STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, WELLS FARGO BANK, N.A., as Securities Administrator and U.S. BANK NATIONAL ASSOCIATION, as Trustee TRUST AGREEMENT Dated as of March 1, 2006...
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor,
AURORA
LOAN SERVICES LLC, as Master Servicer,
▇▇▇▇▇
FARGO BANK, N.A.,
as
Securities Administrator
and
U.S.
BANK
NATIONAL ASSOCIATION, as Trustee
____________________________
Dated
as
of March 1, 2006
____________________________
STRUCTURED
ADJUSTABLE RATE MORTGAGE LOAN TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
2006-3
Page
|
ARTICLE
I DEFINITIONS
|
9
|
|
|
Section
1.01.
|
Definitions.
|
9
|
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
46
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
46
|
|
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
46
|
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
50
|
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
52
|
|
Section
2.04.
|
Discovery
of Breach.
|
54
|
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
54
|
|
Section
2.06.
|
Grant
Clause.
|
55
|
|
ARTICLE
III THE CERTIFICATES
|
56
|
|
|
Section
3.01.
|
The
Certificates.
|
56
|
|
Section
3.02.
|
Registration.
|
57
|
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
57
|
|
Section
3.04.
|
Cancellation
of Certificates.
|
63
|
|
Section
3.05.
|
Replacement
of Certificates.
|
64
|
|
Section
3.06.
|
Persons
Deemed Owners.
|
64
|
|
Section
3.07.
|
Temporary
Certificates.
|
64
|
|
Section
3.08.
|
Appointment
of Paying Agent.
|
65
|
|
Section
3.09.
|
Book-Entry
Certificates.
|
65
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
66
|
|
|
Section
4.01.
|
Collection
Account.
|
66
|
|
Section
4.02.
|
Application
of Funds in the Collection Account.
|
68
|
|
Section
4.03.
|
Reports
to Certificateholders.
|
71
|
|
Section
4.04.
|
Certificate
Account.
|
74
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
75
|
|
|
Section
5.01.
|
Distributions
Generally.
|
75
|
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
75
|
|
Section
5.03.
|
Allocation
of Realized Losses.
|
84
|
|
Section
5.04.
|
Advances
by the Master Servicer and the Securities Administrator.
|
87
|
|
Section
5.05.
|
Compensating
Interest Payments.
|
88
|
|
Section
5.06.
|
Funding
Account.
|
88
|
i
|
ARTICLE
VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS
OF
DEFAULT
|
89
|
|
|
Section
6.01.
|
Duties
of Trustee and Securities Administrator.
|
89
|
|
Section
6.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
92
|
|
Section
6.03.
|
Trustee
and Securities Administrator Not Liable for Certificates.
|
93
|
|
Section
6.04.
|
Trustee
and Securities Administrator May Own Certificates.
|
94
|
|
Section
6.05.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
94
|
|
Section
6.06.
|
Resignation
and Removal of Trustee and Securities Administrator.
|
94
|
|
Section
6.07.
|
Successor
Trustee and Successor Securities Administrator.
|
95
|
|
Section
6.08.
|
Merger
or Consolidation of Trustee or Securities Administrator.
|
96
|
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
97
|
|
Section
6.10.
|
Authenticating
Agents.
|
98
|
|
Section
6.11.
|
Indemnification
of Trustee and Securities Administrator.
|
99
|
|
Section
6.12.
|
Fees
and Expenses of Securities Administrator, Trustee and
Custodian.
|
100
|
|
Section
6.13.
|
Collection
of Monies.
|
100
|
|
Section
6.14.
|
Events
of Default; Securities Administrator To Act; Appointment of
Successor.
|
101
|
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
105
|
|
Section
6.16.
|
Waiver
of Defaults.
|
106
|
|
Section
6.17.
|
Notification
to Holders.
|
106
|
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
106
|
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
107
|
|
Section
6.20.
|
Preparation
of Tax Returns and Other Reports.
|
107
|
|
Section
6.21.
|
Reporting
Requirements of the Commission.
|
113
|
|
Section
6.22.
|
No
Merger.
|
113
|
|
Section
6.23.
|
Indemnification
by the Securities Administrator.
|
113
|
|
ARTICLE
VII PURCHASE AND TERMINATION OF THE TRUST FUND
|
114
|
|
|
Section
7.01.
|
Termination
of Trust Fund Upon Repurchase or Liquidation of All Mortgage
Loans.
|
114
|
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund.
|
115
|
|
Section
7.03.
|
Additional
Requirements under the REMIC Provisions.
|
116
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
117
|
|
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
117
|
|
Section
8.02.
|
Access
to List of Holders.
|
118
|
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
118
|
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER
|
119
|
|
|
Section
9.01.
|
Duties
of the Master Servicer.
|
119
|
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions
Insurance
Policy.
|
120
|
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
120
|
|
Section
9.04.
|
Power
to Act; Procedures.
|
120
|
ii
|
Section
9.05.
|
Servicing
Agreements Between the Master Servicer and Servicers; Enforcement
of
Servicers’ Obligations.
|
123
|
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
123
|
|
Section
9.07.
|
Termination
of Servicing Agreements; Successor Servicers.
|
124
|
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
125
|
|
Section
9.09.
|
No
Contractual Relationship Between Servicers and Trustee or
Depositor.
|
125
|
|
Section
9.10.
|
Assumption
of Servicing Agreement by Securities Administrator.
|
125
|
|
Section
9.11.
|
“Due-on-Sale”
Clauses; Assumption Agreements.
|
126
|
|
Section
9.12.
|
Release
of Mortgage Files.
|
126
|
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held
for
Trustee.
|
127
|
|
Section
9.14.
|
Representations
and Warranties of the Master Servicer.
|
129
|
|
Section
9.15.
|
Closing
Certificate and Opinion.
|
131
|
|
Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
131
|
|
Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
132
|
|
Section
9.18.
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
132
|
|
Section
9.19.
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
132
|
|
Section
9.20.
|
Realization
Upon Defaulted Mortgage Loans.
|
133
|
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
133
|
|
Section
9.22.
|
REO
Property.
|
134
|
|
Section
9.23.
|
Notices
to the Depositor and the Securities Administrator
|
135
|
|
Section
9.24.
|
Reports
to the Trustee and the Securities Administrator.
|
135
|
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports..
|
136
|
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing Criteria
.
|
138
|
|
Section
9.27.
|
Merger
or Consolidation.
|
138
|
|
Section
9.28.
|
Resignation
of Master Servicer.
|
138
|
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
139
|
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
139
|
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
140
|
|
ARTICLE
X REMIC ADMINISTRATION
|
141
|
|
|
Section
10.01.
|
REMIC
and Grantor Trust Administration.
|
141
|
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
144
|
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
145
|
|
Section
10.04.
|
REO
Property.
|
145
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
146
|
|
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
146
|
|
Section
11.02.
|
Entire
Agreement.
|
146
|
|
Section
11.03.
|
Amendment.
|
146
|
|
Section
11.04.
|
Voting
Rights.
|
148
|
|
Section
11.05.
|
Provision
of Information.
|
148
|
|
Section
11.06.
|
Governing
Law.
|
148
|
|
Section
11.07.
|
Notices.
|
149
|
|
Section
11.08.
|
Severability
of Provisions.
|
149
|
|
Section
11.09.
|
Indulgences;
No Waivers.
|
149
|
iii
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
149
|
|
Section
11.11.
|
Benefits
of Agreement.
|
149
|
|
Section
11.12.
|
Special
Notices to the Rating Agencies.
|
150
|
|
Section
11.13.
|
Counterparts.
|
150
|
|
Section
11.14.
|
Transfer
of Servicing.
|
151
|
|
Section
11.15.
|
Conflicts.
|
152
|
|
Section
11.16.
|
Compliance
with Regulation AB.
|
152
|
iv
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
Exhibit
C
|
Request
for Release of Documents and
Receipt
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit
(Transferee)
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit
(Transferor)
|
|
Exhibit
E
|
Servicing
Agreements
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
Monthly
Remittance Advice
|
|
Exhibit
J
|
Monthly
Electronic Data Transmission
|
|
Exhibit
K
|
Custodial
Agreements
|
|
Exhibit
L-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
|
Exhibit
L-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security
|
|
Exhibit
M
|
Form
of Certification to be Provided to the Depositor and the Master Servicer
by the Trustee
|
|
Exhibit
N
|
Form
of Assessment of Compliance
|
|
Exhibit
O
|
Applicable
Responsible Party For Items on Assessment of
Compliance
|
|
Exhibit
P-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
P-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
P-3
|
Additional
Form 8-K Disclosure
|
|
Exhibit
P-4
|
Additional
Disclosure Notification
|
|
Exhibit
Q
|
Form
of Back-up ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification
|
|
Exhibit
R
|
Transaction
Parties
|
|
Schedule
A
|
Mortgage
Loan Schedule
|
v
This
TRUST AGREEMENT, dated as of March 1, 2006 (the “Agreement”), is by and among
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”), AURORA LOAN SERVICES LLC, as master servicer (the “Master
Servicer”), ▇▇▇▇▇ FARGO BANK, N.A., a national banking corporation, as
securities administrator (the “Securities Administrator”) and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee (the
“Trustee”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from ▇▇▇▇▇▇ Brothers Holdings (the
“Seller”), and at the Closing Date is the owner of the Mortgage Loans and the
other property being conveyed by it to the Trustee for inclusion in the Trust
Fund. On the Closing Date, the Depositor will acquire the Certificates from
the
Trust Fund as consideration for its transfer to the Trust Fund of the Mortgage
Loans and the other property constituting the Trust Fund. The Depositor has
duly
authorized the execution and delivery of this Agreement to provide for the
conveyance to the Trustee of the Mortgage Loans and the other property
constituting the Trust Fund. All covenants and agreements made by the Depositor,
the Master Servicer, the Securities Administrator and the Trustee herein with
respect to the Mortgage Loans and the other property constituting the Trust
Fund
are for the benefit of the Holders from time to time of the Certificates. The
Depositor, the Securities Administrator and the Master Servicer are entering
into this Agreement, and the Trustee is accepting the Trust Fund created hereby,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
As
provided herein, the Trustee shall elect that the Trust Fund (other than the
rights to Prepayment Penalty Amounts or the Funding Account) be treated for
federal income tax purposes as comprising seven real estate mortgage investment
conduits (each a “REMIC” or, in the alternative, REMIC I-1, REMIC I-2, REMIC
I-3, REMIC II-1 and REMIC II-2). As
is
described in Section 10.01 hereof, the Trust Fund will also be treated for
federal income tax purposes as including six grantor trusts.
