|
763,806,759.47
|
||
|
25-Oct-08
|
25-Nov-08
|
756,445,653.04
|
||
|
25-Nov-08
|
25-Dec-08
|
748,704,849.17
|
||
|
25-Dec-08
|
25-Jan-09
|
740,593,696.10
|
||
|
25-Jan-09
|
25-Feb-09
|
732,122,121.39
|
||
|
25-Feb-09
|
25-Mar-09
|
723,300,612.90
|
||
|
25-Mar-09
|
25-Apr-09
|
714,140,198.11
|
||
|
25-Apr-09
|
25-May-09
|
704,652,421.95
|
||
|
25-May-09
|
25-Jun-09
|
694,849,323.22
|
||
|
25-Jun-09
|
25-Jul-09
|
684,743,409.57
|
||
|
25-Jul-09
|
25-Aug-09
|
674,347,631.20
|
||
|
25-Aug-09
|
25-Sep-09
|
663,675,353.23
|
||
|
25-Sep-09
|
25-Oct-09
|
652,740,327.03
|
||
|
25-Oct-09
|
25-Nov-09
|
641,556,660.33
|
||
|
25-Nov-09
|
25-Dec-09
|
630,138,786.41
|
||
|
25-Dec-09
|
25-Jan-10
|
618,511,897.58
|
||
|
25-Jan-10
|
25-Feb-10
|
607,080,726.13
|
||
|
25-Feb-10
|
25-Mar-10
|
595,843,535.41
|
||
|
25-Mar-10
|
25-Apr-10
|
584,797,084.56
|
||
|
25-Apr-10
|
25-May-10
|
573,938,186.61
|
||
|
25-May-10
|
25-Jun-10
|
563,263,707.62
|
||
|
25-Jun-10
|
25-Jul-10
|
552,770,565.73
|
||
|
25-Jul-10
|
25-Aug-10
|
542,455,730.38
|
||
|
25-Aug-10
|
25-Sep-10
|
532,316,221.40
|
||
|
25-Sep-10
|
25-Oct-10
|
522,349,108.20
|
||
|
25-Oct-10
|
25-Nov-10
|
512,551,508.97
|
||
|
25-Nov-10
|
25-Dec-10
|
502,920,589.82
|
||
|
25-Dec-10
|
25-Jan-11
|
493,453,564.03
|
||
|
25-Jan-11
|
25-Feb-11
|
484,147,691.28
|
||
|
25-Feb-11
|
25-Mar-11
|
475,000,276.82
|
||
|
25-Mar-11
|
25-Apr-11
|
466,008,670.77
|
||
|
25-Apr-11
|
25-May-11
|
457,170,267.38
|
||
|
25-May-11
|
25-Jun-11
|
448,482,504.24
|
Page
25 of 28
|
25-Jun-11
|
25-Jul-11
|
439,942,861.65
|
||
|
25-Jul-11
|
25-Aug-11
|
431,548,861.82
|
||
|
25-Aug-11
|
25-Sep-11
|
423,298,068.25
|
||
|
25-Sep-11
|
25-Oct-11
|
415,188,085.02
|
||
|
25-Oct-11
|
25-Nov-11
|
407,216,556.09
|
||
|
25-Nov-11
|
25-Dec-11
|
399,381,164.69
|
||
|
25-Dec-11
|
25-Jan-12
|
391,679,632.63
|
||
|
25-Jan-12
|
25-Feb-12
|
384,109,719.69
|
||
|
25-Feb-12
|
25-Mar-12
|
376,669,222.96
|
||
|
25-Mar-12
|
25-Apr-12
|
369,355,976.25
|
||
|
25-Apr-12
|
25-May-12
|
362,167,849.46
|
||
|
25-May-12
|
25-Jun-12
|
355,102,748.00
|
||
|
25-Jun-12
|
25-Jul-12
|
348,158,612.20
|
||
|
25-Jul-12
|
25-Aug-12
|
341,333,416.71
|
||
|
25-Aug-12
|
25-Sep-12
|
334,625,169.96
|
||
|
25-Sep-12
|
25-Oct-12
|
328,271,496.15
|
||
|
25-Oct-12
|
25-Nov-12
|
322,029,260.62
|
||
|
25-Nov-12
|
25-Dec-12
|
315,896,575.35
|
||
|
25-Dec-12
|
25-Jan-13
|
309,871,583.88
|
||
|
25-Jan-13
|
25-Feb-13
|
303,952,460.74
|
||
|
25-Feb-13
|
25-Mar-13
|
298,137,411.00
|
||
|
25-Mar-13
|
25-Apr-13
|
292,424,669.71
|
||
|
25-Apr-13
|
25-May-13
|
286,812,501.44
|
||
|
25-May-13
|
25-Jun-13
|
281,299,199.73
|
||
|
25-Jun-13
|
25-Jul-13
|
275,883,086.70
|
||
|
25-Jul-13
|
25-Aug-13
|
270,562,512.49
|
||
|
25-Aug-13
|
25-Sep-13
|
265,335,854.84
|
||
|
25-Sep-13
|
25-Oct-13
|
260,275,919.07
|
||
|
25-Oct-13
|
25-Nov-13
|
255,305,732.87
|
||
|
25-Nov-13
|
25-Dec-13
|
250,423,762.84
|
||
|
25-Dec-13
|
25-Jan-14
|
245,628,501.34
|
||
|
25-Jan-14
|
25-Feb-14
|
240,918,466.00
|
||
|
25-Feb-14
|
25-Mar-14
|
236,292,199.35
|
||
|
25-Mar-14
|
25-Apr-14
|
231,748,268.40
|
||
|
25-Apr-14
|
25-May-14
|
227,285,264.22
|
||
|
25-May-14
|
25-Jun-14
|
222,901,801.54
|
||
|
25-Jun-14
|
25-Jul-14
|
218,596,518.37
|
||
|
25-Jul-14
|
25-Aug-14
|
214,368,075.60
|
||
|
25-Aug-14
|
25-Sep-14
|
210,215,156.62
|
||
|
25-Sep-14
|
25-Oct-14
|
206,272,253.47
|
||
|
25-Oct-14
|
25-Nov-14
|
202,399,786.86
|
||
|
25-Nov-14
|
25-Dec-14
|
198,596,538.13
|
||
|
25-Dec-14
|
25-Jan-15
|
194,861,309.33
|
||
|
25-Jan-15
|
25-Feb-15
|
191,192,922.79
|
||
|
25-Feb-15
|
25-Mar-15
|
187,590,220.85
|
||
|
25-Mar-15
|
25-Apr-15
|
184,052,065.50
|
||
|
25-Apr-15
|
25-May-15
|
180,577,338.04
|
||
|
25-May-15
|
25-Jun-15
|
177,164,938.76
|
||
|
25-Jun-15
|
25-Jul-15
|
173,813,786.64
|
||
|
25-Jul-15
|
25-Aug-15
|
170,522,819.01
|
||
|
25-Aug-15
|
25-Sep-15
|
167,290,991.26
|
Page
26 of 28
|
25-Sep-15
|
25-Oct-15
|
164,236,247.76
|
||
|
25-Oct-15
|
25-Nov-15
|
161,235,599.92
|
||
|
25-Nov-15
|
25-Dec-15
|
158,288,110.23
|
Page
27 of 28
Annex
A
Paragraph
13 of the Credit Support Annex
Page
28 of 28
Annex
B
Item
1115 Agreement
ANNEX
A
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of August 30, 2007 between
Deutsche
Bank AG, New York Branch (hereinafter
referred to as “Party
A”
or
“Pledgor”)
and
HSBC
Bank
USA, National Association, not individually, but solely as trustee (the
“Supplemental Interest Trust Trustee”) on behalf of the supplemental interest
trust with respect to the MortgageIT Securities Corp. Mortgage Loan Trust,
Series 2007-2, Mortgage Pass-Through Certificates (the “Supplemental Interest
Trust”)
(hereinafter
referred to as “Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may be
contained in the Agreement, this Credit Support Annex shall relate solely to
the
Transaction documented in the Confirmation dated August 30, 2007, between Party
A and Party B, Reference Number N681806N.
Paragraph
13. Elections and Variables.
|
(a)
|
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
|
(b)
|
Credit
Support Obligations.
|
|
(i)
|
Delivery
Amount, Return Amount and Credit Support
Amount.
|
|
(A)
|
“Delivery
Amount”
has the meaning specified in Paragraph 3(a), except that:
|
|
(I)
|
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” shall be deleted and replaced with the words “not later
than the close of business on each Valuation
Date”,
|
|
(II)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Value as of that Valuation Date of all Posted Credit Support
held by the Secured Party.” shall
be deleted in its entirety and replaced with the
following:
|
“The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest of
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured
Party,
|
|
(2)
|
the
amount by which (a) the Moody’s Credit Support Amount for such Valuation
Date exceeds (b) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured
Party,
|
|
(3)
|
the
amount by which (a) the DBRS Credit Support Amount for such Valuation
Date
exceeds (b) the DBRS Value, as of such Valuation Date, of all Posted
Credit Support held by the Secured Party”,
and
|
|
(III)
|
if,
on any Valuation Date, the Delivery Amount equals or exceeds the
Pledgor’s
Minimum Transfer Amount, the Pledgor will Transfer to the Secured
Party
sufficient Eligible Credit Support to ensure that, immediately following
such transfer, the Delivery Amount shall be
zero.
|
|
(B)
|
“Return
Amount”
has the meaning specified in Paragraph 3(b), except
that:
|
|
(I)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Credit Support Amount.” shall be deleted in its entirety and
replaced with the following:
|
“The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
of
|
(1)
|
the
amount by which (a) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the S&P
Credit Support Amount for such Valuation
Date,
|
|
(2)
|
the
amount by which (a) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the Moody’s
Credit Support Amount for such Valuation
Date,
|
|
(3)
|
the
amount by which (a) the DBRS Value, as of such Valuation Date, of
all
Posted Credit Support held by the Secured Party exceeds (b) the DBRS
Credit Support Amount for such Valuation Date”,
and
|
|
(II)
|
in
no event shall the Secured Party be required to Transfer any Posted
Credit
Support under Paragraph 3(b) if, immediately following such transfer,
the
Delivery Amount would be greater than
zero.
|
|
(C)
|
“Credit
Support Amount”
shall not apply. For
purposes of calculating any Delivery Amount or Return Amount for
any
Valuation Date, reference shall be made to the S&P Credit Support
Amount, the Moody’s Credit Support Amount, or the DBRS Credit Support
Amount, in each case for such Valuation Date, as provided in Paragraphs
13(b)(i)(A) and 13(b)(i)(B), above.
|
|
(ii)
|
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
|
Collateral
|
S&P
Approved Ratings Valuation Percentage
|
S&P
Required Ratings Valuation Percentage
|
Moody's
First Trigger Valuation Percentage
|
Moody's
Second Trigger Valuation Percentage
|
DBRS
Valuation Percentage
|
|||||||||||
|
(A)
Cash
|
100
|
%
|
80
|
%
|
100
|
%
|
100
|
%
|
100
|
%
|
||||||
|
(B) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
|
98.0
|
%
|
78.4
|
%
|
100
|
%
|
100
|
%
|
97.5
|
%
|
||||||
|
(C) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not more
than
ten years
|
92.6
|
%
|
74.1
|
%
|
100
|
%
|
94
|
%
|
86.3
|
%
|
||||||
|
(D) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
|
84.6
|
%
|
67.7
|
%
|
100
|
%
|
87
|
%
|
79
|
%
|
||||||
|
(iii)
|
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
|
(iv)
|
Threshold.
|
|
(A)
|
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
|
(B)
|
“▇▇▇▇▇’▇
Threshold”
means, with respect to Party A and any Valuation Date, if a ▇▇▇▇▇’▇ First
Trigger Downgrade Event has occurred and is continuing and such ▇▇▇▇▇’▇
First Trigger Downgrade Event has been continuing (i) for at least
30
Local Business Days or (ii) since this Annex was executed, zero;
otherwise, infinity.
|
“S&P
Threshold” means,
with respect to Party A and any Valuation Date, if an S&P Approved Ratings
Downgrade Event has occurred and is continuing and such S&P Approved Ratings
Downgrade Event has been continuing (i) for at least 10 Local Business Days
or
(ii) since this Annex was executed, zero; otherwise, infinity.
“DBRS
Threshold” means,
with respect to Party A and any Valuation Date, if a DBRS Approved Ratings
Downgrade Event has occurred and is continuing and such DBRS Approved Ratings
Downgrade Event has been continuing (i) for at least 30 calendar days or (ii)
since this Annex was executed, zero; otherwise, infinity.
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
|
(C)
|
“Minimum
Transfer Amount” means
USD 100,000 with respect to Party A and Party B; provided, however,
that
if the aggregate Certificate Principal Balance of any Certificates
and the
aggregate principal balance of any Notes rated by S&P is at the time
of any transfer less than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
|
|
(D)
|
Rounding:
The Delivery Amount will be rounded up to the nearest integral multiple
of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 10,000.
|
|
(c)
|
Valuation
and Timing.
|
|
(i)
|
“Valuation
Agent”
means Party A; provided, however, that if an Event of Default shall
have
occurred with respect to which Party A is the Defaulting Party, Party
B
shall have the right to designate as Valuation Agent an independent
party,
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A. All calculations by the Valuation Agent must be made in
accordance with standard market practice, including, in the event
of a
dispute as to the Value of any Eligible Credit Support or Posted
Credit
Support, by making reference to quotations received by the Valuation
Agent
from one or more Pricing Sources.
|
|
(ii)
|
“Valuation
Date” means
the first Local Business Day in each week on which any of the S&P
Threshold, the ▇▇▇▇▇’▇ Threshold, or the DBRS Threshold is
zero.
|
|
(iii)
|
“Valuation
Time” means
the close of business in the city of the Valuation Agent on the Local
Business Day immediately preceding the Valuation Date or date of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date. The Valuation Agent
will
notify each party (or the other party, if the Valuation Agent is
a party)
of its calculations not later than the Notification Time on the applicable
Valuation Date (or in the case of Paragraph 6(d), the Local Business
Day
following the day on which such relevant calculations are
performed).”
|
|
(iv)
|
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
|
(d)
|
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party if the
Termination Event occurs with respect to that party): With respect
to
Party A: any Additional Termination Event with respect to which Party
A is
the sole Affected Party. With respect to Party B:
None.
|
|
(e)
|
Substitution.
|
|
(i)
|
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
|
(ii)
|
Consent.
If
specified here as applicable, then the Pledgor must obtain the Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
|
(f)
|
Dispute
Resolution.
|
|
(i)
|
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
|
|
(ii)
|
Value.
Notwithstanding anything to the contrary in Paragraph 12, for the
purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, ▇▇▇▇▇’▇ Value, and
DBRS Value on any date, of Eligible Collateral will be calculated
as
follows:
|
For
Eligible Collateral other than Cash listed in Paragraph 13(b)(ii): the sum
of
(A) the product of (1)(x) the bid price at the Valuation Time for such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the bid price for such securities quoted at the Valuation
Time by any principal market maker for such securities selected by the Valuation
Agent, or (z) if no such bid price is listed or quoted for such date, the bid
price listed or quoted (as the case may be) at the Valuation Time for the day
next preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and (B) the
accrued interest on such securities (except to the extent Transferred to the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable price
referred to in the immediately preceding clause (A)) as of such
date.