Group
I REMICs
REMIC
I-1
REMIC
I-1
shall hold as its assets all rights related to Mortgage Group I (other than
rights to Prepayment Penalty Amounts or the Funding Account).
Each
of
the REMIC I-1 Interests set forth below (other than the Class LTI1-R Interest)
is referred to herein as a REMIC I-1 Regular Interest and is hereby designated
as a regular interest in REMIC I-1. The Class LTI1-R Interest is hereby
designated as the sole class of residual interest in REMIC I-1.
The
following table specifies terms for each class of REMIC I-1
Interests:
|
REMIC
I-1 Class
Designation
|
Interest
Rate
|
Initial
Class or
Principal
Amount
|
Related
Pool or
Pools
|
|||
|
Class
LTI1-1A
|
(1)
|
$87,481.8744
|
Pool
1
|
|||
|
Class
LTI1-1B
|
(2)
|
$1,267,722.8744
|
Pool
1
|
|||
|
Class
LTI1-2A
|
(1)
|
$52,520.4982
|
Pool
2
|
|||
|
Class
LTI1-2B
|
(3)
|
$761,060.4982
|
Pool
2
|
|||
|
Class
LTI1-3A
|
(1)
|
$79,532.5272
|
Pool
3
|
|||
|
Class
LTI1-3B
|
(4)
|
$1,152,532.5272
|
Pool
3
|
|||
|
Class
LTI1-Z
|
(1)
|
$314,730,739.1804
|
N/A
|
|||
|
Class
LTI1-R
|
(5)
|
(5)
|
N/A
|
_____________________
|
(1)
|
For
any Distribution Date, the interest rate for these interests shall
be a
per annum rate equal to the weighted average of the Net Mortgage
Rates of
all the Mortgage Loans in Mortgage Group I at the beginning of the
related
Due Period, weighted on the basis of their respective Scheduled Principal
Balances.
|
|
(2)
|
For
any Distribution Date, the interest rate for the Class LTI1-1B Interest
shall be the Net WAC for Pool 1 for such Distribution
Date.
|
|
(3)
|
For
any Distribution Date, the interest rate for the Class LTI1-2B Interest
shall be the Net WAC for Pool 2 for such Distribution
Date.
|
|
(4)
|
For
any Distribution Date, the interest rate for the Class LTI1-3B Interest
shall be the Net WAC for Pool 3 for such Distribution
Date.
|
|
(5)
|
The
Class LTI1-R Interest shall represent the sole class of residual
interest
in REMIC I-1. The Class LTI1-R Interest will not have a principal
amount
or an interest rate. The Class LTI1-R Interest shall be represented
by the
Class R Certificate.
|
Distributions
shall be deemed to be made to the REMIC I-1 Regular Interests first, so as
to
keep the uncertificated principal balance of each REMIC I-1 Regular Interest
ending with the designation “B” equal to 1% of the aggregate Scheduled Principal
Balance of the Mortgage Loans in the related Mortgage Pool; second, to each
REMIC I-1 Regular Interest ending with the designation “A” so that the
uncertificated principal balance of each such REMIC I-1 Regular Interest is
equal to 1% of the excess of (x) the aggregate Scheduled Principal Balance
of
the Mortgage Loans in the related Mortgage Pool over (y) the aggregate Class
Principal Amounts of the Certificate Group related to such Mortgage Pool (except
that if 1% of any such excess is greater than the principal amount of the
corresponding REMIC I-1 Regular Interest ending with the designation “A”, the
least amount of principal shall be distributed to such REMIC I-1 Regular
Interests such that the REMIC I-1 Subordinated Balance Ratio is maintained);
and
finally, any remaining principal to the Class LTI1-Z Interest. Realized Losses
shall be applied after all distributions have been made on each Distribution
Date first, so as to keep the uncertificated principal balance of each REMIC
I-1
Regular Interest ending with the designation “B” equal to 1% of the aggregate
Scheduled Principal Balance of the Mortgage Loans in the related Mortgage Pool;
second, to each REMIC I-1 Regular Interest ending with the designation “A” so
that the uncertificated principal balance of each such REMIC I-1 Regular
Interest is equal to 1% of the excess of (x) the aggregate Scheduled Principal
Balance of the Mortgage Loans in the related Mortgage Pool over (y) the
aggregate Class Principal Amounts of the Certificate Group related to such
Mortgage Pool (except that if 1% of any such excess is greater than the
principal amount of the corresponding REMIC I-1 Regular Interest ending with
the
designation “A”, the least amount of Realized Losses shall be allocated to such
REMIC I-1 Regular Interests such that the REMIC I-1 Subordinated Balance Ratio
is maintained); and third, the remaining Realized Losses shall be allocated
to
the Class LTI1-Z Interest. All computations with respect to any REMIC I-1
Interest shall be taken out to eight decimal places.
2
If
on any
Distribution Date there is an increase in the Certificate Principal Amount
of
any Class of Group I Certificates as a result of the proviso in the definition
of Certificate Principal Amount, then, prior to distributions of principal
and
allocations of losses on such Distribution Date with respect to REMIC I-1,
there
shall be a corresponding increase in the principal amount of the REMIC I-1
Regular Interests, with such increase allocated among the REMIC I-1 Regular
Interests as follows: (i) first, to each REMIC I-1 Regular Interest ending
with
the designation “B” so as to keep the uncertificated principal balance of such
REMIC I-1 Regular Interest equal to 1% of the aggregate Scheduled Principal
Balance of the Mortgage Loans in the related Mortgage Pool, (ii) second, to
each
REMIC I-1 Regular Interest ending with the designation “A”, so that the
uncertificated principal balance of each such REMIC I-1 Regular Interest is
as
close as possible to (but does not exceed) 1% of the excess of (x) the aggregate
Scheduled Principal balance of the Mortgage Loans in the related Mortgage Pool
over (y) the aggregate Class Principal Amounts of the Senior Certificates of
the
Certificate Group related to such Mortgage Pool; provided, however, that (a)
the
REMIC I-1 Subordinated Balance Ratio is maintained and (b) amounts allocated
to
any REMIC I-1 Regular Interest pursuant to this clause (ii) shall not exceed
the
amount of any previous realized losses allocated to such REMIC I-1 Regular
Interest not previously offset by distributions or increases in the principal
amount of such REMIC I-1 Regular Interest and (iii) finally, all remaining
increases are allocated to the Class LTI1-Z Interest.
REMIC
I-2
REMIC
I-2
shall hold as assets the several classes of uncertificated REMIC I-1 Regular
Interests.
Each
of
the REMIC I-2 Interests set forth below (other than the Class LTI2-R Interest)
is referred to herein as a REMIC I-2 Regular Interest and is hereby designated
as a regular interest in REMIC I-2. The Class LTI2-R Interest is hereby
designated as the sole class of residual interest in REMIC I-2.
The
following table specifies the class designation, interest rate, principal amount
and Classes of Corresponding Certificates for each class of REMIC I-2
Interests:
3
|
REMIC
I-2
Class
Designation
|
Initial
Balance
|
Pass-Through
Rate
|
Corresponding
Certificates
or
REMIC I-3 Interests
|
|
LTI2-1R
|
$100.00
|
(1)
|
R
|
|
LTI2-1A1
|
$109,277,000.00
|
(1)
|
1-A1
|
|
LTI2-1A2
|
$8,747,000.00
|
(1)
|
1-A2
|
|
LTI2-2A1
|
$65,603,000.00
|
(2)
|
2-A1
|
|
LTI2-2A2
|
$5,251,000.00
|
(2)
|
2-A2
|
|
LTI2-3A1A2
|
$99,348,000.00
|
(3)
|
3-A1,
3-A2, 3-AX
|
|
LTI2-3A3
|
$7,952,000
|
(3)
|
3-A3
|
|
LTI2-B1I
|
$10,975,000.00
|
(4)
|
B1-I
|
|
LTI2-B2I
|
$3,658,000.00
|
(4)
|
B2-I
|
|
LTI2-B3I
|
$2,704,000.00
|
(4)
|
B3-I
|
|
LTI2-B4I
|
$636,000.00
|
(4)
|
B4-I
|
|
LTI2-B5I
|
$1,272,000.00
|
(4)
|
B5-I
|
|
LTI2-B6I
|
$1,431,000.00
|
(4)
|
B6-I
|
|
LTI2-B7I
|
$1,277,489.98
|
(4)
|
B7-I
|
|
LTI2-R
|
(5)
|
(5)
|
N/A
|
_____________________
|
(1)
|
For
any Distribution Date, the interest rate for the Class LTI2-1R Interest,
Class LTI2-1A1 Interest and the Class LTI2-1A2 Interest shall be
a per
annum rate equal to the Net WAC for Pool 1 for such Distribution
Date.
|
|
(2)
|
For
any Distribution Date, the interest rate for the Class LTI2-2A1 Interest
and the Class LTI2-2A2 Interest shall be a per annum rate equal to
the Net
WAC for Pool 2 for such Distribution
Date.
|
|
(3)
|
For
any Distribution Date, the interest rate for the Class LTI2-3A1A2
Interest
and the Class LTI2-3A3 Interest shall be a per annum rate equal to
the Net
WAC for Pool 3 for such Distribution
Date.
|
|
(4)
|
For
any Distribution Date, the interest rate for each of the Class LTI2-B1I,
Class LTI2-B2I, Class LTI2-B3I, Class LTI2-B4I, Class LTI2-B5I, Class
LTI2-B6I and Class LTI2-B7I Interests shall be a per annum rate equal
to
the Pool 1-3 Underlying Subordinate Rate for such Distribution
Date.
|
|
(5)
|
The
Class LTI2-R Interest shall represent the sole class of residual
interest
in REMIC I-2. The Class LTI2-R Interest will not have a principal
amount
or an interest rate. The Class LTI2-R Interest shall be represented
by the
Class R Certificate.
|
Principal
and interest shall be payable to, and shortfalls, losses and prepayments are
allocable to, the REMIC I-2 Regular Interests as such amounts are payable and
allocable to the Corresponding Certificates or REMIC I-3 Interests.
Notwithstanding the preceding sentence, (i) the first $0.98 of losses with
respect to principal on the Mortgage Loans in Mortgage Group I shall be
allocated to the Class LTI2-B7I Interest and (ii) immediately preceding any
payment to the Class R Certificate pursuant to Section 5.02(e) attributable
to
principal received with respect to any Mortgage Loan in Mortgage Group I, a
payment shall be treated as made to the Class LTI2-B7I Interest in reduction
of
the principal balance thereof, if any, to zero.
If
on any
Distribution Date there is an increase in the Certificate Principal Amount
of
any Class of Group I Certificates as a result of the proviso in the definition
of Certificate Principal Amount, then there shall be a corresponding increase
in
the principal amount of the corresponding REMIC I-2 Regular
Interest.
4
REMIC
I-3
REMIC
I-3
shall hold as its assets the several classes of uncertificated REMIC I-2 Regular
Interests.
Each
of
the Group I Certificates is referred to herein as a REMIC I-3 Regular Interest
and is hereby designated as a regular interest in REMIC I-3. The Class LTI3-R
Interest is hereby designated as the sole class of residual interest in REMIC
I-3. The Class LTI3-R Interest shall be represented by the Class R Certificate.
The entitlement of the Class R Certificate to payments of principal and interest
shall be attributable to its representation of the Class LTI3-R
Interest.
The
REMIC
I-3 Regular Interests and the Class LTI3-R Interest are referred to herein
as
the REMIC I-3 Interests.
Solely
for the purposes of the REMIC Provisions, the Class 3-AX Certificates shall
represent a “specified portion” of the interest accrued on the Class LTI2-3A1A2
Interest for each Distribution Date through the Distribution Date in February
2013. Such “specified portion” shall equal all interest accruing on the Class
LTI2-3A1A2 Interest in excess of the interest accruing thereon at a per annum
rate equal to 5.75%.
Group
II REMICs
REMIC
II-1
REMIC
II-1 shall hold as its assets all rights related to Mortgage Group II (other
than rights to Prepayment Penalty Amounts or the Funding Account).
Each
of
the REMIC II-1 Interests set forth below (other than the Class LTII1-R Interest)
is referred to herein as a REMIC II-1 Regular Interest and is hereby designated
as a regular interest in REMIC II-1. The Class LTII1-R Interest is hereby
designated as the sole class of residual interest in REMIC II-1.
The
following table specifies the class designation, interest rate, principal amount
and Classes of Corresponding Certificates for each class of REMIC II-1
Interests:
5
|
REMIC
II-1
Class
Designation
|
Initial
Balance
|
Pass-Through
Rate
|
Corresponding
Certificates
or
REMIC II-2 Interests
|
|
LTII1-4A
|
$487,319,000.00
|
(1)
|
4-A,
4-AX
|
|
LTII1-B1II
|
$11,285,000.00
|
(2)
|
B1-II
|
|
LTII1-B2II
|
$5,129,000.00
|
(2)
|
B2-II
|
|
LTII1-B3II
|
$2,821,000.00
|
(2)
|
B3-II
|
|
LTII1-B4II
|
$769,000.00
|
(2)
|
B4-II
|
|
LTII1-B5II
|
$2,051,000.00
|
(2)
|
B5-II
|
|
LTII1-B6II
|
$2,051,000.00
|
(2)
|
B6-II
|
|
LTII1-B7II
|
$1,543,092.22
|
(2)
|
B7-II
|
|
LTII1-R
|
(3)
|
(3)
|
N/A
|
__________________
|
(1)
|
For
any Distribution Date, the interest rate for the Class LTII1-4A Interest
shall be a per annum rate equal to the Net WAC for Pool 4 for such
Distribution Date.
|
|
(2)
|
For
any Distribution Date, the interest rate for each of the Class LTII1-B1II,
Class LTII1-B2II, Class LTII1-B3II, Class LTII1-B4II, Class LTII1-B5II,
Class LTII1-B6II and Class LTII1-B7II Interests shall be a per annum
rate
equal to the Pool 4 Underlying Subordinate Rate for such Distribution
Date.
|
|
(3)
|
The
Class LTII1-R Interest shall represent the sole class of residual
interest
in REMIC II-1. The Class LTII1-R Interest will not have a principal
amount
or an interest rate. The Class LTII1-R Interest shall be represented
by
the Class R Certificate.
|
Principal
and interest shall be payable to, and shortfalls, losses and prepayments are
allocable to, the REMIC II-1 Regular Interests as such amounts are payable
and
allocable to the Corresponding Certificates or REMIC II-2 Interests.
Notwithstanding the preceding sentence, (i) the first $0.22 of losses with
respect to principal on the Mortgage Loans in Mortgage Group II shall be
allocated to the Class LTII1-B7II Interest and (ii) immediately preceding any
payment to the Class R Certificate pursuant to Section 5.02(e) attributable
to
principal received with respect to any Mortgage Loan in Mortgage Group II,
a
payment shall be treated as made to the Class LTII1-B7II Interest in reduction
of the principal balance thereof, if any, to zero.
If
on any
Distribution Date there is an increase in the Certificate Principal Amount
of
any Class of Group II Certificates as a result of the proviso in the definition
of Certificate Principal Amount, then there shall be a corresponding increase
in
the principal amount of the corresponding REMIC II-1 Regular
Interest.
REMIC
II-2
REMIC
II-2 shall hold as its assets the several classes of uncertificated REMIC II-1
Regular Interests.
Each
of
the Group II Certificates is referred to herein as a REMIC II-2 Regular Interest
and is hereby designated as a regular interest in REMIC II-2. The Class LTII2-R
Interest is hereby designated as the sole class of residual interest in REMIC
II-2. The Class LTII2-R Interest shall be represented by the Class R
Certificate. The Class LTII2-R Interest shall not have a principal amount or
an
interest rate.
6
The
REMIC
II-2 Regular Interests and the Class LTII2-R Interest are referred to herein
as
the REMIC II-2 Interests.
Solely
for the purposes of the REMIC Provisions, the Class 4-AX Certificates shall
represent a “specified portion” of the interest accrued on the Class LTII1-4A
Interest for each Distribution Date through the Distribution Date in February
2016. Such “specified portion” shall equal all interest accruing on the Class
LTII1-4A Interest in excess of the interest accruing thereon at a per annum
rate
equal to 6.00%.
The
Certificates
The
following table specifies the Class designation, Certificate Interest Rate,
initial Class Principal Amount or Class Notional Amount, and minimum
denomination (by dollar amount or Percentage Interest) for each Class of
Certificates representing the interests in the Trust Fund created
hereunder.
7
|
Class
Designation
|
Certificate
Interest
Rate
|
Initial
Class
Principal
Amount
or
Class
Notional
Amount
|
Minimum
Denomination
|
|
Class
1-A1
|
(1)
|
$109,277,000
|
$25,000
|
|
Class
1-A2
|
(1)
|
$8,747,000
|
$25,000
|
|
Class
2-A1
|
(2)
|
$65,603,000
|
$25,000
|
|
Class
2-A2
|
(2)
|
$5,251,000
|
$25,000
|
|
Class
3-A1
|
(3)
|
$79,479,000
|
$25,000
|
|
Class
3-A2
|
(3)
|
$19,869,000
|
$25,000
|
|
Class
3-A3
|
(4)
|
$7,952,000
|
$25,000
|
|
Class
3-AX
|
6.00%(5)
|
$6,646,948
|
$1,000,000
|
|
Class
4-A
|
(6)
|
$487,319,000
|
$25,000
|
|
Class
4-AX
|
6.00%(7)
|
$11,128,728
|
$1,000,000
|
|
Class
B1-I
|
(8)
|
$10,975,000
|
$100,000
|
|
Class
B2-I
|
(8)
|
$3,658,000
|
$100,000
|
|
Class
B3-I
|
(8)
|
$2,704,000
|
$100,000
|
|
Class
B4-I
|
(8)
|
$636,000
|
$100,000
|
|
Class
B5-I
|
(8)
|
$1,272,000
|
$250,000
|
|
Class
B6-I
|
(8)
|
$1,431,000
|
$250,000
|
|
Class
B7-I
|
(8)
|
$1,277,489
|
$250,000
|
|
Class
B1-II
|
(9)
|
$11,285,000
|
$100,000
|
|
Class
B2-II
|
(9)
|
$5,129,000
|
$100,000
|
|
Class
B3-II
|
(9)
|
$2,821,000
|
$100,000
|
|
Class
B4-II
|
(9)
|
$769,000
|
$100,000
|
|
Class
B5-II
|
(9)
|
$2,051,000
|
$250,000
|
|
Class
B6-II
|
(9)
|
$2,051,000
|
$250,000
|
|
Class
B7-II
|
(9)
|
$1,543,092
|
$250,000
|
|
Class
R
|
(1)
|
$100
|
$100
|
|
Class
P-I
|
(10)
|
(10)
|
25%
|
|
Class
P-II
|
(11)
|
(11)
|
25%
|
___________________________
|
(1)
|
For
any Distribution Date, the Certificate Interest Rate on the Class
R, Class
1-A1 and Class 1-A2 Certificates shall be a per annum rate equal
to the
Net WAC for Pool 1 for such Distribution
Date.
|
|
(2)
|
For
any Distribution Date, the Certificate Interest Rate on the Class
2-A1 and
Class 2-A2 Certificates shall be a per annum rate equal to the Net
WAC for
Pool 2 for such Distribution Date.
|
|
(3)
|
For
any Distribution Date on or prior to the Distribution Date in February
2013, the Certificate Interest Rate on the Class 3-A1 and Class 3-A2
Certificates shall be a per annum rate equal to the lesser of (i)
5.75% or
(ii) the Net WAC for Pool 3 for such Distribution Date. Beginning
with the
Distribution Date in March 2013, the Certificate Interest Rate on
the
Class 3-A1 and Class 3-A2 Certificates shall be a per annum rate
equal to
the Net WAC for Pool 3 for such Distribution
Date.
|
|
(4)
|
For
any Distribution Date, the Certificate Interest Rate on the Class
3-A3
Certificates shall be a per annum rate equal to the Net WAC for Pool
3 for
such Distribution Date.
|
|
(5)
|
For
any Distribution Date on or prior to the Distribution Date in February
2013, the Certificate Interest Rate on the Class 3-AX Certificates
shall
be a per annum rate equal to 6.00%. Thereafter, the Class 3-AX
Certificates will not accrue interest and will not be entitled to
any
distributions related to subsequent Distribution Dates. For any
Distribution Date, the Class Notional Amount of the Class 3-AX
Certificates will be equal to the product of (i) a fraction, the
numerator
of which is the excess, if any, of (1) the Net WAC for Pool 3 for
the
related Distribution Date over (2) 5.75%, and the denominator of
which is
6.00% and (ii) the aggregate Class Principal Amount of the Class
3-A1 and
Class 3-A2 Certificates immediately prior to such Distribution Date.