For
Cash,
the amount thereof multiplied, in the case of the S&P Value, by the
applicable S&P Valuation Percentage.
|
(iii)
|
Alternative.
The provisions of Paragraph 5 will
apply.
|
|
(g)
|
Holding
and Using Posted
Collateral.
|
|
(i)
|
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or any Custodian) will be entitled to hold Posted Collateral pursuant
to Paragraph 6(b).
|
Party
B
may appoint as Custodian (A) the entity then serving as the Securities
Administrator or (B) any entity other than the entity then serving as the
Securities Administrator if such other entity (or, to the extent applicable,
its
parent company or credit support provider) shall then have credit ratings from
S&P at least equal to the Custodian Required Rating Threshold. If at any
time the Custodian does not have credit ratings from S&P at least equal to
the Custodian Required Rating Threshold, the Securities Administrator must
within 60 days obtain a replacement Custodian with credit ratings from S&P
at least equal to the Custodian Required Rating Threshold.
Initially,
the Custodian
for
Party B is: Securities Administrator.
|
(ii)
|
Use
of Posted Collateral.
The provisions of Paragraph 6(c) will not apply to Party B or its
Custodian; provided, however, that if Party A delivers Posted Collateral
in book-entry form, then Paragraph 6(c)(ii) will apply to Party B
and its
Custodian, and Party B and its Custodian shall have the rights specified
in Paragraph 6(c)(ii).
|
|
(h)
|
Distributions
and Interest Amount.
|
|
(i)
|
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral in the
form
of Cash that is held by Party B or its Custodian. Posted Collateral
in the
form of Cash shall be invested in such overnight (or redeemable within
two
Local Business Days of demand) Permitted Investments rated at least
(x)
AAAm or AAAm-G by S&P and (y) Prime-1 by ▇▇▇▇▇’▇ or Aaa by ▇▇▇▇▇’▇, as
directed by Party A (unless (x) an Event of Default or an Additional
Termination Event has occurred with respect to which Party A is the
defaulting or sole Affected Party or (y) an Early Termination Date
has
been designated, in which case such Posted Collateral shall be held
uninvested). Gains and losses incurred in respect of any investment
of
Posted Collateral in the form of Cash in Permitted Investments as
directed
by Party A shall be for the account of Party
A.
|
|
(ii)
|
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second Local
Business Day following the end of each calendar month and on any
other
Local Business Day on which Posted Collateral in the form of Cash
is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount to
Party A
shall be limited to the extent that Party B has earned and received
such
funds and such funds are available to Party B. The last sentence
of
Paragraph 6(d)(ii) is hereby amended by adding the words “actually
received by Party B but” after the words “Interest Amount or portion
thereof”.
|
|
(iii)
|
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) (as amended herein) will
apply.
|
|
(iv)
|
Distributions.
Paragraph 6(d)(i) shall be deleted in its entirety and replaced with
the
following:
|
“Distributions.
Subject to Paragraph 4(a), if Party B receives Distributions on a Local Business
Day, it will Transfer to Party A not later than the following Local Business
Day
any Distributions it receives to the extent that a Delivery Amount would not
be
created or increased by that Transfer, as calculated by the Valuation Agent
(and
the date of calculation will be deemed to be a Valuation Date for this
purpose).”
|
(i)
|
Additional
Representation(s).
There are no additional representations by either
party.
|
|
(j)
|
Other
Eligible Support and Other Posted Support.
|
|
(i)
|
“Value”
with respect to Other Eligible Support and Other Posted Support means:
not
applicable.
|
|
(ii)
|
“Transfer”
with respect to Other Eligible Support and Other Posted Support means:
not
applicable.
|
|
(k)
|
Demands
and Notices.All
demands, specifications and notices under this Annex will be made
pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may from
time to
time designate by giving notice (in accordance with the terms of
this
paragraph) to the other party:
|
If
to
Party A: at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B: at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: at the address specified pursuant to the Notices Section of
this Agreement.
|
(l)
|
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified below
or to
an address specified in writing from time to time by the party to
which
such Transfer will be made.
|
Party
A
account details for holding collateral
The
Bank
of New York
ABA
#
▇▇▇▇▇▇▇▇▇
Account
#
8900603658
for
further credit: MortgageIT MHL ▇▇▇▇-▇, ▇▇▇▇ Collateral Account #
▇▇▇▇▇▇▇▇
Account
Number: ▇▇▇▇▇▇▇▇▇▇
Account
Name: Corporate Trust Clearing
Party
B
account details for holding collateral
▇▇▇▇▇
Fargo Bank, N.A.
ABA
#
▇▇▇▇▇▇▇▇▇
Account
Name: Corporate Trust Clearing
Account
#
▇▇▇▇▇▇▇▇▇▇
FFC
to:
MortgageIT MHL 2007-2, Swap Collateral Account # ▇▇▇▇▇▇▇▇
|
(m)
|
Other
Provisions.
|
|
(i)
|
Collateral
Account.
Party B shall open and maintain a segregated account, and hold, record
and
identify all Posted Collateral in such segregated
account.
|
|
(ii)
|
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything to
the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in Paragraph
2,
the acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9.
|
|
(iii)
|
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, ▇▇▇▇▇’▇ Value, DBRS Value”.
Paragraph 4(d)(ii) is hereby amended by (A) deleting the words “a Value”
and inserting in lieu thereof “an S&P Value, a ▇▇▇▇▇’▇ Value, and a
DBRS Value” and (B) deleting the words “the Value” and inserting in lieu
thereof “S&P Value, ▇▇▇▇▇’▇ Value, and DBRS Value”. Paragraph 5 (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, ▇▇▇▇▇’▇ Value, or DBRS Value”. Paragraph 5(i)
(flush language) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, ▇▇▇▇▇’▇ Value, and DBRS Value”.
Paragraph 5(i)(C) is hereby amended by deleting the word “the Value, if”
and inserting in lieu thereof “any one or more of the S&P Value,
▇▇▇▇▇’▇ Value, or DBRS Value, as may be”. Paragraph 5(ii) is hereby
amended by (1) deleting the first instance of the words “the Value” and
inserting in lieu thereof “any one or more of the S&P Value, ▇▇▇▇▇’▇
Value, or DBRS Value” and (2) deleting the second instance of the words
“the Value” and inserting in lieu thereof “such disputed S&P Value,
▇▇▇▇▇’▇ Value, or DBRS Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph
11(a) is hereby amended by deleting the word “Value” and inserting in lieu
thereof “least of the S&P Value, ▇▇▇▇▇’▇ Value, and DBRS Value”.
|
|
(iv)
|
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form of ISDA
Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New York
Law
Only version) as published and copyrighted in 1994 by the International
Swaps and Derivatives Association,
Inc.
|
|
(v)
|
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default to exist
with
respect to Party B except that Paragraph 7(i) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in Paragraph
7,
any failure by Party A to comply with or perform any obligation to
be
complied with or performed by Party A under the Credit Support Annex
shall
only be an Event of Default if (A) a ▇▇▇▇▇’▇ Second Trigger Downgrade
Event has occurred and is continuing and at least 30 Local Business
Days
have elapsed since such ▇▇▇▇▇’▇ Second Trigger Downgrade Event first
occurred or (B) a DBRS Required Ratings Downgrade Event has occurred
and
is continuing and at least 30 calendar days have elapsed since such
DBRS
Required Ratings Downgrade Event first
occurred.
|
|
(vi)
|
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the Pledgor
will
be responsible for, and will reimburse the Secured Party for, all
transfer
and other taxes and other costs involved in maintenance and any Transfer
of Eligible Collateral.
|
|
(vii)
|
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately after
“the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
| (viii) |
Additional
Definitions.
As used in this Annex:
|
“Custodian
Required Rating Threshold”
means,
with respect to an entity, a short-term unsecured and unsubordinated debt rating
from S&P of “A-1,” or, if such entity does not have a short-term unsecured
and unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating from S&P of
“A+”.
“DBRS
Approved Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings from DBRS at least equal to the
DBRS
Approved Ratings Threshold.
“DBRS
Credit Support Amount”
means,
for any Valuation Date:
|
(I)
|
(A)
|
for
any Valuation Date on which (i) a DBRS Approved Ratings Downgrade
Event
has occurred and is continuing and at least 30 calendar days have
elapsed
since such DBRS Approved Ratings Downgrade Event first occurred or
(ii) a
DBRS Required Ratings Downgrade Event has occurred and is continuing,
an
amount equal to the sum of (1) 100.0% of the Secured Party’s Exposure for
such Valuation Date and (2) the sum, for each Transaction to which
this
Annex relates, of the product of (i) the related DBRS Volatility
Cushion
for such Transaction, (ii) the Scale Factor, if any, for such Transaction
or, if no Scale Factor is applicable for such Transaction, one, and
(iii)
the Notional Amount of such Transaction for the Calculation Period
of such
Transaction (each as defined in the related Confirmation) which includes
such Valuation Date, or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
| (II) |
the
Threshold for Party A for such Valuation
Date.
|
“DBRS
Valuation Percentage”
means,
for any Valuation Date and each item of Eligible Collateral, the corresponding
percentage for such Eligible Collateral in the column headed “DBRS Valuation
Percentage”.
“DBRS
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash, the
product of (x) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (y) the DBRS Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“DBRS
Volatility Cushion” means,
for any Transaction, the related percentage set forth in the following table
for
DBRS.
|
The
higher of the DBRS credit rating of (i) Party A and (ii) the Credit
Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity of such Transaction
up
to 3 years
|
Remaining
Weighted Average Maturity of such Transaction
up
to 5 years
|
Remaining
Weighted Average Maturity of such Transaction
Up
to 10 years
|
Remaining
Weighted Average Maturity of such Transaction
up
to 30 years
|
|||||||||
|
“A-2”
or higher
|
2.75
|
%
|
3.25
|
%
|
4.00
|
%
|
4.75
|
%
|
|||||
|
“A-3”
|
3.25
|
%
|
4.00
|
%
|
5.00
|
%
|
6.25
|
%
|
|||||
|
“BB+”
or
lower
|
3.50
|
%
|
4.50
|
%
|
6.75
|
%
|
7.50
|
%
|
|||||
“Exposure”
has the
meaning specified in Paragraph 12, except that (1) after the word “Agreement”
the words “(assuming, for this purpose only, that Part 1(f)(i)(A)-(E) of the
Schedule is deleted)” shall be inserted and (2) at the end of the definition of
Exposure, the words “with terms that are, in all material respects, no less
beneficial for Party B than those of this Agreement” shall be added.
“Local
Business Day”
means,
for purposes of this Annex: any day on which (A) commercial banks are open
for
business (including dealings in foreign exchange and foreign currency deposits)
in New York and the location of Party A, Party B and any Custodian, and (B)
in
relation to a Transfer of Eligible Collateral, any day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral is
open for acceptance and execution of settlement instructions (or in the case
of
a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign deposits) in New
York and the location of Party A, Party B and any Custodian.
“▇▇▇▇▇’▇
Credit Support Amount”
means,
for any Valuation Date:
| (A) |
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is zero and (i) it is not
the case that a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and is
continuing or (ii) a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and is continuing and less than 30 Local Business Days have elapsed
since
such ▇▇▇▇▇’▇ Second Trigger Downgrade Event first occurred, an amount
equal to the greater of (x) zero and (y) the sum of the Secured Party’s
Exposure and the aggregate of ▇▇▇▇▇’▇ First Trigger Additional Amounts for
all Transactions and such Valuation Date;
|
|
(B)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is zero and a ▇▇▇▇▇’▇ Second
Trigger Downgrade Event has occurred and is continuing and at least
30
Local Business Days have elapsed since such ▇▇▇▇▇’▇ Second Trigger
Downgrade Event first occurred, an amount equal to the greatest of
(x)
zero, (y) the aggregate amount of the Next Payments for all Next
Payment
Dates, and (z) the sum of the Secured Party’s Exposure and the aggregate
of ▇▇▇▇▇’▇ Second Trigger Additional Amounts for all Transactions and such
Valuation Date; or
|
| (C) |
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is infinity,
zero.
|
“▇▇▇▇▇’▇
First Trigger Additional Amount” means,
for any Valuation Date and any Transaction, the product of (i) the applicable
▇▇▇▇▇’▇ First Trigger Factor set forth in Table 1, (ii) the Scale Factor, if
any, for such Transaction, or, if no Scale Factor is applicable for such
Transaction, one, and (iii) the Notional Amount for such Transaction for the
Calculation Period for such Transaction (each as defined in the related
Confirmation) which includes such Valuation Date.
“▇▇▇▇▇’▇
First Trigger Downgrade Event”
means
that no Relevant Entity has credit ratings from ▇▇▇▇▇’▇ at least equal to the
▇▇▇▇▇’▇ First Trigger Ratings Threshold.
“▇▇▇▇▇’▇
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash, the
bid
price obtained by the Valuation Agent multiplied by the ▇▇▇▇▇’▇ First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“▇▇▇▇▇’▇
Second Trigger Additional Amount”
means,
for any Valuation Date and any Transaction,
|
(A)
|
if
such Transaction is not a Transaction-Specific Hedge, the product
of (i)
the applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 2, (ii)
the Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
or
|
|
(B)
|
if
such Transaction is a Transaction-Specific Hedge, the product of
(i) the
applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 3, (ii) the
Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date.
|
“▇▇▇▇▇’▇
Valuation Percentage”
means,
with respect to a Valuation Date and each item of Eligible Collateral,
|
(A)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is zero and (i) it is not
the case that a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and is
continuing or (ii) a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and is continuing and less than 30 Local Business Days have elapsed
since
such ▇▇▇▇▇’▇ Second Trigger Downgrade Event first occurred, the
corresponding percentage for such Eligible Collateral in the column
headed
“▇▇▇▇▇’▇ First Trigger Valuation Percentage”, or
|
|
(B)
|
if
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and is continuing
and at least 30 Local Business Days have elapsed since such ▇▇▇▇▇’▇ Second
Trigger Downgrade Event first occurred, the corresponding percentage
for
such Eligible Collateral in the column headed “▇▇▇▇▇’▇ Second Trigger
Valuation Percentage”.
|
“▇▇▇▇▇’▇
Value” means,
on
any date and with respect to any Eligible Collateral the product of (x) the
bid
price obtained by the Valuation Agent and (y) the applicable ▇▇▇▇▇’▇ Valuation
Percentage set forth in Paragraph 13(b)(ii).
“Next
Payment”
means,
in respect of each Next Payment Date, the greater of (i) the aggregate amount
of
any payments due to be made by Party A under Section 2(a) on such Next Payment
Date less the aggregate amount of any payments due to be made by Party B under
Section 2(a) on such Next Payment Date (any such payments determined based
on
rates prevailing the date of determination) and (ii) zero.
“Next
Payment Date”
means
each date on which the next scheduled payment under any Transaction is due
to be
paid.