The
initial Class Notional Amount of the Class 3-AX Certificates is
approximately $6,646,948.
|
8
|
(6)
|
For
any Distribution Date on or prior to the Distribution Date in February
2016, the Certificate Interest Rate on the Class 4-A Certificates
shall be
a per annum rate equal to the lesser of (i) 6.00% or (ii) the Net
WAC for
Pool 4 for such Distribution Date. Beginning with the Distribution
Date in
March 2016, the Certificate Interest Rate on the Class 4-A Certificates
shall be a per annum rate equal to the Net WAC for Pool 4 for such
Distribution Date.
|
|
(7)
|
For
any Distribution Date on or prior to the Distribution Date in February
2016, the Certificate Interest Rate on the Class 4-AX Certificates
shall
be a per annum rate equal to 6.00%. Thereafter, the Class 4-AX
Certificates will not accrue interest and will not be entitled to
any
distributions related to subsequent Distribution Dates. For any
Distribution Date, the Class Notional Amount of the Class 4-AX
Certificates will be equal to the product of (i) a fraction, the
numerator
of which is the excess, if any, of (1) the Net WAC for Pool 4 for
the
related Distribution Date over (2) 6.00%, and the denominator of
which is
6.00% and (ii) the Class Principal Amount of the Class 4-A Certificates
immediately prior to such Distribution Date. The initial Class Notional
Amount of the Class 4-AX Certificates is approximately
$11,128,728.
|
|
(8)
|
For
any Distribution Date, the Certificate Interest Rate for the Class
B1-I,
Class B2-I, Class B3-I, Class B4-I, Class B5-I, Class B6-I and Class
B7-I
Certificates shall be equal to an annual rate equal to the Pool 1-3
Underlying Subordinate Rate.
|
|
(9)
|
For
any Distribution Date, the Certificate Interest Rate for the Class
B1-II,
Class B2-II, Class B3-II, Class B4-II, Class B5-II, Class B6-II and
Class
B7-II Certificates shall be equal to an annual rate equal to the
Pool 4
Underlying Subordinate Rate.
|
|
(10)
|
The
Class P-I Certificates will be entitled to receive Prepayment Penalty
Amounts paid by borrowers upon voluntary full or partial prepayment
of the
Mortgage Loans in Pool 1,
Pool 2 and Pool 3.
|
|
(11)
|
The
Class P-II Certificates will be entitled to receive Prepayment Penalty
Amounts paid by borrowers upon voluntary full or partial prepayment
of the
Mortgage Loans in Pool 4.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$831,099,682.20.
For
purposes hereof, each pool of Mortgage Loans constitutes a fully separate and
distinct sub-trust.
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Securities Administrator and the Trustee hereby agree
as
follows:
ARTICLE
I
DEFINITIONS
|
Section
1.01.
|
Definitions.
|
The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
9
Accepted
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 Securities Administrator (as successor Master Servicer)
or the Master Servicer or (y) as provided in the applicable Servicing Agreement,
to the extent applicable to the related Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accretion
Directed Certificate:
Not
applicable.
Accretion
Termination Date:
Not
applicable.
Accrual
Amount:
Not
applicable.
Accrual
Certificate:
Not
applicable.
Accrual
Component:
Not
applicable.
Accrual
Period:
With
respect to any Distribution Date and any Class of Certificates, REMIC I-1
Interests, REMIC I-2 Interests, REMIC I-3 Interests, REMIC II-1 Interests and
REMIC II-2 Interests, the calendar month immediately preceding the month in
which such Distribution Date occurs. All calculations of interest will be made
on the basis of a 360 day year and twelve 30 day months.
Accrued
Certificate Interest:
As to
any Class of Certificates and any Distribution Date, the amount of interest
accrued at its Interest Rate during the related Accrual Period on (in the case
of each Class 3-AX and Class 4-AX Certificates) the related Class Principal
Amount immediately prior to such Distribution Date or, in the case of the Class
3-AX and Class 4-AX Certificates, the related Class Notional Amount for such
Distribution Date, as reduced by such Class’s share of the interest portion of
(i) any Excess Losses for the related Mortgage Pool or Mortgage Pools for such
Distribution Date and (ii) any Relief Act Reduction for the related Mortgage
Pool or Mortgage Pools for such Distribution Date, in each case allocable among
the Senior Certificates of the related Certificate Group and the related
Subordinate Certificates proportionately based on (1) in the case of the Senior
Certificates, the Accrued Certificate Interest otherwise distributable thereon,
and (2) in the case of the Group I Subordinate Certificates and the Group II
Subordinate Certificates interest accrued (at the Underlying Subordinate Rate
for the relevant Mortgage Pool) on their respective Apportioned Principal
Balances. All calculations of interest on each Class of Certificates and each
of
the REMIC I-1 Interests, REMIC I-2 Interests, REMIC I-3 Interests, REMIC II-1
Interests and REMIC II-2 Interests shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. The interest shall accrue during the
related Accrual Period.
Act:
As
defined in Section 3.03(c).
Additional
Collateral:
None.
Additional
Collateral Servicing Agreement:
None.
10
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Additional
Servicer:
Each
affiliate of each Servicer that Services any of the Mortgage Loans and each
Person who is not an affiliate of the any Servicer, who Services 10% or more
of
the Mortgage Loans.
Advance:
An
advance of the aggregate of payments of principal and interest, the Master
Servicing Fee and the applicable Servicing Fee on one or more Mortgage Loans
that were due on the Due Date in the related Due Period and not received as
of
the close of business on the related Determination Date, required to be made
by
or on behalf of the Master Servicer and the related Servicer (or by the
Securities Administrator solely in its capacity as successor Master Servicer
in
accordance with Section 6.14) pursuant to Section 5.04.
Adverse
REMIC Event:
Either
(i) loss of status as a REMIC, within the meaning of Section 860D of the Code,
for any group of assets identified as a REMIC in the Preliminary Statement
to
this Agreement, or (ii) imposition of any tax, including the tax imposed under
Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section
860G(d) on certain contributions to a REMIC, on any REMIC created hereunder
to
the extent such tax would be payable from assets held as part of the Trust
Fund.
Affiliate:
With
respect to any 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.
Aggregate
Master Servicing Compensation:
Not
applicable.
Aggregate
Principal Balance:
The
aggregate of the Scheduled Principal Balances for all Mortgage Loans at any
date
of determination.
Aggregate
Subordinate Percentage:
With
respect to any Distribution Date, the sum of the Class Principal Amounts of
the
Group I Subordinate Certificates or the Group II Subordinate Certificates,
as
applicable, immediately prior to such date divided by the sum of the Pool
Balances for all of the Mortgage Pools in the related Mortgage Group for the
immediately preceding Distribution Date (or, in the case of the first
Distribution Date, the Cut-off Date).
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
AP
Percentage:
Not
applicable.
AP
Principal Distribution Amount:
Not
applicable.
11
Applicants:
As
defined in Section 8.02(b).
Apportioned
Principal Balance:
As to
any Class of Group I Subordinate Certificates or Group II Subordinate
Certificates and any Distribution Date, the Class Principal Amount of such
Class
immediately prior to such Distribution Date multiplied by a fraction, the
numerator of which is the applicable Group Subordinate Amount for such date
and
the denominator of which is the sum of the Group Subordinate Amounts for each
Mortgage Pool in the related Mortgage Group for such date.
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assessment
of Compliance:
As
defined in Section 6.21(a).
Associated
Mortgage Loan:
Not
applicable.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Trustee, which assignment, notice of transfer or equivalent instrument may
be in
the form of one or more blanket assignments covering the Mortgage Loans secured
by Mortgaged Properties located in the same jurisdiction, if permitted by law;
provided, however, that the Trustee shall not be responsible for determining
whether any such assignment is in recordable form.
Aurora:
Aurora
Loan Services LLC or its successor in interest, in its capacity as a
Servicer.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
Authorized
Officer:
Not
applicable.
Available
Distribution Amount:
As to
each Mortgage Pool and on any Distribution Date, the sum of the following
amounts:
(i) the
total amount of all cash received by the Master Servicer through the Remittance
Date applicable to each Servicer and deposited with the Securities Administrator
by the Master Servicer by the Deposit Date for such Distribution Date on the
Mortgage Loans of such Mortgage Pool (including proceeds of any Insurance Policy
and any other credit support relating to such Mortgage Loans and including
any
Subsequent Recovery), plus all Advances made by the Master Servicer or any
Servicer (or the Securities Administrator, solely in its capacity as successor
Master Servicer) for such Distribution Date and Mortgage Pool, any Compensating
Interest Payment for such date and Mortgage Pool, any amounts received with
respect to any Additional Collateral, if any, or any surety bond, if any,
related thereto and any amounts paid by any Servicer in respect of Prepayment
Interest Shortfalls in respect of the related Mortgage Loans for such date,
but
not including:
12
(A) all
amounts distributed pursuant to Section 5.02 on prior Distribution
Dates;
(B) all
Scheduled Payments of principal and interest collected but due on a date
subsequent to the related Due Period;
(C) all
Principal Prepayments received or identified by the applicable Servicer after
the applicable Prepayment Period (together with any interest payments received
with such prepayments to the extent that they represent the payment of interest
accrued on the related Mortgage Loans for the period subsequent to the
applicable Prepayment Period);
(D) any
other unscheduled collection, including Net Liquidation Proceeds, Subsequent
Recoveries and Insurance Proceeds, received by the Master Servicer after the
applicable Prepayment Period;
(E) all
fees and amounts due or reimbursable to the Master Servicer, the Trustee (or
its
custodian), the Securities Administrator, the Custodian or a Servicer pursuant
to the terms of this Agreement, the applicable Custodial Agreement or the
applicable Servicing Agreement (other than the Securities Administrator Fee)
related specifically to such Mortgage Pool or if applicable to all Mortgage
Pools, then the pro rata portion of any such amounts based on the Pool Balance
of such Mortgage Pool and the Aggregate Principal Balance;
(F) [Reserved];
(G) [Reserved];
(H) Prepayment
Interest Excess, to the extent not offset by Prepayment Interest Shortfalls;
and
(ii) any
other payment made by the Master Servicer, any Servicer, the Securities
Administrator, the Trustee, the Seller, the Depositor, or any other Person
with
respect to such Distribution Date (including the Purchase Price with respect
to
any Mortgage Loan purchased by the Seller, the Depositor or any other
Person).
Back-Up
Certification:
As
defined in Section 6.20(e)(iv).
Balloon
Mortgage Loan:
Not
applicable.
Balloon
Payment:
Not
applicable.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
United States Bankruptcy Code of 1986, as amended, or any other similar state
laws.
13
Bankruptcy
Coverage Termination Date:
As to
any Mortgage Pool, the Distribution Date on which the applicable Bankruptcy
Loss
Limit has been reduced to zero (or less than zero).
Bankruptcy
Loss Limit:
As of
the Cut-off Date, $116,667 for Pools 1 through 3 and $152,895 for Pool 4, which
amounts shall each be reduced from time to time by the amount of Bankruptcy
Losses in the related Pool or Pools that are allocated to the related
Certificates until the applicable Bankruptcy Coverage Termination
Date.
Bankruptcy
Losses:
With
respect to the Mortgage Loans in the related Mortgage Pool, losses that are
incurred as a result of Deficient Valuations and any reduction, in a bankruptcy
proceeding, of the amount of the Scheduled Payment on a Mortgage Loan other
than
as a result of a Deficient Valuation.
Basis
Risk Shortfall Protected Certificate:
Not
applicable.
Basis
Risk Shortfall:
Not
applicable.
Blanket
Mortgage:
Not
applicable.
Book-Entry
Certificates:
Beneficial interests in Certificates designated as “Book-Entry Certificates” in
this Agreement, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 3.09;
provided, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer permitted and Definitive Certificates
are to be issued to Certificate Owners, such Book-Entry Certificates shall
no
longer be “Book-Entry Certificates.” As of the Closing Date, all of the Classes
of Certificates listed in the table in the Preliminary Statement entitled “The
Certificates”, other than the Class R and Class P Certificates, will constitute
Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in Colorado, Minnesota, Maryland, New York or, if other than New York, the
city
in which the Corporate Trust Office of the Trustee is located, or (iii) with
respect to any Remittance Date or any Servicer reporting date, the States
specified in the definition of “Business Day” in the applicable Servicing
Agreement, are authorized or obligated by law or executive order to be
closed.
Certificate:
Any one
of the certificates signed by the Trustee and countersigned by the
Authenticating Agent in substantially the forms attached hereto as Exhibit
A.
Certificate
Account:
The
account maintained by the Securities Administrator in accordance with the
provisions of Section 4.04.
Certificate
Group:
The
Group 1 Certificates (which are related to Pool 1), the Group 2 Certificates
(which are related to Pool 2), the Group 3 Certificates (which are related
to
Pool 3) or the Group 4 Certificates (which are related to Pool 4), as
applicable.
14
Certificate
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate specified or determined as provided in the Preliminary Statement
hereto.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing Agency, or
on
the books of a Person maintaining an account with such Clearing Agency (directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency).
Certificate
Principal Amount:
With
respect to any Certificate other than a Notional Certificate, at the time of
determination, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (plus, in
the
case of any Negative Amortization Certificate, any Deferred Interest allocated
thereto on previous Distribution Dates, and plus, in the case of any Accrual
Certificate, its Percentage Interest of any related Accrual Amount for each
previous Distribution Date), less the amount of all principal distributions
previously made with respect to such Certificate, and all Realized Losses
allocated to such Certificate and, in the case of a Subordinate Certificate,
any
Subordinate Certificate Writedown Amount allocated to such Certificates;
provided,
however, that on any Distribution Date on which a Subsequent Recovery for a
Mortgage Pool is distributed, the Certificate Principal Amount of any Class
of
related Certificates then outstanding for which any Realized Loss or any
Subordinate Certificate Writedown Amount has been applied will be increased,
in
order of seniority, by an amount equal to the lesser of (i) the amount the
Class
of Certificates has been reduced by any Realized Losses or any Subordinate
Certificate Writedown Amount which have not been previously offset by any
Subsequent Recovery pursuant to this proviso and (ii) the total amount of any
Subsequent Recovery for such Mortgage Pool distributed on such date to
Certificateholders (as
reduced (x) by increases in the Certificate Principal Amount of more senior
Classes of Certificates related to such Mortgage Pool on such Distribution
Date
and (y) to reflect a proportionate amount of what would (but for this clause
(y)
have been the increases in the Certificate Principal Amount of Classes of
Certificates related to such Mortgage Pool of equal seniority on such
Distribution Date). For purposes of Article V hereof, unless specifically
provided to the contrary, Certificate Principal Amounts shall be determined
as
of the close of business of the immediately preceding Distribution Date, after
giving effect to all distributions made on such date. Notional Certificates
are
issued without Certificate Principal Amounts.
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
Certification
Parties:
As
defined in Section 6.20(e)(iv).
Certifying
Person:
As
defined in Section 6.20(e)(iv).
Class:
All
Certificates bearing the same class designation, and, in the case of REMIC
I-1,
REMIC I-2, REMIC I-3, REMIC II-1 or REMIC II-2, all interests bearing the same
designation.
Class
AP Certificate:
None.
Class
AP Deferred Amount:
Not
applicable.
15
Class
B Certificate:
Any
Class B1-I, Class B2-I, Class B3-I, Class B4-I, Class B5-I, Class B6-I, Class
B7-I, Class B1-II, Class B2-II, Class B3-II, Class B4-II, Class B5-II, Class
B6-II or Class B7-II Certificate.
Class
Notional Amount:
With
respect to each Class of Notional Certificates the applicable class notional
amount calculated as provided in the Preliminary Statement hereto.
Class
P Certificate:
Any
Class P-I or Class P-II Certificate.
Class
Percentage:
With
respect to each Class of Subordinate Certificates, for each Distribution Date,
the percentage obtained by dividing the Class Principal Amount of such Class
immediately prior to such Distribution Date by the sum of the Class Principal
Amounts of all Certificates related to the same Mortgage Group immediately
prior
to such date.
Class
Principal Amount:
With
respect to each Class of Certificates other than any Class of Notional
Certificates, the aggregate of the Certificate Principal Amounts of all
Certificates of such Class at the date of determination. With respect to each
Class of Notional Certificates and the Class P Certificates, zero.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended. As of the Closing Date, the
Clearing Agency shall be The Depository Trust Company.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking, société anonyme, and any successor thereto.
Closing
Date:
March
31, 2006.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
Commission:
The
Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Distribution Date, an amount equal to the aggregate amount of
any
Prepayment Interest Shortfalls required to be paid by the Servicers with respect
to such Distribution Date. The Master Servicer shall not be responsible to
make
any Compensating Interest Payment.
Component:
Not
applicable.
Component
Certificate:
Not
applicable.
16
Component
Notional Amount:
Not
applicable.
Component
Principal Amount:
Not
applicable.
Component
Writedown Amount:
Not
applicable.
Controlling
Person:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
Conventional
Loan:
Not
applicable.
Converted
Mortgage Loan:
Not
applicable.
Convertible
Mortgage Loan:
Not
applicable.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv) the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi) executed
UCC-3 financing statements (or copies thereof) or other appropriate UCC
financing statements required by state law, evidencing a complete and unbroken
line from the mortgagee to the Trustee with evidence of recording thereon (or
in
a form suitable for recordation).
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
With
respect to the Trustee, the principal corporate trust office of the Trustee
located at Corporate Trust Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: SARM 2006-3, or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders,
the
Depositor, the Master Servicer and the Securities Administrator or the principal
corporate trust office of any successor Trustee. With respect to the Securities
Administrator for purposes of presentment of Certificates for registration
of
transfer, exchange or final payment, ▇▇▇▇▇ Fargo Bank, National Association,
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
SARM
2006-3.
17
Corresponding
Class:
Not
applicable.
Credit
Score:
With
respect to any Mortgage Loan, a numerical assessment of default risk with
respect to the Mortgagor under such Mortgage Loan, determined on the basis
of a
methodology developed by Fair, ▇▇▇▇▇ & Co., Inc.
Credit
Support Depletion Date:
The
Distribution Date on which, after giving effect to all distributions on such
date, the aggregate Certificate Principal Amount of the Group I Subordinate
Certificates or Group II Subordinate Certificates, as applicable, is reduced
to
zero.
Credit
Support Percentage:
As to
any Class of Subordinate Certificates (other than the lowest ranking Class)
and
any Distribution Date, the sum of the Class Percentages of all Classes of
Certificates that rank lower in priority than such Class (without giving effect
to distributions on such date).
Custodial
Agreement:
Each
custodial agreement attached as Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee substantially in the form
thereof.
Custodian:
Each
custodian appointed by the Trustee pursuant to a Custodial Agreement, and any
successor thereto. The initial Custodians are Deutsche Bank Trust Company,
LaSalle Bank National Association, U.S. Bank National Association and ▇▇▇▇▇
Fargo Bank, National Association.
Cut-off
Date:
March
1, 2006.
Cut-off
Date Aggregate Principal Balance:
Not
applicable.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of any
proceeding under Bankruptcy law or any similar proceeding. The principal portion
of Debt Service Reductions will not be allocated in reduction of the Certificate
Principal Amounts of any Certificates.
Deferred
Interest:
None.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
under Bankruptcy law or any similar proceeding.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
18
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefore.
Deposit
Date:
With
respect to each Distribution Date, the Business Day immediately preceding such
Distribution Date.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having its
principal place of business in New York, or its successors in
interest.
Designated
Rate:
Not
applicable.
Determination
Date:
With
respect to each Distribution Date, the Remittance Date immediately preceding
such Distribution Date.
Direct
Obligations:
As
defined in the definition of Eligible Investments.
Discount
Mortgage Loan:
None.
Disqualified
Organization:
Either
(i) the United States, (ii) any state or political subdivision thereof, (iii)
any foreign government, (iv) any international organization, (v) any agency
or
instrumentality of any of the foregoing, (vi) any tax-exempt organization (other
than a cooperative described in section 521 of the Code) which 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, (vii) any organization described
in
section 1381(a)(2)(C) of the Code, (viii) any “electing large partnership”
described in section 775 of the Code, or (ix) any other entity designated as
a
Disqualified Organization by relevant legislation amending the REMIC Provisions
and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception
of
the Federal Home Loan Mortgage Corporation, a majority of its board of directors
is not selected by such governmental unit.
Distribution
Date:
The
25th
day of
each month, or, if such 25th
day is
not a Business Day, the next succeeding Business Day commencing in April
2006.
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
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:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account or accounts the deposits in which are insured by the FDIC to
the
limits established by such corporation, provided that any such deposits not
so
insured shall be maintained in an account at a depository institution or trust
company whose commercial paper or other short term debt obligations (or, in
the
case of a depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other short term debt
or deposit obligations of such holding company or depository institution, as
the
case may be) have been rated by each Rating Agency in its highest short-term
rating category, or (iii) a segregated trust account or accounts (which shall
be
a “special deposit account”) maintained with the Trustee, the Securities
Administrator or any other federal or state chartered depository institution
or
trust company, acting in its fiduciary capacity, in a manner acceptable to
the
Trustee and the Rating Agencies. Eligible Accounts may bear
interest.