“Pricing
Sources”
means
the sources of financial information commonly known as Bloomberg, Bridge
Information Services, Data Resources Inc., Interactive Data Services,
International Securities Market Association, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Pricing
Service, ▇▇▇▇▇▇ Data Corporation, Reuters, Wood Gundy, Trepp Pricing, ▇▇ ▇▇▇▇▇,
S&P and Telerate.
“Remaining
Weighted Average Maturity” means,
with respect to a Transaction, the expected weighted average maturity for such
Transaction as determined by the Valuation Agent.
“S&P
Approved Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings from S&P at least equal to the
S&P Approved Ratings Threshold.
“S&P
Credit Support Amount”
means,
for any Valuation Date:
|
(A)
|
if
the S&P Threshold for such Valuation Date is zero and it is not the
case that an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, an amount equal
to
the Secured Party’s Exposure;
|
|
(B)
|
if
the S&P Threshold for such Valuation Date is zero and it is the case
that an S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, an amount equal to
125% of
the Secured Party’s Exposure; or
|
| (C) |
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“S&P
Valuation Percentage”
means,
with respect to a Valuation Date and each item of Eligible Collateral,
|
(A)
|
if
the S&P Threshold for such Valuation Date is zero and it is not the
case that a S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed “S&P
Approved Ratings Valuation Percentage” or
|
|
(B)
|
if
an S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed “S&P
Required Ratings Valuation
Percentage”.
|
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral, (A) in the case of
Eligible Collateral other than Cash, the product of (x) the bid price obtained
by the Valuation Agent for such Eligible Collateral and (y) the applicable
S&P Valuation Percentage for such Eligible Collateral set forth in paragraph
13(b)(ii) and (B) in the case of Cash, the amount thereof multiplied by the
applicable S&P Valuation Percentage.
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were the only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge” means
any
Transaction that is (i) an interest rate swap in respect of which (x) the
notional amount of the interest rate swap is “balance guaranteed” or (y) the
notional amount of the interest rate swap for any Calculation Period (as defined
in the related Confirmation) otherwise is not a specific dollar amount that
is
fixed at the inception of the Transaction, (ii) an interest rate cap, (iii)
an
interest rate floor or (iv) an interest rate swaption.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, ▇▇▇▇▇’▇ Value, or DBRS
Value with respect to any Eligible Collateral or Posted Collateral, the
applicable S&P Valuation Percentage, ▇▇▇▇▇’▇ Valuation Percentage, or DBRS
Valuation Percentage for such Eligible Collateral or Posted Collateral,
respectively, in each case as set forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related ▇▇▇▇▇’▇
Value, and the related DBRS Value.
[Remainder
of this page intentionally left blank]
Table
1
▇▇▇▇▇’▇
First Trigger Factor
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
Weekly
Collateral
Posting
|
|||
|
1
or less
|
0.25
|
%
|
||
|
More
than 1 but not more than 2
|
0.50
|
%
|
||
|
More
than 2 but not more than 3
|
0.70
|
%
|
||
|
More
than 3 but not more than 4
|
1.00
|
%
|
||
|
More
than 4 but not more than 5
|
1.20
|
%
|
||
|
More
than 5 but not more than 6
|
1.40
|
%
|
||
|
More
than 6 but not more than 7
|
1.60
|
%
|
||
|
More
than 7 but not more than 8
|
1.80
|
%
|
||
|
More
than 8 but not more than 9
|
2.00
|
%
|
||
|
More
than 9 but not more than 10
|
2.20
|
%
|
||
|
More
than 10 but not more than 11
|
2.30
|
%
|
||
|
More
than 11 but not more than 12
|
2.50
|
%
|
||
|
More
than 12 but not more than 13
|
2.70
|
%
|
||
|
More
than 13 but not more than 14
|
2.80
|
%
|
||
|
More
than 14 but not more than 15
|
3.00
|
%
|
||
|
More
than 15 but not more than 16
|
3.20
|
%
|
||
|
More
than 16 but not more than 17
|
3.30
|
%
|
||
|
More
than 17 but not more than 18
|
3.50
|
%
|
||
|
More
than 18 but not more than 19
|
3.60
|
%
|
||
|
More
than 19 but not more than 20
|
3.70
|
%
|
||
|
More
than 20 but not more than 21
|
3.90
|
%
|
||
|
More
than 21 but not more than 22
|
4.00
|
%
|
||
|
More
than 22 but not more than 23
|
4.00
|
%
|
||
|
More
than 23 but not more than 24
|
4.00
|
%
|
||
|
More
than 24 but not more than 25
|
4.00
|
%
|
||
|
More
than 25 but not more than 26
|
4.00
|
%
|
||
|
More
than 26 but not more than 27
|
4.00
|
%
|
||
|
More
than 27 but not more than 28
|
4.00
|
%
|
||
|
More
than 28 but not more than 29
|
4.00
|
%
|
||
|
More
than 29
|
4.00
|
%
|
||
Table
2
▇▇▇▇▇’▇
Second Trigger Factor for Interest Rate Swaps with Fixed Notional
Amounts
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
Weekly
Collateral
Posting
|
|||
|
1
or less
|
0.60
|
%
|
||
|
More
than 1 but not more than 2
|
1.20
|
%
|
||
|
More
than 2 but not more than 3
|
1.70
|
%
|
||
|
More
than 3 but not more than 4
|
2.30
|
%
|
||
|
More
than 4 but not more than 5
|
2.80
|
%
|
||
|
More
than 5 but not more than 6
|
3.30
|
%
|
||
|
More
than 6 but not more than 7
|
3.80
|
%
|
||
|
More
than 7 but not more than 8
|
4.30
|
%
|
||
|
More
than 8 but not more than 9
|
4.80
|
%
|
||
|
More
than 9 but not more than 10
|
5.30
|
%
|
||
|
More
than 10 but not more than 11
|
5.60
|
%
|
||
|
More
than 11 but not more than 12
|
6.00
|
%
|
||
|
More
than 12 but not more than 13
|
6.40
|
%
|
||
|
More
than 13 but not more than 14
|
6.80
|
%
|
||
|
More
than 14 but not more than 15
|
7.20
|
%
|
||
|
More
than 15 but not more than 16
|
7.60
|
%
|
||
|
More
than 16 but not more than 17
|
7.90
|
%
|
||
|
More
than 17 but not more than 18
|
8.30
|
%
|
||
|
More
than 18 but not more than 19
|
8.60
|
%
|
||
|
More
than 19 but not more than 20
|
9.00
|
%
|
||
|
More
than 20 but not more than 21
|
9.00
|
%
|
||
|
More
than 21 but not more than 22
|
9.00
|
%
|
||
|
More
than 22 but not more than 23
|
9.00
|
%
|
||
|
More
than 23 but not more than 24
|
9.00
|
%
|
||
|
More
than 24 but not more than 25
|
9.00
|
%
|
||
|
More
than 25 but not more than 26
|
9.00
|
%
|
||
|
More
than 26 but not more than 27
|
9.00
|
%
|
||
|
More
than 27 but not more than 28
|
9.00
|
%
|
||
|
More
than 28 but not more than 29
|
9.00
|
%
|
||
|
More
than 29
|
9.00
|
%
|
||
Table
3
▇▇▇▇▇’▇
Second Trigger Factor for Transaction-Specific ▇▇▇▇▇▇
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
Weekly
Collateral
Posting
|
|||
|
1
or less
|
0.75
|
%
|
||
|
More
than 1 but not more than 2
|
1.50
|
%
|
||
|
More
than 2 but not more than 3
|
2.20
|
%
|
||
|
More
than 3 but not more than 4
|
2.90
|
%
|
||
|
More
than 4 but not more than 5
|
3.60
|
%
|
||
|
More
than 5 but not more than 6
|
4.20
|
%
|
||
|
More
than 6 but not more than 7
|
4.80
|
%
|
||
|
More
than 7 but not more than 8
|
5.40
|
%
|
||
|
More
than 8 but not more than 9
|
6.00
|
%
|
||
|
More
than 9 but not more than 10
|
6.60
|
%
|
||
|
More
than 10 but not more than 11
|
7.00
|
%
|
||
|
More
than 11 but not more than 12
|
7.50
|
%
|
||
|
More
than 12 but not more than 13
|
8.00
|
%
|
||
|
More
than 13 but not more than 14
|
8.50
|
%
|
||
|
More
than 14 but not more than 15
|
9.00
|
%
|
||
|
More
than 15 but not more than 16
|
9.50
|
%
|
||
|
More
than 16 but not more than 17
|
9.90
|
%
|
||
|
More
than 17 but not more than 18
|
10.40
|
%
|
||
|
More
than 18 but not more than 19
|
10.80
|
%
|
||
|
More
than 19 but not more than 20
|
11.00
|
%
|
||
|
More
than 20 but not more than 21
|
11.00
|
%
|
||
|
More
than 21 but not more than 22
|
11.00
|
%
|
||
|
More
than 22 but not more than 23
|
11.00
|
%
|
||
|
More
than 23 but not more than 24
|
11.00
|
%
|
||
|
More
than 24 but not more than 25
|
11.00
|
%
|
||
|
More
than 25 but not more than 26
|
11.00
|
%
|
||
|
More
than 26 but not more than 27
|
11.00
|
%
|
||
|
More
than 27 but not more than 28
|
11.00
|
%
|
||
|
More
than 28 but not more than 29
|
11.00
|
%
|
||
|
More
than 29
|
11.00
|
%
|
||
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
|
DEUTSCHE
BANK AG, NEW YORK BRANCH
|
HSBC
BANK USA, NATIONAL ASSOCIATION, NOT INDIVIDUALLY, BUT SOLELY AS THE
SUPPLEMENTAL INTEREST TRUST TRUSTEE ON BEHALF OF THE SUPPLEMENTAL
INTEREST
TRUST WITH RESPECT TO THE MORTGAGEIT SECURITIES CORP. MORTGAGE LOAN
TRUST,
SERIES 2007-2, MORTGAGE PASS-THROUGH CERTIFICATES
|
|||
|
|
||||
| By: | By: |
/s/
▇▇▇▇▇ ▇▇▇▇▇
|
||
|
|
|
|||
|
Name
Title: Date:
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Assistant Vice President
Date:
|
|||
EXHIBIT
J
ASSIGNMENT
AGREEMENT AND SERVICING AGREEMENT
J-1
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
This
Assignment, Assumption and Recognition Agreement (this “AAR Agreement”) is made
and entered into as of August 30, 2007 (the “Closing Date”), among DB Structured
Products, Inc., having an address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the “Assignor”), MortgageIT Securities Inc., having an address at ▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the “Assignee”) and GMAC Mortgage, LLC, having
an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
“Company” or the “Servicer”) and acknowledged and agreed to by ▇▇▇▇▇ Fargo Bank,
N.A., as master servicer (the “Master Servicer”).
In
consideration of the mutual promises contained herein, the parties hereto agree
that the residential mortgage loans listed on Attachment
1
annexed
hereto (the “Assigned Loans”) which are now or in the future serviced by the
Company for the Assignor and its successors and assigns pursuant to the Amended
and Restated Servicing Agreement, dated as of January 2, 2007 (the “Servicing
Agreement”), between the Assignor and the Company, shall
be sold
by the Assignor to the Assignee pursuant to the Mortgage Loan Purchase
Agreement, dated as of August 30, 2007 (the “MLPA”), between the Assignor and
the Assignee and subject to the terms of this AAR Agreement. The Assignee
intends to transfer all right, title and interest in and to the Assigned Loans
and delegate all duties of the Assignee hereunder with respect to the Assigned
Loans to HSBC Bank USA, National Association, as trustee (the “Trustee”) for the
holders of MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2
Mortgage Pass-Through Certificates (the “Certificateholders”) pursuant to the
Pooling and Servicing Agreement, dated as of August 1, 2007 (the “Pooling and
Servicing Agreement”) among the Assignee, as depositor, ▇▇▇▇▇ Fargo Bank,
National Association, as a servicer, the Master Servicer, the securities
administrator and the Trustee. Capitalized terms used herein but not defined
shall have the meanings ascribed to them in the Servicing
Agreement.
Assignment
and Assumption
1. Assignor
hereby grants, transfers and assigns to Assignee all of the right, title and
interest of Assignor in, to and under the Servicing Agreement as it relates
to
the Assigned Loans. Assignor specifically reserves and does not assign to
Assignee any right, title and interest in, to or under any mortgage loans
subject to the Servicing Agreement other than the Assigned Loans set forth
on
Attachment
1,
the
right
to transfer the servicing for any Charged-Off Loans pursuant to Section 2.15
of
the Servicing Agreement, the right to receive indemnification from the Company
pursuant to Section 8.01(a) of the Servicing Agreement or the obligation to
indemnify the Company pursuant to Section 8.01(b) of the Servicing
Agreement.
Representations,
Warranties and Covenants
2. Assignor
warrants and represents to Assignee and Company as of the Closing
Date:
|
(a)
|
Attached
hereto as Attachment
2
is
a true and accurate copy of the Servicing Agreement, which Servicing
Agreement is in full force and effect as of the date hereof and the
provisions of which have not been waived, amended or modified in
any
respect, nor has any notice of termination been given
thereunder;
|
|
(b)
|
Assignor
is the lawful owner of the Assigned Loans with full right to transfer
the
Assigned Loans and any and all of its interests, rights and obligations
under the Servicing Agreement as they relate to the Assigned Loans,
free
and clear from any and all claims and encumbrances; and upon the
transfer
of the Assigned Loans to Assignee under the MLPA, Assignee shall
have good
title to each and every Assigned Loan, as well as any and all of
Assignor’s interests, rights and obligations under the Servicing Agreement
as they relate to the Assigned Loans free and clear of any and all
liens,
claims and encumbrances, except the right to transfer the servicing
for
any Charged-Off Loans pursuant to Section 2.15 of the Servicing Agreement,
the right to receive indemnification from the Company pursuant to
Section
8.01(a) of the Servicing Agreement or the obligation to indemnify
the
Company pursuant to Section 8.01(b) of the Servicing
Agreement;
|
|
(c)
|
Assignor
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its incorporation, and has all requisite power
and
authority to acquire, own and sell the Assigned
Loans;
|
|
(d)
|
Assignor
has full corporate power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignor’s business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignor’s certificate of incorporation or
by-laws or any legal restriction, or any material agreement or instrument
to which Assignor is now a party or by which it is bound, or result
in the
violation of any law, rule, regulation, order, judgment or decree
to which
Assignor or its property is subject. The execution, delivery and
performance by Assignor of this AAR Agreement and the consummation
by it
of the transactions contemplated hereby, have been duly authorized
by all
necessary corporate action on the part of Assignor. This AAR Agreement
has
been duly executed and delivered by Assignor and, upon the due
authorization, execution and delivery by Assignee and Company, will
constitute the valid and legally binding obligation of Assignor
enforceable against Assignor in accordance with its terms except
as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating
to
creditors’ rights generally, and by general principles of equity
regardless of whether enforceability is considered in a proceeding
in
equity or at law; and
|
|
(e)
|
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Assignor in connection with the execution, delivery or performance
by Assignor of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby.