19
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee or the Securities Administrator, acting in its respective commercial
capacity) incorporated or organized under the laws of the United States of
America or any state thereof and subject to supervision and examination by
federal or state banking authorities, so long as at the time of investment
or
the contractual commitment providing for such investment the commercial paper
or
other short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company which
is
the principal subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or deposit
institution, as the case may be) have been rated by each Rating Agency in its
highest short-term rating category or one of its two highest long-term rating
categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
GNMA, FNMA or FHLMC with any registered broker/dealer subject to Securities
Investors’ Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest short-term
rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest short-term credit ratings 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 and held
as part of the Trust Fund to exceed 20% of the sum of the Aggregate Principal
Balance and the aggregate principal amount of all Eligible Investments in the
Certificate Account; provided, further, that such securities will not be
Eligible Investments if they are published as being under review with negative
implications from either Rating Agency;
20
(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 ratings;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other demand, money market fund, common trust fund or time deposit or
obligation, or interest-bearing or other security or investment (including
those
managed or advised by the Securities Administrator or an Affiliate thereof),
(A)
rated in the highest rating category by each Rating Agency (if rated by such
Rating Agency) or (B) that would not adversely affect the then current rating
by
either Rating Agency of any of the Certificates and has a short term rating
of
at least “A-1” or its equivalent by each Rating Agency. Such investments in this
subsection (viii) may include money market mutual funds for which the Trustee,
the Securities Administrator, the Master Servicer or an affiliate thereof serves
as an investment advisor, administrator, shareholder servicing agent, and/or
custodian or subcustodian, notwithstanding that (i) any such Person or an
Affiliate thereof charges and collects fees and expenses from such funds for
services rendered, (ii) any such Person or an Affiliate thereof charges and
collects fees and expenses for services rendered pursuant to this Agreement,
and
(iii) services performed for such funds and pursuant to this Agreement may
converge at any time. The Trustee specifically authorizes any such Person or
an
Affiliate thereof to charge and collect from the Trust Fund such fees as are
collected from all investors in such funds for services rendered to such funds
(but not to exceed investment earnings thereon);
provided,
however, that (x) 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 and (y) each such investment must be a “permitted
investment” within the meaning of Section 860G(a)(5) of the Code.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended, and as it may
be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Labor regulations issued pursuant thereto in
temporary or final form.
21
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that would satisfy
the requirements of the Underwriter's Exemption, except, in relevant part,
for
the requirement that the certificates have received a rating at the time of
acquisition that is in one of the three (or four, in the case of a "designated
transaction") highest generic rating categories by at least one of the Rating
Agencies.
ERISA-Restricted
Certificate:
Any
Class P-I, Class P-II, Class B5-I, Class B6-I, Class B7-I, Class B5-II, Class
B6-II or Class B7-II Certificate and any other Certificate, as long as the
acquisition and holding of such Certificate is not covered by and exempt under
the Underwriter's Exemption.
Escrow
Account:
Any
account established and maintained by a Servicer pursuant to the applicable
Servicing Agreement.
Euroclear:
Euroclear S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Excess
Loss:
Any
Bankruptcy Loss, or portion thereof, in excess of the then-applicable Bankruptcy
Loss Limit, any Fraud Loss, or portion thereof, in excess of the then-applicable
Fraud Loss Limit, and any Special Hazard Loss, or portion thereof, in excess
of
the then-applicable Special Hazard Loss Limit.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Extended
Period:
As
defined in Section 10.04(b).
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
FHLMC:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor thereto.
Final
Scheduled Distribution Date:
For the
Certificates (other than the Class 3-AX and Class 4-AX Certificates), the
Distribution Date in April 2036. For the Class 3-AX Certificates, the
Distribution Date in February 2013. For the Class 4-AX Certificates, the
Distribution Date in February 2016.
Financial
Intermediary:
Not
applicable.
Fitch:
Fitch
Ratings, Inc., or any successor in interest.
22
FNMA:
The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Form
8-K Disclosure Information:
As
defined in Section 6.20(f)(i).
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
Fraud
Loss:
Any
Realized Loss on a Liquidated Mortgage Loan sustained by reason of a default
arising from fraud, dishonesty or misrepresentation in connection with the
related Mortgage Loan, as reported by the applicable Servicer to the Master
Servicer.
Fraud
Loss Limit:
With
respect to any Distribution Date (x) prior to the first anniversary of the
Cut-off Date, $6,362,632 for Mortgage Group I, less the aggregate of Fraud
Losses in Mortgage Group I since the Cut-off Date, and (y) from the first
anniversary to the fifth anniversary of the Cut-off Date, an amount equal to
(1)
the lesser of (a) the Fraud Loss Limit as of the most recent anniversary of
the
Cut-off Date and (b) 1.00% of the aggregate principal balance of all the
Mortgage Loans in Mortgage Group I as of the most recent anniversary of the
Cut-off Date less (2) the aggregate of Fraud Losses in Mortgage Group I since
the most recent anniversary of the Cut-off Date. On or after the fifth
anniversary of the Cut-off Date, the Fraud Loss Limit shall be zero. With
respect to any Distribution Date (x) prior to the first anniversary of the
Cut-off Date, approximately $10,259,362 for Mortgage Group II, less the
aggregate of Fraud Losses in Mortgage Group II since the Cut-off Date, (y)
from
the first anniversary to the fifth anniversary of the Cut-off Date, an amount
equal to (1) the lesser of (a) the Fraud Loss Limit as of the most recent
anniversary of the Cut-off Date and (b) 1.00% of the aggregate principal balance
of all the Mortgage Loans in Mortgage Group II as of the most recent anniversary
of the Cut-off Date less (2) the aggregate of Fraud Losses in Mortgage Group
II
since the most recent anniversary of the Cut-off Date. On or after the fifth
anniversary of the Cut-off Date, the Fraud Loss Limit shall be
zero.
Funding
Account:
The
account defined in Section 5.06 herein.
Funding
Amount:
The
amount paid by the Depositor to the Securities Administrator for deposit into
the Funding Account on the Closing Date pursuant to Section 5.06, which amount
is $13,033,435.17. The Funding Amount is calculated as the difference between
the Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date
and
the aggregate Certificate Principal Amount of the Certificates as of the Closing
Date, as adjusted for rounding ($12,967,119.75) plus 30 days accrued interest
on
that amount ($66,315.42). For purposes of distributions to Certificateholders
pursuant to Section 5.06, the Funding Amount with respect to Pool 1 shall equal
a principal amount of $92,000.00 plus thirty (30) days accrued interest on
such
principal amount at the Net WAC for Pool 1 for the first Distribution Date
and
the Funding Amount with respect to Pool 4 shall equal a principal amount of
$12,875,119.75 plus thirty (30) days accrued interest on such principal amount
at the Net WAC for Pool 4 for the first Distribution Date. To the extent that
the total amount on deposit in the Funding Account exceeds the sum of the
Funding Amounts with respect to Pool 1 and Pool 4 described in the preceding
sentence, such excess shall be distributed to the Depositor as described in
Section 5.06.
23
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Grantor
Trust:
Each of
the “grantor trusts” (within the meaning of the Grantor Trust Provisions)
described in Section 10.01 herein.
Grantor
Trust Assets:
Any
Prepayment Penalty Amounts collected with respect to Pool 1, Pool 2, Pool 3
or Pool 4.
Grantor
Trust Provisions:
Subpart
E of Subchapter J of the Code, including Treasury regulation section
301.7701-4(c)(2).
Group
1:
All of
the Group 1 Certificates.
Group
1 Certificate:
Any
Class 1-A1, Class 1-A2 or Class R Certificate. The Group 1 Certificates and
Components are related to Pool 1.
Group
2:
All of
the Group 2 Certificates.
Group
2 Certificate:
Any
Class 2-A1 or Class 2-A2 Certificate. The Group 2 Certificates and Components
are related to Pool 2.
Group
3:
All of
the Group 3 Certificates.
Group
3 Certificate:
Any
Class 3-A1, Class 3-A2, Class 3-A3 or Class 3-AX Certificate. The Group 3
Certificates are related to Pool 3.
Group
4:
All of
the Group 4 Certificates.
Group
4 Certificate:
Any
Class 4-A or Class 4-AX Certificate. The Group 4 Certificates are related to
Pool 4.
Group
I Certificate:
Any of
the Class 1-A1, Class 1-A2, Class 2-A1, Class 2-A2, Class 3-A1, Class 3-A2,
Class 3-A3, Class 3-AX, Class B1-I, Class B2-I, Class B3-I, Class B4-I, Class
B5-I, Class B6-I, Class B7-I or Class R Certificates.
Group
I Subordinate Certificate:
Any of
the Class B1-I, Class B2-I, Class B3-I, Class B4-I, Class B5-I, Class B6-I,
Class B7-I Certificates.
Group
II Certificate:
Any of
the Class 4-A, Class 4-AX, Class B1-II, Class B2-II, Class B3-II, Class B4-II,
Class B5-II, Class B6-II or Class B7-II Certificates.
Group
II Subordinate Certificate:
Any of
the Class B1-II, Class B2-II, Class B3-II, Class B4-II, Class B5-II, Class
B6-II
or Class B7-II Certificates.
24
Group
Subordinate Amount:
With
respect to any Mortgage Pool and any Distribution Date, the excess, if any,
of
the Pool Balance of such Mortgage Pool for the immediately preceding
Distribution Date (or in the case of the first Distribution Date, the aggregate
Scheduled Principal Balance of the Mortgage Loans in such Mortgage Pool as
of
the Cut-off Date) over the sum of the aggregate of the Certificate Principal
Amounts of the Senior Certificates of the related Certificate Group immediately
prior to the related Distribution Date.
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, any Servicer, or any
Affiliate thereof shall be deemed not to be outstanding in determining whether
the requisite percentage necessary to effect any such consent has been obtained,
except that, in determining whether the Trustee shall be protected in relying
upon any such consent, only Certificates which a Responsible Officer of the
Trustee knows to be so owned shall be disregarded. The Trustee may request
and
conclusively rely on certifications by the Depositor, the Master Servicer or
any
Servicer in determining whether any Certificates are registered to an Affiliate
of the Depositor, the Master Servicer or such Servicer,
respectively.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Securities and Exchange Commission’s Regulation
S-X. When used with respect to any other Person, a Person who (a) is in fact
independent of another specified Person and any Affiliate of such other Person,
(b) does not have any material direct financial interest in such other Person
or
any Affiliate of such other Person, and (c) is not connected with such other
Person or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar
functions.
Initial
LIBOR Rate:
Not
applicable.
Initial
MTA Rate:
Not
applicable.
Initial
Net Mortgage Rate:
Not
applicable.
Initial
Senior Enhancement Percentage:
6.90%
for Mortgage Group I and 5.00% for Mortgage Group II.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy and any standard hazard insurance policy,
flood insurance policy, earthquake insurance policy or title insurance policy
relating to the Mortgage Loans or the Mortgaged Properties, to be in effect
as
of the Closing Date or thereafter during the term of this
Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to cover
expenses incurred by or on behalf of the applicable Servicer in connection
with
procuring such proceeds, (ii) to be applied to restoration or repair of the
related Mortgaged Property or (iii) required to be paid over to the Mortgagor
pursuant to law or the related Mortgage Note.