|
2
3. Assignee
warrants and represents to, and covenants with, Assignor and Company as of
the
Closing Date:
|
(a)
|
Assignee
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its incorporation and has all requisite power
and
authority to acquire, own and purchase the Assigned
Loans;
|
|
(b)
|
Assignee
has full corporate power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignee’s business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignee’s articles of incorporation or
by-laws or any legal restriction, or any material agreement or instrument
to which Assignee is now a party or by which it is bound, or result
in the
violation of any law, rule, regulation, order, judgment or decree
to which
Assignee or its property is subject. The execution, delivery and
performance by Assignee of this AAR Agreement and the consummation
by it
of the transactions contemplated hereby, have been duly authorized
by all
necessary corporate action on the part of Assignee. This AAR Agreement
has
been duly executed and delivered by Assignee and, upon the due
authorization, execution and delivery by Assignor and Company, will
constitute the valid and legally binding obligation of Assignee
enforceable against Assignee in accordance with its terms except
as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating
to
creditors’ rights generally, and by general principles of equity
regardless of whether enforceability is considered in a proceeding
in
equity or at law;
|
|
(c)
|
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Assignee in connection with the execution, delivery or performance
by Assignee of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby;
and
|
|
(d)
|
Assignee
agrees to be bound by all of the terms, covenants and conditions
of the
Servicing Agreement with respect to the Assigned Loans, and from
and after
the Closing Date with respect to the Assigned Loans, Assignee assumes
for
the benefit of each of Assignor and Company all of Assignor’s obligations
thereunder, other than the right to transfer the servicing for any
Charged-Off Loans pursuant to Section 2.15 of the Servicing Agreement,
the
right to receive indemnification from the Company pursuant to Section
8.01(a) of the Servicing Agreement or the obligation to indemnify
the
Company pursuant to Section 8.01(b) of the Servicing Agreement, but
solely
with respect to such Assigned
Loans.
|
4. Company
warrants and represents to, and covenants with, Assignor and Assignee as of
the
Closing Date:
3
|
(a)
|
Attached
hereto as Attachment
2
is
a true and accurate copy of the Servicing Agreement, which Agreement
is in
full force and effect as of the Closing Date and the provisions of
which
have not been waived, amended or modified in any respect, nor has
any
notice of termination been given
thereunder;
|
|
(b)
|
Company
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its formation, and has all requisite power and
authority to service the Assigned Loans and otherwise to perform
its
obligations under the Servicing
Agreement;
|
|
(c)
|
Company
has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Company’s business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Company’s certificate of formation or
operating agreement or any legal restriction, or any material agreement
or
instrument to which Company is now a party or by which it is bound,
or
result in the violation of any law, rule, regulation, order, judgment or
decree to which Company or its property is subject. The execution,
delivery and performance by Company of this AAR Agreement and the
consummation by it of the transactions contemplated hereby, have
been duly
authorized by all necessary action on the part of Company. This AAR
Agreement has been duly executed and delivered by Company, and, upon
the
due authorization, execution and delivery by Assignor and Assignee,
will
constitute the valid and legally binding obligation of Company,
enforceable against Company in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating
to
creditors’ rights generally, and by general principles of equity
regardless of whether enforceability is considered in a proceeding
in
equity or at law;
|
|
(d)
|
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Company in connection with the execution, delivery or performance
by Company of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby;
|
|
(e)
|
No
event has occurred as of Closing Date which would render the
representations and warranties made by Company in Article X of the
Servicing Agreement, including any representations and warranties
referenced thereunder, to be untrue in any material
respect;
|
|
(f)
|
From
and after the Closing Date with respect to the Assigned Loans, the
Company
shall service the Assigned Loans in accordance with the terms and
provisions of the Servicing Agreement, and the Company shall establish
a
Custodial Account and an Escrow Account under the Servicing Agreement
with
respect to the Assigned Loans separate from the Custodial Account
and
Escrow Account previously established under the Servicing Agreement
in
favor of Assignor, and shall remit collections received to such accounts.
The Custodial Account and Escrow Account shall be entitled “GMAC Mortgage,
LLC, as servicer in trust for MortgageIT Securities Corp. Mortgage
Loan
Trust, Series 2007-2”; and
|
4
|
(g)
|
Company
shall furnish, on a monthly basis, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
borrower credit files to Equifax, Experian and the TransUnion Credit
Information Company with respect to each Assigned Loan serviced by
the
Company subject to this AAR
Agreement.
|
5. Company
hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A. has been appointed as the Master
Servicer for the Assigned Loans pursuant to the Pooling and Servicing Agreement.
Company shall deliver any reports, certificates and other information required
to be delivered under the Servicing Agreement, as modified by this AAR
Agreement, to:
▇▇▇▇▇
Fargo Bank, National Association
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
MHL 2007-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Recognition
of Assignee
6. From
and
after the Closing Date with respect to the Assigned Loans, Company shall
recognize Assignee as owner of the Assigned Loans, and the Company acknowledges
that the Assigned Loans will be part of a REMIC, and will service the Assigned
Loans in accordance with the Servicing Agreement, as modified by this AAR
Agreement, but in no event in a manner that would (i) cause any REMIC to fail
to
qualify as a REMIC or (ii) result in the imposition of a tax upon any REMIC
(including but not limited to the tax on prohibited transactions as defined
in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth
in Section 860G(d) of the Code). It is the intention of Assignor, Company and
Assignee that this AAR Agreement shall be binding upon and for the benefit
of
the respective successors and assigns of the parties hereto. Neither Company
nor
Assignor shall amend or agree to amend, modify, waive, or otherwise alter any
of
the terms or provisions of the Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Assigned
Loans without the prior written consent of the Trustee and the Master Servicer
and, with respect to the servicing of the Assigned Loans, the Master Servicer.
Pursuant to the Pooling and Servicing Agreement, the Assignee will assign all
of
its rights and delegate all of its duties under this AAR Agreement to the
Trustee for the benefit of the Certificateholders.
In
addition, Company hereby acknowledges that the Assigned Loans will be subject
to
the terms and conditions of the Pooling and Servicing Agreement pursuant to
which the Master Servicer is required to monitor the performance by Company
of
its servicing obligations under the Servicing Agreement, as modified by this
AAR
Agreement, and has the right to enforce the obligations of Company under the
Servicing Agreement, as modified by this AAR Agreement, with respect to the
servicing of the Assigned Loans. Such right will include, without limitation,
the right to terminate Company under the Servicing Agreement as provided
therein, the right to receive all remittances required to be made by Company
under the Servicing Agreement, the right to receive all monthly reports and
other data required to be delivered by Company under the Servicing Agreement,
the right to examine the books and records of Company, indemnification rights,
and the right to exercise certain rights of consent and approval relating to
actions taken by Company. In connection therewith, the Company hereby agrees
to
make all remittances required under the Servicing Agreement with respect to
the
Assigned Loans to the Master Servicer in accordance with the following wire
transfer instructions:
▇▇▇▇▇
Fargo Bank, N.A.
ABA
#:
▇▇▇▇▇▇▇▇▇
Account
Name: SAS Clearing
Account
#: ▇▇▇▇▇▇▇▇▇▇
For
Further Credit to: 53170300
5
Modification
of the Servicing Agreement
7. Company
and Assignor hereby amend the Servicing Agreement with respect to the Assigned
Loans as follows:
(a) The
recitals to the Servicing Agreement are hereby modified by inserting the phrase
“until the related Securitization Servicing Transfer Date” immediately following
the phrase “subject to this Agreement” in the fourth “Whereas” clause
therein.
(b) The
following definitions are added to Section 1.01 of the Servicing
Agreement:
Cut-off
Date:
August
1, 2007.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property repurchased by the Servicer pursuant to this
Agreement), a determination made by the Servicer that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the Servicer, in
its
reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Servicer shall maintain records, prepared
by
a servicing officer of the Servicer, of each Final Recovery
Determination.
Minimum
Servicing Requirements:
With
respect to a successor to GMACM appointed pursuant to
Section 2.24:
(i) the
proposed successor Servicer is (1) an affiliate of the Master Servicer that
services mortgage loans similar to the Mortgage Loans in the jurisdictions
in
which the related Mortgaged Properties are located or (2) the proposed successor
Servicer has a rating of at least “Above Average” by S&P and either a rating
of at least “RPS2” by Fitch or a rating of at least “SQ2” by ▇▇▇▇▇’▇;
and
(ii) the
proposed successor Servicer has a net worth of at least
$25,000,000.
6
Monthly
Advance:
The
aggregate of the advances made by the Servicer on any Remittance Date pursuant
to Section 3.02 of the Servicing Agreement.
Nonrecoverable
Monthly Advance:
Any
Monthly Advance previously made or proposed to be made in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment of the Servicer,
will not, or, in the case of a proposed Monthly Advance, would not be,
ultimately recoverable from related late payments, Insurance Proceeds or
Liquidation Proceeds on such Mortgage Loan or REO Property as provided
herein.
Owner:
Shall
mean the Depositor or the Trustee, on behalf of the Trust, as its
designee.
Pooling
and Servicing Agreement:
The
Pooling and Servicing Agreement, dated as of August 1, 2007, among the
Depositor, ▇▇▇▇▇ Fargo Bank, National Association as a servicer, the Master
Servicer, the Securities Administrator and the Trustee.
Purchaser:
Shall
mean MortgageIT Securities Corp.
Report
Remittance Date:
Shall
have the meaning assigned thereto in Section 5.01 of this
Agreement.
Securities
Administrator:
▇▇▇▇▇
Fargo Bank, N.A., or any successor thereto.
Securitization
Servicing Transfer Date:
September 1, 2007 or such other date as servicing of the Mortgage Loans is
transferred to a successor servicer.
Servicing
Fee Rate:
A rate
of 0.25% per annum.
Servicing
Transfer Costs:
All
reasonable out-of-pocket or third party costs and expenses incurred by the
Master Servicer in connection with the transfer of servicing from Servicer,
including, without limitation, any reasonable out-of-pocket or third party
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 (or any successor to the Servicer appointed pursuant
to
Section 6.02) to correct any errors or insufficiencies in the servicing data
or
otherwise to enable the Master Servicer (or any successor to the Servicer
appointed pursuant to Section 6.02) to service the Mortgage Loans properly
and
effectively.
Trust:
MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2, the trust
created by the Pooling Agreement, dated August 1, 2007, among Assignee,
as depositor, ▇▇▇▇▇ Fargo Bank, National Association, as a servicer, the Master
Servicer, the securities administrator and the Trustee.
Trustee:
HSBC
Bank USA, National Association, or any successor thereto.
7
(c) The
definition of “Business Day” in Section 1.01 of the Servicing Agreement is
hereby amended by inserting the phrase “Texas, Maryland and Minnesota”
immediately following the word “Connecticut”.
(d) The
definition of “Depositor” in Section 1.01 of the Servicing Agreement is hereby
deleted in its entirety and replaced with the following:
Depositor:
MortgageIT Securities Corp.
(e) The
definition of “Determination Date” in Section 1.01 of the Servicing Agreement is
hereby deleted in its entirety and replaced with the following:
Determination
Date:
With
respect to each Remittance Date, the fifteenth (15th)
day of
the calendar month in which such Remittance Date occurs or, if such fifteenth
(15th)
day is
not a Business Day, the Business Day immediately following such fifteenth
(15th)
day.
(f) The
definition of “Due Period” in Section 1.01 of the Servicing Agreement is hereby
deleted in its entirety and replaced with the following:
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of the Remittance Date and ending on the first day
of
the month of the Remittance Date.
(g) The
definition of “Master Servicer” in Section 1.01 of the Servicing Agreement is
hereby deleted in its entirety and replaced with the following:
Master
Servicer:
▇▇▇▇▇
Fargo Bank, N.A., or any successor thereto.
(h) The
definition of “Principal Prepayment Period” in Section 1.01 of the Servicing
Agreement is hereby deleted in its entirety and replaced with the
following:
Principal
Prepayment Period:
With
respect to each Remittance Date, the period beginning with the 16th
day of
the calendar month preceding the month in which such Remittance Date occurs
and
ending on the 15th
day of
the calendar month in which such Remittance Date occurs.
(i) The
definition of “Remittance Date” in Section 1.01 of the Servicing Agreement is
hereby deleted in its entirety and replaced with the following:
Remittance
Date:
The
eighteenth (18th) day of each month, or if such eighteenth (18th) day is not
a
Business Day, the first Business Day immediately preceding such eighteenth
(18th) day.
(j) The
definition of “Servicing Transfer Date” in Section 1.01 of the Servicing
Agreement is hereby deleted in its entirety.
8
(k) Section
2.01 of the Servicing Agreement is modified by deleting the words “unless the
Servicer has obtained the prior written consent of the Owner,” from the fourth
paragraph thereof.
(l) Section
2.02 of the Servicing Agreement is modified by deleting the fourth paragraph
of
such section and replacing it with the following:
“The
Servicer acknowledges and agrees that it shall take and initiate any legal
actions with respect to any Mortgage Loans and REO Properties, including,
without limitation, any foreclosure actions, acceptance of deeds-in-lieu of
foreclosure, and any collection actions with respect to any Mortgage Loans
or
REO Properties on behalf of and in the name of the Trustee for the benefit
of
the related trust established pursuant to the Pooling and Servicing Agreement.
Owner agrees to reimburse Servicer for any costs or expenses associated with
assigning Mortgage Loans to Servicer or MERS as the case may be.”
(m) Section
2.04 of the Servicing Agreement is modified by deleting the word “and” after
clause (vii) and adding the following clauses:
“(ix)
with respect to each Principal Prepayment in full received during the portion
of
the Principal Prepayment Period occurring from the 16th day of the calendar
month preceding the month in which the related Remittance Date occurs through
and including the last day of the calendar month preceding the month in which
the related Remittance Date occurs, an amount (“Prepayment Interest Shortfall”)
(to be paid by the Servicer out of its own funds without reimbursement therefor)
which, when added to all amounts allocable to interest received in connection
with such Principal Prepayment in full, equals one month’s interest on the
amount of principal so prepaid at the Mortgage Loan Remittance Rate, provided,
however, that in no event shall the aggregate of deposits made by the Servicer
exceed the aggregate amount of the Servicer’s Servicing Fee in the calendar
month in which such deposits are required; and
(x)
all
Monthly Advances required to be made by the Servicer pursuant to
Section 3.02.
(n) Section
2.05 of the Servicing Agreement is modified by deleting the word “and” after
clause (viii), changing clause (ix) to clause (xiii) and adding the following
as
clauses (ix), (x), (xi) and (xii):
(ix)
to
reimburse itself for Monthly Advances, the Servicer’s right to reimburse itself
pursuant to this clause (ix) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees), Liquidation Proceeds or Insurance Proceeds with respect to such Mortgage
Loan, respecting which any such advance was made it being understood that,
in
the case of such reimbursement, the Servicer’s right thereto shall be prior to
the rights of Purchaser;
(x)
to
reimburse the Servicer for any Monthly Advance previously made which the
Servicer has determined to be a Nonrecoverable Monthly Advance;
9
(xi)
to
pay to itself, to the extent set forth in Section 4.03, with respect to each
Principal Prepayment in full received during the portion of the related
Prepayment Period occurring from the 1st day of the calendar month in which
the
related Remittance Date occurs through and including the last day of the related
Prepayment Period, an amount (“Prepayment Interest Excess”) equal to interest
(to the extent received) at the applicable Mortgage Loan Remittance Rate on
the
amount of such Principal Prepayment for the number of days commencing on the
1st
day of the calendar month in which such Remittance Date occurs and ending on
the
date on which such prepayment is so applied;
(xii)
to
reimburse itself to the extent set forth in Sections 4.08(a) and (b);
and
(o) Section
2.05 of the Servicing Agreement is modified by replacing the paragraph at the
end of such Section with the following:
“The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such clauses (ii) - (xii) above. The Servicer
shall provide written notification in the form of an Officers’ Certificate to
the Purchaser, on or prior to the next succeeding Remittance Date, upon making
any withdrawals from the Custodial Account pursuant to clause (v) and (x)
above.”