25
Interest
Distribution Amount:
Not
applicable.
Interest
Shortfall:
With
respect to any Class of Certificates and any Distribution Date, any Accrued
Certificate Interest not distributed (or added to principal) with respect to
any
previous Distribution Date, other than any Net Prepayment Interest
Shortfalls.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notice of transfer or
equivalent instrument.
IRS:
The
Internal Revenue Service.
Latest
Possible Maturity Date:
The
Distribution Date in April 2036.
▇▇▇▇▇▇
Brothers Holdings:
▇▇▇▇▇▇
Brothers Holdings Inc., or any successor in interest.
LIBOR:
Not
applicable.
LIBOR
Available Funds Cap:
Not
applicable.
LIBOR
Certificate:
Not
applicable.
LIBOR
Component:
Not
applicable.
LIBOR
Determination Date:
Not
applicable.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the applicable
Servicer has determined that all amounts that it expects to recover on behalf
of
the Trust Fund from or on account of such Mortgage Loan have been
recovered.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or any Servicer in connection
with the liquidation of any defaulted Mortgage Loan and are not recoverable
under the applicable Primary Mortgage Insurance Policy, including, without
limitation, foreclosure and rehabilitation expenses, legal expenses and
unreimbursed amounts expended pursuant to Sections 9.06, 9.16 or
9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
(including any Additional Collateral) if the Mortgaged Property (including
such
Additional Collateral) is acquired in satisfaction of the Mortgage Loan,
including any amounts remaining in the related Escrow Account.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value thereof.
26
London
Business Day:
Any day
on which banks are open for dealing in foreign currency and exchange in London,
England and New York City.
Losses:
As
defined in Section 10.03.
Maintenance:
Not
applicable.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicing Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
the Master Servicing Fee Rate and the Scheduled Principal Balance of such
Mortgage Loan as of the first day of the related Due Period. The Master
Servicing Fee for any Mortgage Loan shall be payable in respect of any
Distribution Date solely from the interest portion of the Scheduled Payment
or
other payment or recovery with respect to such Mortgage Loan.
Master
Servicing Fee Rate:
With
respect to each Mortgage Loan (other than any Participation), 0.000% per
annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware Corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as agent for the holder from
time to time of the Mortgage Note.
▇▇▇▇▇’▇:
Not
applicable.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
100SM
Loan:
Not
applicable.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee or a Custodian pursuant to this
Agreement.
Mortgage
Group:
Either
of Mortgage Group I or Mortgage Group II.
Mortgage
Group I:
Pool 1,
Pool 2 and Pool 3, collectively.
Mortgage
Group II:
Pool
4.
27
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured by
each such Mortgage conveyed, transferred, sold, assigned to or deposited with
the Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as amended
from time to time. In addition, as used herein the term “Mortgage Loan” includes
the Participations, except where otherwise specified or where the context
requires otherwise.
Mortgage
Loan Sale Agreement:
The
agreement, dated as of March 1, 2006, for the sale of certain Mortgage Loans
by
▇▇▇▇▇▇ Brothers Holdings to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
The
Mortgage Loan Schedule shall include, among other information agreed upon by
the
Depositor, the Master Servicer, the applicable Servicer, the Securities
Administrator and the Trustee, data fields specifying the terms and method
of
calculation of any Prepayment Penalty Amount with respect to each Mortgage
Loan.
The Depositor shall be responsible for providing the Trustee, the Master
Servicer and the Securities Administrator with all amendments to the Mortgage
Loan Schedule.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Pool:
Any of
Pool 1, Pool 2, Pool 3 or Pool 4.
Mortgage
Rate:
As to
any Mortgage Loan, the per annum rate at which interest accrues on such Mortgage
Loan.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Negative
Amortization:
Not
applicable.
Negative
Amortization Certificate:
None.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds net
of
unreimbursed expenses incurred in connection with liquidation or foreclosure
and
unreimbursed Advances, Servicing Advances and Servicing Fees received and
retained in connection with the liquidation of such Mortgage Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the sum
of
the applicable Master Servicing Fee Rate, Servicing Fee Rate, Securities
Administrator Fee Rate and any mortgage insurance premium rate (if
applicable).
28
Net
Prepayment Interest Shortfall:
With
respect to any Deposit Date, the excess, if any, of any Prepayment Interest
Shortfalls with respect to the Mortgage Loans in such Mortgage Pool for such
date over the sum of any amounts paid by the applicable Servicer with respect
to
such shortfalls and any amount that is required to be paid by the Master
Servicer in respect of such shortfalls pursuant to this Agreement.
Net
WAC:
With
respect to each Mortgage Pool or portion thereof and any Distribution Date,
the
weighted average of Net Mortgage Rates of the Mortgage Loans in the related
Mortgage Pool or portion thereof at the beginning of the related Due Period,
weighted on the basis of their Scheduled Principal Balances at the beginning
of
the related Due Period.
Non-AP
Percentage:
Not
applicable.
Non-AP
Senior Certificate:
Not
applicable.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Non-Discount
Mortgage Loan:
None.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As
defined in Section 3.03(f).
Non-U.S.
Person:
Any
person other than (i) a citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any
state thereof, including, for this purpose, the District of Columbia; (iii)
a
partnership (or entity treated as a partnership for tax purposes) organized
in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless
of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue
to
be U.S. Persons.
Notional
Amount:
With
respect to any Notional Certificate and any Distribution Date, such
Certificate’s Percentage Interest of the Class Notional Amount of such Class of
Certificates for such Distribution Date.
Notional
Certificate:
Any
Class 3-AX or Class 4-AX Certificate.
Notional
Component:
Not
applicable.
Offering
Document:
Either
of the private placement memorandum dated March 29, 2006 relating to the Class
B5-I, Class B6-I, Class B7-I, Class B5-II, Class B6-II and Class B7-II
Certificates, or the Prospectus.
29
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
One-Year
MTA:
Not
Applicable.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee, and who may be in-house or outside counsel to the Depositor, the Master
Servicer or the applicable Servicer but which must be Independent outside
counsel with respect to any such opinion of counsel concerning the transfer
of
any Residual Certificate or concerning certain matters with respect to ERISA,
or
the taxation, or the federal income tax status, of each REMIC. For purpose
of
Section 2.01(c)(i), the Opinion of Counsel referred to therein may take the
form
of a memorandum of law or other acceptable assurance.
Original
Credit Support Percentage:
With
respect to any Class of Subordinate Certificates, the Credit Support Percentage
with respect to such Class on the Closing Date.
Original
Group Subordinate Amount:
As to
any Mortgage Pool, the Group Subordinate Amount for such Mortgage Pool as of
the
first Distribution Date.
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
Originators:
Aurora
Loan Services LLC, Countrywide Home Loans, Inc., HSBC Mortgage Corp. (USA).
and
▇▇▇▇▇ Fargo Bank, N.A., and their successors and assigns and any other
originator contemplated by Item 1110 (§ 229.1110) of Regulation AB.
Parent
PowerSM
Loan:
Not
applicable.
Participation
Agreement:
Not
applicable.
Participation:
Not
applicable.
Participation
Schedule:
Not
applicable.
Participation
Master Servicer:
Not
applicable.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
Permitted
Servicing Amendment:
Any
amendment to any Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Permitted
Transferee:
As
defined in Section 3.03(f).
30
Percentage
Interest:
With
respect to any Certificate and the related Class, such Certificate’s percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than a Notional Certificate, the Percentage
Interest evidenced thereby shall equal the initial Certificate Principal Amount
thereof divided by the initial Class Principal Amount of all Certificates of
the
same Class. With respect to any Notional Certificate and any Class P
Certificate, the Percentage Interest evidenced thereby shall be as specified
on
the face thereof.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Placement
Agent:
▇▇▇▇▇▇
Brothers Inc.
Plan
Asset Regulations:
Not
applicable.
Pledged
Asset Loan-to-Value Ratio:
Not
applicable.
Pledged
Asset Mortgage Loan:
Not
applicable.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 1.
Pool
1-3 Underlying Subordinate Rate:
The
weighted average of the Underlying Subordinate Rate for Pool 1, Pool 2 and
Pool
3 weighted by the corresponding Group Subordinate Amounts.
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 2.
Pool
3:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 3.
Pool
4:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 4.
Pool
4
Underlying Subordinate Rate:
The
Underlying Subordinate Rate for Pool 4.
Pool
Balance:
As to
each Mortgage Pool and any Distribution Date, the sum of the Scheduled Principal
Balance of the Mortgage Loans included in such Mortgage Pool.
Prepayment
Interest Excess:
With
respect to any Distribution Date and any Principal Prepayment in full received
on the Mortgage Loans serviced by Aurora from the first day through the
sixteenth day of the month during which such Distribution Date occurs, all
amounts paid in respect of interest at the applicable Net Mortgage Rate on
such
Principal Prepayment in full.
31
Prepayment
Interest Shortfall:
With
respect to any Distribution Date and (x) any Principal Prepayment in part and,
with respect to those Mortgage Loans serviced by Servicers other than Aurora,
any Principal Prepayment in full, (y) any Principal Prepayment in full with
respect to those Mortgage Loans serviced by Aurora if received on or after
the
seventeenth day of the month immediately preceding the month of such
Distribution Date but on or before the last day of the month immediately
preceding the month of such Distribution Date and (z) any Principal Prepayment
in full or in part with respect to those Mortgage Loans serviced by Countrywide
Home Loans Servicing LP if received on or after the second day of the month
immediately preceding the month of such Distribution Date but on or before
the
last day of the month immediately preceding the month of such Distribution
Date,
the difference between (i) one full month’s interest at the applicable Mortgage
Rate (after giving effect to any applicable Relief Act Reduction), as reduced
by
the applicable Servicing Fee Rate and the Master Servicing Fee Rate on the
outstanding principal balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest actually received with respect to
such Mortgage Loan in connection with such Principal Prepayment.
Prepayment
Penalty Amounts:
With
respect to any Distribution Date, all premiums or charges paid by the obligors
under the related Mortgage Notes due to Principal Prepayments collected by
the
applicable Servicer during the immediately preceding Prepayment Period, if
any.