(p) The
following shall be added as Section 2.23 of the Servicing
Agreement:
“Notwithstanding
anything in this Agreement to the contrary, the Servicer (a) shall not permit
any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate and (b) shall not (unless the Mortgagor is in default
with respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) make or permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both (i) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code
(or
Treasury regulations promulgated thereunder) or (ii) cause the trust fund to
fail to qualify as a REMIC under the Code or the imposition of any tax on
“prohibited transactions” or “contributions” after the startup date under the
REMIC Provisions.
Prior
to
taking any action with respect to the Mortgage Loans which is not contemplated
under the terms of this Agreement, the Servicer will obtain an Opinion of
Counsel acceptable to the Trustee with respect to whether such action could
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, an “Adverse REMIC Event”), and the Servicer shall not
take any such action or cause the trust fund to take any such action as to
which
it has been advised that an Adverse REMIC Event could occur.
The
Servicer shall not permit the creation of any “interests” (within the meaning of
Section 860G of the Code) in the REMIC. The Servicer shall not enter into any
arrangement by which the REMIC will receive a fee or other compensation for
services nor permit the REMIC to receive any income from assets other than
“qualified mortgages” as defined in Section 860G(a)(3) of the Code or “permitted
investments” as defined in Section 860G(a)(5) of the Code.
10
Any
REO
Property shall be disposed of by the Servicer before the close of the third
taxable year following the taxable year in which the Mortgage Loan became an
REO
Property, unless the Servicer is otherwise directed by the Assignee or such
Mortgage Loan is not part of a REMIC.”
(q) The
following shall be added as Section 2.24 of the Servicing
Agreement:
“With
respect to any Mortgage Loan which becomes 90 or more days delinquent after
the
Closing Date (calculated based on the OTS method), the Sponsor may, at its
option, transfer the servicing responsibilities of the Servicer under this
Agreement with respect to such Mortgage Loan. No such servicing transfer shall
become effective unless and until a successor to such Servicer shall have been
appointed to service and administer the related Mortgage Loans pursuant to
a
special servicing agreement acceptable to the Depositor, the Master Servicer
and
the Trustee. No appointment shall be effective unless (i) such special servicer
meets the Minimum Servicing Requirements and (ii) all amounts reimbursable
to
the related Servicer pursuant to the terms of this Agreement shall have been
paid to the Servicer by the special servicer including without limitation,
all
unreimbursed Monthly Advances and Servicing Advances made by the Servicer
relating to such Mortgage Loan and all out-of-pocket expenses of the Servicer
incurred in connection with the transfer of servicing to such special servicer,
all accrued and unpaid Servicing Fees relating to such Mortgage
Loan.”
(r) The
first
paragraph of Section 3.01 of the Servicing Agreement is hereby deleted in its
entirety and replaced with the following:
“On
each
Remittance Date, the Servicer shall remit by wire transfer of immediately
available funds to the Owner (A) (i) all amounts credited to the related
Custodial Account as of the close of business on the preceding Determination
Date, net of charges against or withdrawals from the related Custodial Account
pursuant to Section 2.05, plus (ii) all Monthly Advances, if any, which the
Servicer is obligated to remit pursuant to Section 3.02; minus (B) (x) any
amounts attributable to Principal Prepayments received after the related
Principal Prepayment Period and (y) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date.”
(s) Section
3.02 of the Servicing Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
Section
3.02. Monthly
Advances.
(a) Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Servicer shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Servicer, whether or not deferred
pursuant to Section 2.01, of principal (due after the Cut-off Date) and interest
not allocable to the period prior to the Cut-off Date, at the net Mortgage
Interest Rate (less the Servicing Fee), which were due on a Mortgage Loan and
delinquent at the close of business on the related Determination
Date.
11
(b) The
obligation of the Servicer to make such Monthly Advances is mandatory,
notwithstanding any other provision of this Agreement, and, with respect to
any
Mortgage Loan or REO Property, shall continue until a Final Recovery
Determination in connection therewith; provided that, notwithstanding anything
herein to the contrary, no Monthly Advance shall be required to be made
hereunder by the Servicer if such Monthly Advance would, if made, constitute
a
Nonrecoverable Monthly Advance. The determination by the Servicer that it has
made a Nonrecoverable Monthly Advance or that any proposed Monthly Advance,
if
made, would constitute a Nonrecoverable Monthly Advance, shall be evidenced
by
an Officers’ Certificate delivered to the Purchaser.
(t) Section
4.03 of the Servicing Agreement is hereby amended by deleting the last sentence
of the first paragraph.
(u) Section
4.03 of the Servicing Agreement is hereby further amended by adding the
following paragraph at the end thereto:
“The
Servicer shall also be entitled on each Remittance Date to the aggregate of
any
Prepayment Interest Excess collected during the portion of the Principal
Prepayment Period commencing on the 1st day of the calendar month in which
such
Remittance Date occurs and ending on the date on which such prepayment is so
applied, which Prepayment Interest Excess the Servicer may withdraw from the
Custodial Account pursuant to Section 2.05; provided, however, any such
Prepayment Interest Excess to which the Servicer is entitled shall be reduced
by
the amount by which the aggregate Prepayment Interest Shortfalls for such
Principal Prepayment Period exceed the Servicer’s aggregate Servicing Fee
received with respect to the related Due Period.”
(v) Section
4.08(a) of the Servicing Agreement is hereby modified by deleting the phrase
“Owner shall remain responsible, as between Owner and Servicer, for losses” in
the first sentence therein and replacing such phrase with “the Servicer shall
have the right to be reimbursed from amounts deposited in the Custodial Account,
for losses, incurred by the Servicer,”.
(w) Section
4.08(a) of the Servicing Agreement is hereby further modified by deleting the
phrase “Owner shall be responsible” in the second sentence therein and replacing
such sentence with “the Servicer shall have the right to be reimbursed from
amounts deposited in the Custodial Account”.
(x) Section
4.08(b) of the Servicing Agreement is hereby modified by deleting the phrase
“Owner shall reimburse Servicer” in the first line therein and replacing such
phrase with “The Servicer shall have the right to be reimbursed from amounts
deposited in the Custodial Account”.
(y) Section
4.08(b) of the Servicing Agreement is hereby further modified by deleting the
phrase “will be reimbursed by Owner without approval of Owner” in the second
line of the second paragraph therein and replacing such phrase with “shall be
reimbursable from amounts deposited in the Custodial Account”.
12
(z) Section
5.01 of the Servicing Agreement is hereby deleted in its entirety and the
following paragraphs are substituted in lieu thereof:
“Not
later than the fifth (5th)
Business Day of each month (such date, the “Report Remittance Date”) the
Servicer shall furnish to the Master Servicer a Monthly Remittance Advice,
with
a trial balance report attached thereto, in the form of Exhibit 1 annexed hereto
in electronic medium mutually acceptable to the Servicer and the Master
Servicer, as to the preceding remittance and the period ending on the preceding
Determination Date.
Not
later
than two (2) Business Days following the end of each Principal Prepayment
Period, the Servicer shall deliver to the Master Servicer by electronic mail
(or
by such other means as the Servicer and the Master Servicer may agree from
time
to time) a prepayment report with respect to the related Remittance Date. Such
prepayment report shall include (i) such information with respect to the
prepayment charges as the Master Servicer may reasonably require and (ii)
information that the term of the last prepayment charge has expired or such
prepayment charge has been waived.”
(aa) Section
6.01(a) of the Servicing Agreement is hereby deleted in its entirety and
replaced with the following:
DB
Structured Products, Inc. shall have the right to transfer servicing of the
Mortgage Loans for which it owns the Servicing Rights at any time after the
date
hereof to a successor servicer that (i) is qualified to service loans for ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇ Mac and (ii) meets Minimum Servicing Requirements. The
appointment of any such successor servicer requires the consent of the Master
Servicer, which consent shall not be unreasonably withheld, and confirmation
from the rating agencies that the transfer of servicing will not result in
a
downgrade of the rating on any certificate created by the Pooling and Servicing
Agreement.
(bb) Section
8.06 of the Servicing Agreement is hereby deleted in its entirety and the
following paragraphs are substituted in lieu thereof:
Section
8.06 Merger
or Consolidation of Servicer.
The
Servicer shall keep in full effect its existence, rights and franchises as
a
limited liability company (or other entity resulting from merger, conversion
or
consolidation, to the extent permitted in this Section 8.06), and shall obtain
and preserve its qualification to do business as a foreign limited liability
company or such other entity in each jurisdiction in which such qualification
is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
or other entity (including without limitation, a limited liability company)
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to substantially all of the business
of the Servicer (whether or not related to mortgage loan servicing), shall
be
the successor of the 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
surviving Person shall be an institution (i) having a GAAP net worth of not
less
than $25,000,000, (ii) the deposits of which are insured by the FDIC, SAIF
or
BIF, or which is a HUD-approved mortgagee whose primary business is in the
servicing of mortgage loans, (iii) is a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved
seller/servicer in good standing, and (iv) having a servicer rating from each
Rating Agency at least as high as the servicer rating of the Servicer as of
the
date hereof.
13
(cc) The
following shall be added as Section 13.19 of the Servicing
Agreement:
Section
13.19 Third
Party Beneficiary.
For
purposes of this Agreement, any Master Servicer shall be considered a third
party beneficiary to this Agreement entitled to all the rights and benefits
accruing to any Master Servicer herein as if it were a direct party to this
Agreement.
8. Reserved.
9. Indemnification.
The
Servicer shall indemnify the Master Servicer, the Assignor, the Assignee, the
Trustee and their respective officers, directors, employees, agents and
affiliates (any such person, an “Indemnified Party”), and shall hold each of
them harmless from and against any claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon (i) any breach by the Servicer of its obligations under Article XIV of
the
Servicing Agreement, including particularly any failure by the Servicer, any
Subservicer or Subcontractor to deliver any information, report, certification,
accountants’ letter or other material when and as required under Article XIV of
the Servicing Agreement, including any failure by the Servicer to identify
pursuant to Section 14.06(b) of the Servicing Agreement any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB; (ii) any material misstatement or omission in any written
information, written data or materials provided by the Servicer, any Subservicer
or Subcontractor as required under Article XIV of the Servicing Agreement,
or
(iii) the negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless any Indemnified Party, then the Servicer agrees
that it shall contribute to the amount paid or payable by the Indemnified Party
as a result of the losses, claims, damages or liabilities of the Indemnified
Party in such proportion as is appropriate to reflect the relative fault of
the
Indemnified Party on the one hand and the Servicer in the other in connection
therewith.
Miscellaneous
10. Notwithstanding
anything to the contrary herein, the Company’s obligation to deliver any
reports, certificates or other documents to the Master Servicer, including,
but
not limited to, the reports and certificates set forth in Section 7 of this
AAR
Agreement, shall survive the termination or expiration of this AAR
Agreement.
14
11. All
demands, notices and communications related to the Assigned Loans, the Servicing
Agreement and this AAR Agreement shall be in writing and shall be deemed to
have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid, as follows:
a. In
the
case of Company,
GMAC
Mortgage, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Executive Vice President, National Loan Administration
b. In
the
case of Assignor,
DB
Structured Products, Inc.
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
c. In
the
case of Assignee,
MortgageIT
Securities Corp..
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇
d. In
the
case of the Master Servicer,
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Client Manager - MHL 2007-2
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
12. The
Company hereby acknowledges that the Master Servicer has been appointed as
the
master servicer of the Assigned Loans pursuant to the Pooling and Servicing
Agreement and therefor has the right to enforce all obligations of the Company
under the Servicing Agreement.
13. Each
party will pay any commissions, fees and expenses, including attorney’s fees, it
has incurred and the Assignor shall pay the fees of its attorneys and the
reasonable fees of the attorneys of the Assignee in connection with the
negotiations for, documenting of and closing of the transactions contemplated
by
this AAR Agreement.
15
14. This
AAR
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles (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.
15. No
term
or provision of this AAR Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
16. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which Assignor, Assignee or Company may be
merged or consolidated shall, without the requirement for any further writing,
be deemed Assignor, Assignee or Company, respectively, hereunder.
17. This
AAR
Agreement shall survive the conveyance of the Assigned Loans, the assignment
of
the Servicing Agreement to the extent of the Assigned Loans by Assignor to
Assignee and the termination of the Servicing Agreement.
18. This
AAR
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
19. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Servicing Agreement with respect to the Assigned Loans, the terms of this
AAR Agreement shall control.
20. For
purposes of this AAR Agreement, including, but not limited to Section 7 hereof,
the Master Servicer shall be considered a third party beneficiary to this AAR
Agreement entitled to all the rights and benefits accruing to the Master
Servicer as if it were a direct party to this AAR Agreement.
21. To
the
fullest extent permitted under applicable law, each party hereto hereby
irrevocably waives all right to a trial by jury in any action, proceeding or
counterclaim arising out of or relating to this AAR Agreement.
[SIGNATURE
PAGE FOLLOWS]
16
IN
WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as of
the
day and year first above written.
|
DB
STRUCTURED PRODUCTS, INC.
Assignor
|
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Director
|
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | |||
|
Name:
▇▇▇▇ ▇▇▇▇
Title:
Vice President
|
|
MORTGAGEIT
SECURITIES CORP.
Assignee
|
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
President
|
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇ ▇▇▇▇
Title:
Treasurer
|
|
GMAC
MORTGAGE, LLC
Company
|
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President
|
||||
ACKNOWLEDGED
AND AGREED TO:
|
▇▇▇▇▇
FARGO BANK, N.A.
Master
Servicer
|
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
|
||||
ATTACHMENT
1
ASSIGNED
LOANS
[PROVIDED
UPON REQUEST]
ATTACHMENT
2
SERVICING
AGREEMENT
AMENDED
AND RESTATED SERVICING AGREEMENT
among
DB
STRUCTURED PRODUCTS, INC.
Owner
and
GMAC
MORTGAGE, LLC
Servicer
Dated
as
of January
2,
2007
TABLE
OF
CONTENTS
|
Page
|
|
|
ARTICLE
I.
|
|
|
DEFINITIONS
|
|
|
Section
1.01 Definitions
|
1
|
|
ARTICLE
II.
|
|
|
SERVICING
|
|
|
Section
2.01 Servicer to Act as Servicer
|
14
|
|
Section
2.02 Liquidation of Mortgage Loans
|
16
|
|
Section
2.03 Collection of Mortgage Loan Payments
|
18
|
|
Section
2.04 Establishment of and Deposits to Custodial Account
|
18
|
|
Section
2.05 Permitted Withdrawals From Custodial Account
|
19
|
|
Section
2.06 Establishment of and Deposits to Escrow Account
|
20
|
|
Section
2.07 Permitted Withdrawals From Escrow Account
|
21
|
|
Section
2.08 Payment of Taxes, Insurance and Other Charges
|
22
|
|
Section
2.09 Protection of Accounts
|
23
|
|
Section
2.10 Maintenance of Hazard Insurance
|
24
|
|
Section
2.11 Maintenance of Blanket Hazard Insurance Coverage
|
25
|
|
Section
2.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance
|
26
|
|
Section
2.13 Inspections
|
26
|
|
Section
2.14 Restoration of Mortgaged Property
|
27
|
|
Section
2.15 Charged-Off Mortgage Loans
|
27
|
|
Section
2.16 Title, Management and Disposition of REO Property
|
27
|
|
Section
2.17 Permitted Withdrawals with Respect to REO Property
|
29
|
|
Section
2.18 Real Estate Owned Reports
|
29
|
|
Section
2.19 Liquidation Reports
|
29
|
|
Section
2.20 Reports of Foreclosures and Abandonments of Mortgaged
Property
|
29
|
|
Section
2.21 Notification of Adjustments
|
29
|
|
Section
2.22 Maintenance of PMI Policies
|
30
|
|
ARTICLE
III.
|
|
|
PAYMENTS
TO OWNER
|
|
|
Section
3.01 Remittances
|
31
|
|
Section
3.02 Advances by Servicer
|
31
|
-i-
|
ARTICLE
IV.
|
|
|
GENERAL
SERVICING PROCEDURES
|
|
|
Section
4.01 Transfers of Mortgaged Property
|
32
|
|
Section
4.02 Satisfaction of Mortgages and Release of Mortgage
Files
|
33
|
|
Section
4.03 Servicing Compensation
|
34
|
|
Section
4.04 Annual Statement as to Compliance
|
34
|
|
Section
4.05 Annual Independent Public Accountants’ Servicing
Report
|
34
|
|
Section
4.06 Right to Examine Servicer Records
|
35
|
|
Section
4.07 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999
|
35
|
|
Section
4.08 Losses and Expenses
|
35
|
|
ARTICLE
V.
|
|
|
SERVICER
TO COOPERATE
|
|
|
Section
5.01 Statements to Owner
|
37
|
|
Section
5.02 Financial Statements; Servicing Facilities
|
38
|
|
ARTICLE
VI.
|
|
|
TERMINATION
|
|
|
Section
6.01 Termination
|
38
|
|
Section
6.02 Transfer Procedures
|
40
|
|
ARTICLE
VII.
|
|
|
BOOKS
AND RECORDS
|
|
|
Section
7.01 Possession of Servicing Files Prior to the related Transfer
Date
|
41
|
|
ARTICLE
VIII.
|
|
|
INDEMNIFICATION
AND ASSIGNMENT
|
|
|
Section
8.01 Indemnification
|
42
|
|
Section
8.02 Limitation on Liability of Servicer and Others
|
44
|
|
Section
8.03 Limitation on Assignment and Resignation by Servicer
|
45
|
|
Section
8.04 Operation of Indemnities
|
46
|
|
Section
8.05 Assignment by Owner
|
46
|
|
Section
8.06 Merger or Consolidation of the Servicer
|
46
|
-ii-
|
ARTICLE
IX.
|
|
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF OWNER
|
|
|
Section
9.01 Organization and Good Standing; Licensing
|
47
|
|
Section
9.02 Authorization; Binding Obligations
|
47
|
|
Section
9.03 No Consent Required
|
47
|
|
Section
9.04 No Violations
|
47
|
|
Section
9.05 Litigation
|
48
|
|
Section
9.06 Ownership
|
48
|
|
Section
9.07 Service Contracts
|
48
|
|
Section
9.08 Accuracy
|
48
|
|
ARTICLE
X.
|
|
|
REPRESENTATIONS
AND WARRANTIES OF SERVICER
|
|
|
Section
10.01 Due Organization and Authority
|
48
|
|
Section
10.02 Ordinary Course of Business
|
49
|
|
Section
10.03 No Violation
|
49
|
|
Section
10.04 Ability to Service
|
49
|
|
Section
10.05 Ability to Perform
|
49
|
|
Section
10.06 Litigation
|
49
|
|
Section
10.07 No Consent Required
|
50
|
|
ARTICLE
XI.
|
|
|
DEFAULT
|
|
|
Section
11.01 Events of Default
|
50
|
|
Section
11.02 Waiver of Defaults
|
52
|
|
ARTICLE
XII.
|
|
|
CLOSING
|
|
|
Section
12.01 Closing Documents
|
52
|
|
ARTICLE
XIII.
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
13.01 Notices
|
52
|
|
Section
13.02 Waivers
|
53
|
|
Section
13.03 Entire Agreement; Amendment
|
54
|
|
Section
13.04 Execution; Binding Effect
|
54
|
-iii-
|
Section
13.05 Confidentiality of Information
|
54
|
|
Section
13.06 Headings
|
55
|
|
Section
13.07 Applicable Law
|
55
|
|
Section
13.08 Relationship of Parties
|
56
|
|
Section
13.09 Severability of Provisions
|
56
|
|
Section
13.10 Recordation of Assignments of Mortgage
|
56
|
|
Section
13.11 Exhibits
|
56
|
|
Section
13.12 Counterparts
|
56
|
|
Section
13.13 No Solicitation
|
56
|
|
Section
13.14 Cooperation of Servicer with a Reconstitution
|
57
|
|
Section
13.15 Force Majeure
|
59
|
|
Section
13.16 WAIVER OF TRIAL BY JURY
|
59
|
|
Section
13.17 LIMITATION OF DAMAGES
|
59
|
|
Section
13.18 SUBMISSION TO JURISDICTION; WAIVERS
|
59
|
|
ARTICLE
XIV.
|
|
|
COMPLIANCE
WITH REGULATION AB.
|
|
|
Section
14.01 Intent of the Parties; Reasonableness
|
60
|
|
Section
14.02 Additional Representations and Warranties of the
Servicer
|
61
|
|
Section
14.03 Information to Be Provided by the Servicer
|
62
|
|
Section
14.04 Servicer Compliance Statement
|
65
|
|
Section
14.05 Report on Assessment of Compliance and Attestation
|
65
|
|
Section
14.06 Use of Subservicers and Subcontractors
|
67
|
|
Section
14.07 Indemnification; Remedies
|
67
|
-iv-
EXHIBITS
|
EXHIBIT
1
|
FORM
OF TRIAL BALANCE
|
|
EXHIBIT
2
|
FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
|
|
EXHIBIT
3
|
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
4
|
FORM
OF ESCROW ACCOUNT CERTIFICATION
|
|
EXHIBIT
5
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
6
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
7
|
MORTGAGE
LOAN SCHEDULE
|
|
EXHIBIT
8
|
TRANSFER
INSTRUCTIONS
|
|
EXHIBIT
9A
|
ELIGIBILITY
CRITERIA FOR ALT A FIRST LIEN MORTGAGE LOANS AND ALT A SECOND LIEN
CLOSED-END MORTGAGE LOANS
|
|
EXHIBIT
9B
|
ELIGIBILITY
CRITERIA FOR SUBPRIME SECOND LIEN MORTGAGE LOANS
|
|
EXHIBIT
10
|
FORM
OF LIMITED POWER OF ATTORNEY
|
|
EXHIBIT
11
|
FORM
OF OPINION OF COUNSEL TO THE SERVICER FOR
RECONSTITUTION
|
|
EXHIBIT
12A
|
TERM
SHEET FOR ALT A FIRST LIEN MORTGAGE LOANS AND ALT A SECOND LIEN
CLOSED-END
MORTGAGE LOANS
|
|
EXHIBIT
12B
|
TERM
SHEET FOR SUBPRIME SECOND LIEN MORTGAGE LOANS
|
|
EXHIBIT
13
|
SERVICING
PERFORMANCE STANDARDS AND APPROVAL MATRIX
|
|
EXHIBIT
14
|
FORM
OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
|
|
EXHIBIT
15
|
FORM
OF INDEMNIFICATION AGREEMENT
|
|
EXHIBIT
16
|
FORM
OF LIQUIDATION REPORT
|
|
EXHIBIT
17
|
FORM
OF MONTHLY REPORTING PACKAGE
|
|
EXHIBIT
18
|
SERVICER
RATINGS
|
|
EXHIBIT
19
|
FORM
OF POOLING AND SERVICING AGREEMENT
|
|
EXHIBIT
20
|
FORM
OF ANNUAL CERTIFICATION
|
|
EXHIBIT
21
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
|
-v-
SERVICING
AGREEMENT
This
Amended and Restated Servicing Agreement (“Servicing Agreement” or “Agreement”)
is entered into as of August 5, 2005, as amended and restated to and including
January
2,
2007,
by and among GMAC MORTGAGE, LLC (formerly known as GMAC Mortgage Corporation),
a
Delaware limited liability company (the “Servicer”) and DB STRUCTURED PRODUCTS,
INC., a Delaware corporation (the “Owner”).
WHEREAS,
the Servicer and the Owner entered into that certain Servicing Agreement, dated
as of August 5, 2005 (the “Original Agreement”).
WHEREAS,
the Servicer and the Owner desire to enter into this Servicing Agreement in
order to amend and restate the Original Agreement in its entirety.
WHEREAS,
the Owner has purchased and will purchase in the future conventional,
residential, first and second lien mortgage loans (the “Mortgage Loans”);
and
WHEREAS,
the Servicer regularly services residential mortgage loans and has agreed to
service the mortgage loans that become subject to this Agreement and the parties
desire to provide the terms and conditions of such servicing by the
Servicer.
NOW,
THEREFORE, in consideration of the mutual premises and agreements set forth
herein and for other good and valuable consideration, the receipt and the
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
I.
DEFINITIONS
Section
1.01 Definitions.
The
following terms are defined as follows:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan or REO Property, (i) the ▇▇▇▇▇▇ ▇▇▇ Guides, (ii)
to
the extent not inconsistent with those mortgage servicing practices of mortgage
lending institutions that service mortgage loans of the same type as such
Mortgage Loan in the jurisdiction where the related Mortgaged Property is
located, exercising the same care in performing those practices that the
Servicer customarily employs and exercises in servicing and administering
similar mortgage loans for its own account (including, compliance with all
applicable federal, state and local laws) and (ii) the applicable Servicing
Performance Standards and
Approval Matrix.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan with respect to which the related Mortgage Note contains a
provision whereby the Mortgage Interest Rate is subject to adjustment from
time
to time in accordance with the terms of such Mortgage Note.
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.
Ancillary
Income:
All
income derived from the Mortgage Loans other than payments of principal,
interest and Escrow Payments (excluding Servicing Fees and prepayment penalties
attributable to the Mortgage Loans), including but not limited to interest
received on funds deposited in the Custodial Account or any Escrow Account
(to
the extent permitted by applicable law), all late charges (except as set forth
in Exhibit
12A),
escrow
account benefits, reinstatement fees, fees received with respect to checks
on
bank drafts returned by the related bank for insufficient funds, assumption
fees, and similar types of fees arising from or in connection with any Mortgage
Loan to the extent not otherwise payable to the Mortgagor under applicable
law
or pursuant to the terms of the related Mortgage Note.
Appraised
Value:
The
value of the Mortgaged Property at the time of the Mortgage Loan’s origination
as used by the originating lender in underwriting such Mortgage
Loan.
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
Owner.
BPO:
A
broker price opinion.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking
and savings and loan institutions in the States of New York, Iowa, Connecticut
or the Commonwealth of Pennsylvania are authorized or obligated by law or
executive order to be closed.
Catastrophic
Advance:
A
Servicing Advance made in good faith by the Servicer that would not be a
Nonrecoverable Advance except for the later occurrence of a catastrophic event
(e.g., a natural disaster) that substantially reduces the value of the Mortgaged
Property.
Charged-Off
Mortgage Loan:
Any
Mortgage Loan which is (i) one hundred and eighty (180) or more days delinquent
and (ii) in connection with a foreclosure of such Mortgage Loan, there would
be
insufficient proceeds, determined by the Servicer in its good faith judgment
in
accordance with Accepted Servicing Practices, to satisfy the sum of (a) the
accrued interest thereon at the Mortgage Interest Rate from the interest paid
to
date to the day of such foreclosure, (b) all outstanding advances, (c) all
expenses (including attorneys’ fees) incurred in connection with such
foreclosure and (d) $10,000.
Code:
Internal Revenue Code of 1986, as amended.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
-2-
CPI:
The
Consumer Price Index for All Urban Consumers (CPI-U), United States City
Average, All Items (1982-84=100) (the CPI Index), published monthly by the
Bureau of Labor Statistics of the US Department of Labor.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
2.06.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents.
Custodian:
The
custodian of the Mortgage Loan Documents as specified under the related
Custodial Agreement.
Deboarding
Fee:
With
respect to each Mortgage Loan, the deboarding fee set forth in the related
Term
Sheet.
Default:
A
Mortgage Loan shall be considered in default when one Monthly Payment is due
and
unpaid as of the last day of the calendar month in which the Monthly Payment
was
due.
Depositor:
The
depositor,
as such
term is defined in Regulation AB, with respect to any Securitization
Transaction.
Determination
Date:
The
last calendar day of the month preceding the related Remittance
Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Due
Period:
With
respect to any Remittance Date, the calendar month preceding such Remittance
Date.
Eligibility
Criteria:
The
eligibility criteria for residential mortgage loans to be delivered by Owner
after the date of this Agreement to be serviced by Servicer under this
Agreement, as specified in Exhibit
9A
and
Exhibit9B,
as the
same may be amended from time to time with the mutual consent of both
parties.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than one day prior to the Remittance Date
in
each month (or such other date as permitted under this Agreement)or payable
on
demand:
|
(i)
|
direct
obligations of, and obligations fully guaranteed as to full and timely
payment of principal and interest by, the United States of America
or any
agency or instrumentality of the United States of America, provided,
that
such obligations are backed by the full faith and credit of the United
States of America (“Direct
Obligations”);
|
-3-
|
(ii)
|
federal
funds, demand and time deposits in, certificates of deposits of,
or
bankers’ acceptances issued by, any depository institution or trust
company 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)
|
Direct
Obligations or securities guaranteed by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
provided, that any such obligation, at the time of purchase or contractual
commitment providing for the purchase thereof, is qualified by each
Rating
Agency as an investment of funds backing securities rated
“AAA;
|
|
(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 one of the two highest long-term credit rating categories
of each Rating Agency; 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 to exceed 10% of the aggregate
principal amount of all Eligible Investments in the Custodial Accounts
and
the Escrow Accounts; provided, further, that such securities will
not be
Eligible Investments if they are published as being under review
with
negative implications from either Rating
Agency;
|
|
(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
at
the time of such investment or contractual commitment providing for
such
investment, and is issued by a corporation the outstanding senior
long-term debt obligations of which are then rated by each Rating
Agency
in one of its two highest long-term unsecured rating
categories;
|
|
(vi)
|
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;
|
|
(vii)
|
any
other demand, money market, common trust fund or time deposit or
obligation, or interest-bearing or other security or investment rated
in
the highest rating category by each Rating Agency; and
|
-4-
|
(viii)
|
general
obligations of or obligations guaranteed by any state of the United
States
or the District of Columbia receiving one of the two highest long-term
debt ratings available for such securities by each Rating
Agency.
|
provided,
however, that (a) any such instrument shall be acceptable to the Rating
Agencies, and (b) 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.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Servicer pursuant
to Section 2.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
2.06.
Escrow
Payment:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 11.01.
Exchange
Act:
The
Securities Exchange
Act of
1934, as amended.
▇▇▇▇▇▇
Mae:
The
Federal National Mortgage Association, or any successor thereto.
▇▇▇▇▇▇
▇▇▇ Guides:
The
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ Guide and the ▇▇▇▇▇▇ ▇▇▇ Servicers’ Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHA:
The
Federal Housing Authority, or any successor thereto.
FHLMC
or
▇▇▇▇▇▇▇
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
2.12.
Fitch:
Fitch,
Inc., or its successor in interest.
Forbearance:
Shall
have the meaning set forth in Section 2.01.
-5-
Foreclosure
Commencement:
The
delivery of the applicable file to the Servicer’s foreclosure counsel for
initiation of foreclosure proceedings.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which amount is added to the Index in
accordance with the terms of the related Mortgage Note to determine on each
Interest Rate Adjustment Date the Mortgage Interest Rate for such Mortgage
Loan.
HOEPA
Loan:
A
Mortgage Loan subject to the Home Ownership and Equity Protection Act of 1994
(“HOEPA”).
Index:
With
respect to each Adjustable Rate Mortgage Loan, the index set forth in the
related Mortgage Note.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property, to the extent not required
to
be released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents.
Interest
Rate Adjustment Date:
With
respect to each Adjustable Rate Mortgage Loan, the date, specified in the
related Mortgage Note and the Mortgage Loan Schedule, on which the Mortgage
Interest Rate is adjusted.
Lifetime
Rate Cap:
The
provision of each Mortgage Note related to an Adjustable Rate Mortgage Loan
which provides for an absolute maximum Mortgage Interest Rate thereunder. The
Mortgage Interest Rate during the terms of each Adjustable Rate Mortgage Loan
shall not at any time exceed the Mortgage Interest Rate at the time of
origination of such Adjustable Rate Mortgage Loan by more than the amount per
annum set forth on the Mortgage Loan Schedule.
Liquidation
Proceeds: Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the most recent ratio (expressed as a percentage)
of the outstanding principal amount of the Mortgage Loan, to the lesser of
(a) the Appraised Value and (b) if the Mortgage Loan was made to
finance the acquisition of the related Mortgaged Property, the purchase price
of
the Mortgaged Property.
LPMI
Policy:
A
policy of primary mortgage guaranty insurance issued by an insurer pursuant
to
which the related premium is to be paid by the servicer of the related Mortgage
Loan from payments of interest made by the Mortgagor in an amount as is set
forth in the related Mortgage Loan Schedule.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer,” if any,
identified in the related transaction documents.
-6-
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the state of Delaware, or any successor
thereto.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Monthly
Remittance Advice:
As
described in Section 3.02.
Moody’s:
▇▇▇▇▇’▇
Investors Service, Inc., and any successor thereto.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first or second lien, as applicable, on an unsubordinated estate
in
fee simple in real property securing the Mortgage Note; except that with respect
to real property located in jurisdictions in which the use of leasehold estates
for residential properties is a widely-accepted practice, the mortgage, deed
of
trust or other instrument securing the Mortgage Note may secure and create
a
first or second lien, as applicable, upon a leasehold estate of the
Mortgagor.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to as the Mortgage
File
in Exhibit
6
annexed
hereto to the extent received by the Servicer from the prior servicer,
sub-servicer or originator, and any additional documents required to be added
to
the Mortgage File pursuant to this Agreement.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note with respect to each Mortgage
Loan.
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement, each mortgage
loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule, which mortgage loan includes without limitation the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, Servicing Rights and all
other rights, benefits, proceeds and obligations arising from or in connection
with such mortgage loan, excluding replaced or repurchased mortgage loans.
Mortgage
Loan Documents:
The
documents listed on Exhibit
6
attached
hereto pertaining to any Mortgage Loan.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans, provided by the prior Servicer, setting forth,
to
the extent available, the following information with respect to each Mortgage
Loan: (1) the loan seller’s Mortgage Loan identifying number; (2) the
Mortgagor’s name; (3) the street address of the Mortgaged Property
including the city, state and zip code; (4) a code indicating whether the
Mortgaged Property is owner-occupied, a second home or investment property;
(5) the number and type of residential units constituting the Mortgaged
Property (i.e. a single family residence, a 2-4 family residence, a unit in
a
condominium project or a unit in a planned unit development, manufactured
housing); (6) the original months to maturity or the remaining months to
maturity from the Transfer Date, in any case based on the original amortization
schedule and, if different, the maturity expressed in the same manner but based
on the actual amortization schedule; (7) Loan to Value Ratio at
origination; (8) with respect to First Lien Loans, the LTV at origination and
with respect to second lien loans, the CLTV at origination; (9) the Mortgage
Interest Rate as of the Transfer Date; (10) the date on which the Monthly
Payment was due on the Mortgage Loan and, if such date is not consistent with
the Due Date currently in effect, such Due Date; (11) the stated maturity
date; (12) the amount of the Monthly Payment as of the Transfer Date;
(13) the last payment date on which a Monthly Payment was actually applied
to pay interest and the outstanding principal balance; (14) the original
principal amount of the Mortgage Loan; (15) the principal balance of the
Mortgage Loan as of the close of business on the Transfer Date; (16) with
respect to Adjustable Rate Mortgage Loans, the first Interest Rate Adjustment
Date; (17) with respect to Adjustable Rate Mortgage Loans, the Gross
Margin; (18) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (19) with respect to
Adjustable Rate Mortgage Loans, a code indicating the type of Index;
(20) with respect to Adjustable Rate Mortgage Loans, the Periodic Rate Cap
under the terms of the Mortgage Note; (21) [reserved]; (22) the type of Mortgage
Loan (i.e., fixed rate, adjustable rate, first lien, second lien);
(23) [reserved]; (24) a code indicating the documentation style (i.e.
full, alternative or reduced); (25) [reserved]; (26) whether such
Mortgage Loan provides for a Prepayment Charge; (27) the Prepayment Charge
period of such Mortgage Loan, if applicable; (28) ) a description of the
Prepayment Charge, if applicable; (29) the Mortgage Interest Rate as of
origination; (30) the credit risk score (FICO score) at origination;
(31)[reserved]; (32) [reserved]; (33)[reserved]; (34) the Mortgage Interest
Rate
floor; (35) the Mortgage Interest Rate calculation method (i.e. 30/360, simple
interest, other); (36) a code indicating whether the Mortgage Loan is a HOEPA
Loan; (37) a code indicating whether the Mortgage Loan is assumable; (38) a
code
indicating whether the Mortgage Loan has been modified; (39) the one year
payment history; (40) the Due Date for the first Monthly Payment; (41) the
original Monthly Payment due; (42) with respect to the related Mortgagor, the
debt-to-income ratio; (43) the Appraised Value of the Mortgaged Property; (44)
the sales price of the Mortgaged Property if the Mortgage Loan was originated
in
connection with the purchase of the Mortgaged Property; (45)[reserved]; (46)
a
twelve month history for the Mortgage Loan and the number of times thirty,
sixty, and ninety days delinquent in the past twelve months; (47) a code
indicating the payment status of the Mortgage Loan (i.e. bankruptcy,
foreclosure, REO, other litigation; (48)[reserved]; and (49) Forbearance. With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall
set forth the following information: (1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and (4) the weighted average maturity of the Mortgage Loans. This
information is listed on Exhibit
7
attached
hereto.
-7-
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
real property (or leasehold estate, if applicable) securing repayment of the
debt evidenced by a Mortgage Note.
Mortgagor:
The
obligor on a Mortgage Note.
New
Loan Data File:
With
respect to each Mortgage Loan delivered, or caused to be delivered, after the
date of this Agreement by Owner to be subserviced by Servicer under this
Agreement, the data file produced by Owner or the prior servicer pursuant to
the
Transfer Instructions, which is used to enable Servicer to set up each Mortgage
Loan on its loan servicing system.
-8-
Nonrecoverable
Advance:
Any
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan which, in the good faith judgment of the Servicer, will not or,
in
the case of a proposed advance, would not, be ultimately recoverable from
related Insurance Proceeds, Liquidation Proceeds or otherwise from such Mortgage
Loan. The determination by the Servicer that it has made a Nonrecoverable
Advance or that any proposed advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officer’s Certificate delivered to the
Owner.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or Vice President or Senior Vice President and by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Servicer, and delivered to the Owner.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Servicer, reasonably
acceptable to the Owner.
Originator:
With
respect to a Mortgage Loan, the originator of the related Mortgage
Loan.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which provides for an absolute maximum amount by which the Mortgage
Interest Rate therein may increase on an Interest Rate Adjustment Date above
the
Mortgage Interest Rate previously in effect.
Periodic
Rate Floor:
With
respect to each Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which provides for an absolute maximum amount by which the Mortgage
Interest Rate therein may decrease on an Interest Rate Adjustment Date below
the
Mortgage Interest Rate previously in effect.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by an insurer, as required
by this Agreement with respect to certain Mortgage Loans.
Prepayment
Charge:
With
respect to any Mortgage Loan, any prepayment penalty or premium thereon payable
in connection with a principal prepayment on such Mortgage Loan pursuant to
the
terms of the related Mortgage Note.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The Wall Street Journal (Northeast edition).
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any Prepayment
Charge
thereon
and which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment.
-9-
Principal
Prepayment Period:
The
month preceding the month in which the related Remittance Date
occurs.
Qualified
Depository:
A
depository (a) the accounts of which are insured by the FDIC and (b) the short
term debt ratings and the long term deposit ratings of which are rated in one
of
the two highest rating categories by each of the Rating Agencies.
Rating
Agency:
Any of
Fitch or Standard & Poor’s, or their respective successors designated by the
Owner.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreements:
As
defined in Section 13.14 hereof.
Reconstitution
Date:
As
defined in Section 13.14 hereof.
Recourse
Obligation:
With
respect to any Mortgage Loan, any obligation or liability (actual or contingent)
of the Servicer or its Affiliates, as applicable (i) for loss of principal
incurred in connection with the foreclosure or other disposition of, or other
realization or attempt to realize upon the collateral securing such Mortgage
Loan (including losses relating to loss mitigation, obtaining deeds in lieu
of
foreclosure, VA No-Bid Instructions, or VA partial guaranties); (ii) to
repurchase such Mortgage Loan in the event that the Mortgagor of such Mortgage
Loan has filed for bankruptcy protection, the Mortgaged Property is the subject
of foreclosure or other litigation proceedings; or (iii) to repurchase such
Mortgage Loan in the event of a delinquency or other payment default thereunder
by the related Mortgagor.
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, 2007)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The 5th
Business Day of the each month.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
-10-
REO
Disposition Proceeds:
Amounts
received by the Servicer in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Owner through
foreclosure or by deed in lieu of foreclosure, as described in Section
2.15.
RESPA:
Real
Estate Settlement Procedures Act, as amended from time to time.
▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act:
The
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended from time to time.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer
Employees:
As
defined in Section 2.12 hereof.
Servicer
Information:
As
defined in Section 14.07(a).
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Servicer of its servicing obligations, including, but not
limited to, the cost of (a) the preservation, restoration and protection of
the
Mortgaged Property, (b) any enforcement, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, elections, foreclosures by subordinate or superior lienholders,
and other legal actions incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable and that the Servicer specifies
the
Mortgage Loan(s) to which such expenses relate)s, (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
(e) compliance with the obligations pursuant to the provisions of this
Agreement.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the fee the Owner shall pay to
the
Servicer, as set forth in the related Term Sheet.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Servicer consisting
of
originals, if provided, or copies of all documents in the Mortgage File which
are not delivered to the Owner, its designee or the Custodian and copies of
the
Mortgage Loan Documents.
-11-
Servicing
Performance Standards and Approval Matrix:
The
servicing standards set forth on Exhibit
13.
Servicing
Rights:
Any and
all of the following: (a) any and all rights to service the Mortgage Loans;
(b) any payments to or monies received by the Servicer for servicing the
Mortgage Loans; (c) any Ancillary Income with respect to the Mortgage Loans;
(d) all agreements or documents creating, defining or evidencing any such
servicing rights to the extent they relate to such servicing rights and all
rights of the Servicer thereunder; (e) any and all rights to and in the
Escrow Payments or other similar payments with respect to the Mortgage Loans
and
any amounts actually collected by the Servicer with respect thereto;
(f) all accounts and other rights to payment related to any of the property
described in this paragraph; and (g) any and all documents, files, records,
servicing files, servicing documents, servicing records, data tapes, computer
records, or other information pertaining to the Mortgage Loans or pertaining
to
the past, present or prospective servicing of the Mortgage Loans.
Servicing
Transfer Date:
The
date on or dates which the physical servicing of the Mortgage Loans is
transferred to the Servicer pursuant to this Agreement.
Standard
& Poor’s:
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies
Inc., and any successor thereto.
Stated
Principal Balance:
As to
each Mortgage Loan, (i) the principal balance of the Mortgage Loan at the
Transfer Date after giving effect to payments of principal received on or before
such date minus (ii) all amounts previously distributed to the Owner with
respect to the related Mortgage Loan representing payments or recoveries of
principal or advances in lieu thereof.
Subcontractor:
Any
vendor, subcontractor or other Person, except for an insurance tracking service,
that is not responsible for the overall servicing (as “servicing” is commonly
understood by participants in the mortgage-backed securities market) of Mortgage
Loans but performs one or more discrete functions identified in Item 1122(d)
of
Regulation AB with respect to Mortgage Loans under the direction or authority
of
the Servicer or a Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Term
Sheet:
The
Term Sheet form attached hereto as Exhibit
12A
and
Exhibit 12B
that
correspond with Exhibit
9A
and
Exhibit
9B
respectively.
Termination
Fee:
With
respect to each Mortgage Loan, the termination fee set forth in the related
Term
Sheet.
-12-
Transfer
Date:
With
respect to each Mortgage Loan, the date Servicer physically assumes its
obligations of servicing pursuant to this Agreement.
Transfer
Instructions:
The
transfer instructions used by the Servicer provided in connection with any
given
transfer of additional Mortgage Loans for servicing under this Agreement,
attached as Exhibit
8.
VA:
The
United States Department of Veterans Affairs, or any successor
thereto.
VA
No-Bid Instruction:
An
instruction given by the VA to the effect that the VA will not accept conveyance
of the REO Property related to the foreclosure of a Mortgage Loan or when the
VA
pays all or part of the difference between the net sale proceeds and the total
indebtedness on a VA guaranteed loan following the private sale of the property
where the proceeds are insufficient to fully payoff the existing
Mortgage.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
-13-
ARTICLE
II.
SERVICING
Section
2.01 Servicer
to Act as Servicer.
From
and
after the date of this Agreement, the Servicer, as an independent contractor,
shall service and administer each Mortgage Loan and shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement, Accepted Servicing Practices and
the ▇▇▇▇▇▇ ▇▇▇ Guides.
From
and
after the date of this Agreement, Servicer shall assume responsibility under
this Agreement to subservice and administer additional Mortgage Loans upon
the
delivery, in accordance with the Transfer Instructions to the extent reasonably
necessary to effect such transfer, of the related New Loan Data File and all
related Mortgage Loan documentation by or on behalf of Owner (including
deliveries by the applicable prior servicer pursuant to directions by Owner)
provided that such new Mortgage Loans meet the Eligibility Criteria then in
effect. The Servicer agrees to cooperate reasonably with the Owner and with
any
party designated as the prior servicer or subservicer in transferring the
servicing to the Servicer. Owner shall provide or cause to be provided by the
applicable prior servicer or subservicer, the New Loan Data File for each
Mortgage Loan to Servicer no later than five (5) days before Servicer is
expected to perform subservicing on that Mortgage Loan. Owner shall notify
Servicer within two (2) Business Days, in writing, of any changes in the
information contained in the New Loan Data File. Owner agrees to cause the
applicable Custodian to provide Servicer, within five (5) Business Days after
receipt of Servicer’s request, copies of the Mortgage Note, the Mortgage or any
other documents the applicable Custodian maintains for the benefit of the Owner
with respect to a Mortgage Loan that Servicer deems reasonably necessary in
connection with its performance of the Servicing of said Mortgage
Loan.
In
servicing and administering the Mortgage Loans, the Servicer shall employ
Accepted Servicing Practices except and to the extent that such practices
conflict with the requirements of this Agreement. The Servicer shall retain
adequate personnel to effect such servicing and administration of the Mortgage
Loans.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if in
the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Owner, provided,
however, that unless the Servicer has obtained the prior written consent of
the
Owner, the Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive
the
payment of principal or interest, reduce or increase the outstanding principal
balance (except for actual payments of principal) or change the final maturity
date on such Mortgage Loan. In the event that any Mortgage is in Default or,
in
the judgment of the Servicer, such a Default is reasonably foreseeable, the
Servicer, consistent with Accepted Servicing Practices, may also waive, modify
or vary any term of such Mortgage Loan (including modifications that would
change the Mortgage Interest Rate, forgive the payment of principal or interest,
), accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of such Mortgage Loan, or consent to
the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, payment
plans, variances, forgiveness of principal or interest, postponements, or
indulgences collectively referred to herein as “Forbearance”). The Servicer’s
analysis supporting any Forbearance and the conclusion that any Forbearance
meets the standards of this section shall be reflected as appropriate in the
Servicer’s records.
-14-
Without
limiting the generality of the foregoing, the Servicer shall continue, and
is
hereby authorized and empowered, to execute and deliver on behalf of itself
and
the Owner, all instruments and documents necessary to carry out its servicing
and administrative duties under this Agreement including but not limited to
instruments in connection with foreclosures, satisfaction or cancellation,
partial or full release, discharge and all other comparable instruments with
respect to the Mortgage Loans and with respect to the Mortgaged Properties.
The
Owner shall furnish the Servicer with a limited power of attorney in the form
attached hereto as Exhibit
10
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement. Owner acknowledges and agrees that a fee of
eighteen ($18.00) dollars will be charged to the Owner for each limited power
of
attorney filed by the Servicer. Owner agrees to supply Servicer with any other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties under this Agreement.
The
Servicer’s computer system shall clearly reflect the ownership of each Mortgage
Loan. The Servicer shall release from its custody the contents of any Servicing
File retained by it only in accordance with this Agreement or at the written
direction of the Owner.
With
respect to the performance of any service required to be provided for Servicer
hereunder, including, without limitation, the obtainment of credit report data,
the provision of field or other inspections, the provision of title-related
services, and the sale or management of REO properties, the Servicer may obtain
such services from an Affiliate if such services are provided on a commercially
reasonable basis with respect to the price and quality of such
services.
The
Servicer shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall
be
in form and substance sufficient to meet the reporting requirements imposed
by
such Sections 6050H, 6050J and 6050P of the Code.
Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Servicer may not waive
any
Prepayment Charge or portion thereof required by the terms of the related
Mortgage Note unless (i) the Servicer determines that such waiver would maximize
recovery of Liquidation Proceeds for such Mortgage Loan, taking into account
the
value of such Prepayment Charge and the Mortgage Loan, and the waiver of such
Prepayment Charge is standard and customary in servicing similar Mortgage Loans
(including the waiver of a Prepayment Charge in connection with a refinancing
of
the Mortgage Loan related to a default or a reasonably foreseeable default)
or
(ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors’ rights or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law. Servicer shall notify Owner within two (2) Business Days if
Servicer determines that any collection of any Prepayment Charge is limited
or
prohibited by applicable law. In no event shall the Servicer waive a Prepayment
Charge in connection with a refinancing of a Mortgage Loan that is not related
to a default or a reasonably foreseeable default. If the Servicer waives or
does
not collect all or a portion of a Prepayment Charge relating to a Principal
Prepayment in full or in part due to any action or omission of the Servicer,
other than as provided above, the Servicer shall deposit the amount of such
Prepayment Charge (or such portion thereof as had been waived for deposit)
into
the Custodial Account at the time of such prepayment for distribution in
accordance with the terms of this Agreement.
-15-
Section
2.02 Liquidation
of Mortgage Loans.
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 2.01 is not paid when the same becomes due and payable, or in the event
the Mortgagor fails to perform any other covenant or obligation under the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Servicer shall take such action as is consistent with Accepted Servicing
Practices. In the event that any payment due under any first lien Mortgage
Loan
is not postponed pursuant to Section 2.01 and remains delinquent for a period
of
90 days or any other default continues for a period of 90 days beyond the
expiration of any grace or cure period (or such other period as is required
by
law in the jurisdiction where the related Mortgaged Property is located) or
earlier as determined by the Servicer, the Servicer shall cause a Foreclosure
Commencement in accordance with Accepted Servicing Practices. In such
connection, the Servicer shall from its own funds make all necessary and proper
Servicing Advances, provided, however, that the Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration or preservation of any Mortgaged Property, unless it shall determine
(a) that such preservation, restoration and/or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan to Owner after reimbursement to
itself for such expenses and (b) that such expenses will be recoverable by
it
either through Liquidation Proceeds (respecting which it shall have priority
for
purposes of withdrawals from the Custodial Account pursuant to Section 2.05)
or
through Insurance Proceeds (respecting which it shall have similar
priority).
Servicer
shall charge off a second lien Mortgage Loan in accordance with the charge
off
policy as directed by the Owner. In the event a second lien Mortgage Loan is
not
charged-off, Servicer shall proceed with a Foreclosure Commencement on such
Mortgage Loan. As it relates to any Charged-Off Mortgage Loan, should Servicer
determine that any amounts charged-off can be recovered, Servicer shall pursue
the recovery of such amounts and will be entitled to the recovery fee specified
in the related Term Sheet. As it relates to any Charged-Off Mortgage Loan,
Servicer will be reimbursed for all Servicing Advances six months after date
on
which the second lien Mortgage Loans is charged-off. Should Servicer determine
that any amounts charged-off can be recovered, Servicer shall pursue recovery
of
such amounts and Servicer will be entitled to the recovery fee specified in
the
related Term Sheet, from the amounts collected.
-16-
If
requested by Owner, and provided that a mutually acceptable system access
agreement is executed by the parties, the Servicer shall provide the Owner
with
access to its online mortgage loan servicing data system (the “Data System”)
during business hours (generally, Monday through Friday, between 7 a.m. and
9
p.m. EST, and Saturday between 8 a.m. and 2 p.m. EST) with respect to the
Mortgage Loans. Owner shall be responsible for all costs associated with such
access.
The
Servicer acknowledges and agrees that it shall take and initiate any legal
actions with respect to any Mortgage Loans and REO Properties, including,
without limitation, any foreclosure actions, acceptance of deeds-in-lieu of
foreclosure, and any collection actions with respect to any Mortgage Loans
or
REO Properties on behalf of the Owner, but only in the name of the Servicer
and
without reference to the Owner. Except as otherwise required by law or with
the
consent of the Owner, under no circumstances shall any such action be taken
in
the name of, or with any reference to, the Owner. The Servicer shall provide
prior written notice to the Owner if the Servicer is required by applicable
law
to take any legal actions with respect to the Mortgage Loan or REO Properties
in
the name of, or with reference to, the Owner. Owner agrees to provide all the
documentation, appropriately recorded, if applicable, necessary for Servicer
to
initiate legal actions in its own name. Owner agrees to reimburse Servicer
for
any costs or expenses associated with assigning Mortgage Loans to Servicer
or
MERS as the case may be.
Notwithstanding
anything to the contrary contained herein, (a) all actions must be approved
by
the Owner relating to any Mortgaged Property that is determined to be
contaminated by hazardous or toxic substances or wastes and (b) in connection
with a foreclosure, in the event the Servicer has reasonable cause to believe
that a Mortgaged Property is contaminated by hazardous or toxic substances
or
wastes, or if the Owner otherwise requests an environmental inspection or review
of such Mortgaged Property to be conducted by a qualified inspector the Servicer
shall cause the Mortgaged Property to be so inspected at the Owner’s expense.
Upon completion of the inspection, the Servicer shall promptly provide the
Owner
with a written report of the environmental inspection.
Notwithstanding
anything to the contrary contained herein, after reviewing the environmental
inspection report, the Servicer shall in accordance with Accepted Servicing
Practices proceed with respect to the Mortgaged Property; provided, that
Servicer may determine in its sole discretion that it will not proceed with
a
foreclosure or acceptance of a deed in lieu of foreclosure with respect to
a
Mortgaged Property that has been determined to be contaminated by hazardous
or
toxic substances or wastes and with respect to which Servicer would be expected
to take title in its own name. In the event (a) the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes and (b) the Owner directs the Servicer to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer
shall be reimbursed for all reasonable costs associated with such foreclosure
or
acceptance of a deed in lieu of foreclosure and any related environmental clean
up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse the Servicer, the
Servicer shall be entitled to be reimbursed from amounts in the Custodial
Account pursuant to Section 2.05 hereof. In the event the Owner directs the
Servicer not to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, the Servicer shall be reimbursed for all Servicing Advances made
with respect to the related Mortgaged Property from the Custodial Account
pursuant to Section 2.05 hereof.
-17-
With
respect to any Mortgage Loan that is collateralized by a Mortgaged Property
and
the Servicer is not proceeding to liquidation as a result of environmental
contamination, the Servicer shall be entitled to be reimbursed for its Servicing
Advances from amounts in the Custodial Account pursuant to Section 2.05
hereof.
Section
2.03 Collection
of Mortgage Loan Payments.
Following
the date of this Agreement until the date each Mortgage Loan ceases to be
subject to this Agreement, the Servicer shall proceed diligently to collect
all
payments due under each of the related Mortgage Loans when the same shall become
due and payable and shall take reasonable care in ascertaining and estimating
Escrow Payments, to the extent applicable, and all other charges that will
become due and payable with respect to the Mortgage Loans and each related
Mortgaged Property, to the extent that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
Section
2.04 Establishment
of and Deposits to Custodial Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall establish one or more Custodial Accounts, in the form of time
deposit or demand accounts, titled “GMAC Mortgage, LLC, in trust for DB
Structured Products, Inc. re: Fixed and Adjustable Rate Residential Mortgage
Loans”. The Custodial Account shall be established with a Qualified Depository.
Any funds deposited in the Custodial Account shall at all times be fully insured
to the full extent permitted under applicable law and any amounts therein may
be
invested in Eligible Investments for the benefit of the Owner (with any income
earned thereon for the benefit of the Servicer). The Servicer acknowledges
and
agrees that the Servicer shall bear any losses incurred with respect to Eligible
Investments. The amount of any such losses shall be deposited within one (1)
Business Day by the Servicer in the Custodial Account, as appropriate, out
of
the Servicer’s own funds, with no right to reimbursement therefor. The creation
of any Custodial Account shall be evidenced by a certification in the form
of
Exhibit
2
hereto,
in the case of an account established with the Servicer, or by a letter
agreement in the form of Exhibit
3
hereto,
in the case of an account held by a depository other than the Servicer. A copy
of such certification or letter agreement shall be furnished to the Owner prior
to the initial Transfer Date and, upon request, to any subsequent
Owner.
The
Servicer shall deposit in the Custodial Account no more than two (2) Business
Days following receipt thereof, and retain therein, the following collections
received by the Servicer and payments made by the Servicer after the applicable
Transfer Date:
|
(i)
|
all
payments on account of principal on the Mortgage Loans, including
all
Principal Prepayments;
|
|
(ii)
|
all
payments on account of interest on the Mortgage
Loans;
|
-18-
|
(iii)
|
all
Liquidation Proceeds and any amount received with respect to REO
Property;
|
|
(iv)
|
all
Insurance Proceeds including amounts required to be deposited pursuant
to
Section 2.10 (other than proceeds to be held in a suspense account
and
applied to the restoration or repair of the Mortgaged Property or
released
to the Mortgagor in accordance with Accepted Servicing Practices,
the
Mortgage Loan Documents or applicable
law);
|
|
(v)
|
all
Condemnation Proceeds affecting any Mortgaged Property which are
not
applied to the restoration or repair of the Mortgaged Property or
released
to the Mortgagor in accordance with Accepted Servicing Practices,
the
Mortgage Loan Documents or applicable
law;
|
|
(vi)
|
any
amount required to be deposited in the Custodial Account pursuant
to
Section 2.01, 2.09, 2.16, 3.01, or
4.02;
|
|
(vii)
|
any
Prepayment Charges received with respect to any Mortgage Loan;
and
|
|
(viii)
|
any
amounts required to be deposited by the Servicer pursuant to Section
2.11
in connection with the deductible clause in any blanket hazard insurance
policy.
|
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, unless otherwise provided herein, payments in the nature
of
the Servicing Fee and Ancillary Income need not be deposited by the Servicer
into the Custodial Account. Any interest paid on funds deposited in the
Custodial Account by the depository institution or any other non-interest
benefits shall accrue to the benefit of the Servicer and the Servicer shall
be
entitled to retain and withdraw such interest from the Custodial Account
pursuant to Section 2.05 or retain such other benefits, as the case may
be.
Section
2.05 Permitted
Withdrawals From Custodial Account.
Subject
to Section 3.01, the Servicer shall be entitled to withdraw funds from the
Custodial Account for the following purposes:
|
(i)
|
to
make payments to the Owner in the amounts and in the manner provided
Section 3.01;
|
|
(ii)
|
to
pay to itself the Servicing Fee (to the extent the Servicer has not
retained the Servicing Fee);
|
|
(iii)
|
to
reimburse itself for unreimbursed Servicing Advances (except to the
extent
reimbursed pursuant to Section 2.07), any accrued but unpaid Servicing
Fees, the Servicer’s right to reimburse itself pursuant to this subclause
(iii) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and
such
other amounts as may be collected by the Servicer from the Mortgagor
or
otherwise relating to such Mortgage Loan, it being understood that,
in the
case of any such reimbursement, the Servicer’s right thereto shall be
prior to the rights of the Owner;
|
-19-
|
(iv)
|