Prepayment
Period:
For
each Distribution Date and for any Principal Prepayment in part or in full
(including any liquidation) (except Principal Prepayments in part or in full
received by Countrywide Home Loans Servicing LP and Principal Prepayments in
full received by Aurora), the calendar month immediately preceding the month
in
which such Distribution Date occurs. For each Distribution Date and a Principal
Prepayment in full (including any liquidation) received by Aurora, the period
from the seventeenth (or, in the case of the first Distribution Date, the first)
day of the month immediately preceding the month of such Distribution Date
through the sixteenth day of the month of such Distribution Date. For each
Distribution Date and for a Principal Prepayment in part or in full (including
any liquidation) received by Countrywide Servicing related to each Distribution
Date, the 2nd
day (or,
in the case of the first Distribution Date, the 1st)
of the
calendar month immediately preceding the month in which such Distribution Date
occurs through the first day of the calendar month in which such Distribution
Date occurs.
Primary
Mortgage Insurance Policy:
Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
Principal
Amount Schedules:
Not
applicable.
Principal
Only Certificate:
Not
applicable.
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the applicable Servicing Agreement.
Proceeding:
Not
applicable.
32
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
Prospectus:
The
prospectus supplement dated March 29, 2006, together with the accompanying
prospectus dated September 26, 2005, relating to the Senior Certificates and
the
Class B1-I, Class B2-I, Class B3-I, Class B4-I, Class B1-II, Class B2-II, Class
B3-II and Class B4-II Certificates.
Purchase
Price:
With
respect to the repurchase of a Mortgage Loan pursuant to this Agreement, an
amount equal to the sum of (a) 100% of the unpaid principal balance of such
Mortgage Loan, (b) accrued interest thereon at the Mortgage Rate, from the
date
as to which interest was last paid to (but not including) the Due Date
immediately preceding the next Distribution Date, (c) any unreimbursed Servicing
Advances with respect to such Mortgage Loan and (d) any costs and damages
incurred by the Trust Fund in connection with any violation by such Mortgage
Loan of any predatory- or abusive-lending law. The Master Servicer or the
applicable Servicer (or the Securities Administrator, if applicable) shall
be
reimbursed from the Purchase Price for any Mortgage Loan or related REO Property
for any Advances made with respect to such Mortgage Loan that are reimbursable
to the Master Servicer, such Servicer or the Securities Administrator under
this
Agreement or the applicable Servicing Agreement, as well as any unreimbursed
Servicing Advances and accrued and unpaid Master Servicing Fees or Servicing
Fees, as applicable.
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(b) be
an obligation of an insurance company or other corporation whose long-term
debt
is rated by each Rating Agency in one of its two highest rating categories
or,
if such insurance company has no long-term debt, whose claims paying ability
is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(c) provide
that the Trustee may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(d) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Certificates, the Trustee shall terminate such contract without penalty and
be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trustee;
(e) provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
33
(f) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account or the Certificate Account, as the case may be, not
later than the Business Day prior to any Distribution Date.
Qualified
Insurer:
Not
applicable.
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage
Loan
that, on the date of substitution, (i) has a Scheduled Principal Balance
(together with that of any other mortgage loan substituted for the same Deleted
Mortgage Loan) as of the Due Date in the month in which such substitution occurs
not in excess of the Scheduled Principal Balance of the related Deleted Mortgage
Loan, provided, however, that, to the extent that the Scheduled Principal
Balance of such Mortgage Loan is less than the Scheduled Principal Balance
of
the related Deleted Mortgage Loan, then such differential in principal amount,
together with interest thereon at the applicable Mortgage Rate net of the
applicable Master Servicing Fee and the applicable Servicing Fee from the date
as to which interest was last paid through the end of the Due Period in which
such substitution occurs, shall be paid by the party effecting such substitution
to the Master Servicer for deposit into the Collection Account, and shall be
treated as a Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not
lower than the Net Mortgage Rate of the related Deleted Mortgage Loan and will
be a Discount Mortgage Loan if the Deleted Mortgage Loan was a Discount Mortgage
Loan or a Non-Discount Mortgage Loan if the Deleted Mortgage Loan was a
Non-Discount Mortgage Loan; (iii) has a remaining stated term to maturity not
more than eighteen months longer than, and not more than eighteen months shorter
than, the remaining term to stated maturity of the related Deleted Mortgage
Loan; (iv) (A) has a Loan-to-Value Ratio as of the date of such substitution
of
not greater than 80%, provided, however, that if the related Deleted Mortgage
Loan has a Loan-to-Value Ratio of greater than 80%, then the Loan-to-Value
Ratio
of such substitute Mortgage Loan may be greater than 80% but shall not be
greater than the Loan-to-Value Ratio of the related Deleted Mortgage Loan and
(B) the addition of such substitute Mortgage Loan does not increase the weighted
average Loan-to-Value Ratio of the related Mortgage Pool by more than 5%; (v)
will comply with all of the representations and warranties relating to Mortgage
Loans set forth herein, as of the date as of which such substitution occurs;
(vi) is not a Cooperative Loan unless the related Deleted Mortgage Loan was
a
Cooperative Loan; (vii) if applicable, has the same index as and a margin not
less than that of the related Deleted Mortgage Loan; (viii) has not been
delinquent for a period of more than 30 days more than once in the twelve months
immediately preceding such date of substitution; (ix) is covered by a Primary
Mortgage Insurance Policy if the related Deleted Mortgage Loan is so covered,
and the Loan-to-Value Ratio of such Mortgage Loan is greater than 80%; (x)
has a
Credit Score not greater than 20 points lower than the Credit Score of the
related Deleted Mortgage Loan, provided, however, that if the Deleted Mortgage
Loan does not have a Credit Score, then such substitute Mortgage Loan shall
have
a Credit Score equal to or greater than 700; (xi) has its initial adjustment
date after the related Reset Date; and (xii) has a gross margin no less than
the
related Deleted Mortgage Loan. In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one mortgage
loan is substituted for one or more Deleted Mortgage Loans, then (a) the
Scheduled Principal Balance referred to in clause (i) above shall be determined
such that the aggregate Scheduled Principal Balance of all such substitute
Mortgage Loans shall not exceed the aggregate Scheduled Principal Balance of
all
Deleted Mortgage Loans and (b) each of (1) the rate referred to in clause (ii)
above, (2) the remaining term to stated maturity referred to in clause (iii)
above, (3) the Loan-to-Value Ratio referred to in clause (iv) above and (4)
the
Credit Score referred to in clause (x) above shall be determined on a weighted
average basis, provided that the final scheduled maturity date of any Qualifying
Substitute Mortgage Loan shall not exceed the Final Scheduled Distribution
Date
of any Class of Certificates. Whenever a Qualifying Substitute Mortgage Loan
is
substituted for a Deleted Mortgage Loan pursuant to this Agreement, the party
effecting such substitution shall certify such qualification in writing to
the
Trustee and the Master Servicer.
34
Rating
Agency:
Each of
S&P or Fitch.
Realized
Loss:
(a)
with respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation, plus
(ii)
interest at the applicable Net Mortgage Rate from the date as to which interest
was last paid up to the last day of the month of such liquidation, minus (iii)
Liquidation Proceeds received, net of amounts that are reimbursable to the
Master Servicer or the applicable Servicer with respect to such Mortgage Loan
(other than Advances of principal and interest) including expenses of
liquidation or (b) with respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, the difference between the unpaid principal
balance of such Mortgage Loan immediately prior to such Deficient Valuation
and
the unpaid principal balance of such Mortgage Loan as reduced by the Deficient
Valuation. In determining whether a Realized Loss on a Liquidated Mortgage
Loan
is a Realized Loss of interest or principal, Liquidation Proceeds shall be
allocated, first, to payment of expenses related to such Liquidated Mortgage
Loan, then to accrued unpaid interest and finally to reduce the principal
balance of the Mortgage Loan.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to any Distribution Date and each Class of Certificates, the close
of
business on the last Business Day of the month immediately preceding the month
in which such Distribution Date occurs.
Redemption
Certificate:
None.
Reference
Banks:
Not
applicable.
Regulation
AB:
Subpart
229.1100
- Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as
such may be amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed Reg. 1,506,
1.531 (Jan. 7, 2005)) or by the staff of the Commission, or as may otherwise
be
provided by the Commission or its staff from time to time; and all references
to
any rule, item, section or subsection of, or definition or term contained in,
Regulation AB mean such rule, item, section, subsection, definition or term,
as
the case may be, or any successor thereto, in each case as the same may be
amended from time to time.
35
Regulation
S:
Regulation S promulgated under the Act or any successor provision thereto,
in
each case as the same may be amended from time to time; and all references
to
any rule, section or subsection of, or definition or term contained in,
Regulation S means such rule, section, subsection, definition or term, as the
case may be, or any successor thereto, in each case as the same may be amended
from time to time.
Regulation
S Global Security:
The
meaning specified in Section 3.01(c).
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit O attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, each Custodian or each Servicer, the
term “Relevant Servicing Criteria” may refer to a portion of the Relevant
Servicing Criteria applicable to such parties.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the
Servicemembers Civil Relief Act or any similar state law, any amount by which
interest collectible on such Mortgage Loan for the Due Date in the related
Due
Period is less than interest accrued thereon for the applicable one-month period
at the Mortgage Rate without giving effect to such reduction.
REMIC:
Each of
REMIC I-1, REMIC I-2, REMIC I-3, REMIC II-1 and REMIC II-2, as described in
the
Preliminary Statement hereto.
REMIC
I-1:
REMIC
I-1 as described in the Preliminary Statement hereto.
REMIC
I-1 Interest:
Any one
of the classes of REMIC I-1 Interests described in the Preliminary Statement
hereto.
REMIC
I-1 Regular Interest:
Each of
the REMIC I-1 Interests other than the Class LTI1-R Interest.
REMIC
I-1 Subordinated Balance Ratio:
As of
any Distribution Date, the ratio among the uncertificated principal balances
of
each of the REMIC I-1 Regular Interests ending with the designation “A” that is
equal to the ratio among, with respect to each such REMIC I-1 Regular Interest,
the excess of (x) the aggregate Scheduled Principal Balance of the Mortgage
Loans in the related Mortgage Pool over (y) the aggregate Class Principal
Amounts of the Senior Certificates of the Certificate Group related to such
Mortgage Pool (after giving effect to distributions on such Distribution
Date).
REMIC
I-2:
REMIC
I-2 as described in the Preliminary Statement hereto.
REMIC
I-2 Interest:
Any one
of the classes of REMIC I-2 Interests described in the Preliminary Statement
hereto.
REMIC
I-2 Regular Interest:
Each of
the REMIC I-2 Interests other than the Class LTI2-R Interest.
REMIC
I-3:
REMIC
I-3 as described in the Preliminary Statement hereto.
36
REMIC
I-3 Interest:
Any one
of the classes of REMIC I-3 Interests described in the Preliminary Statement
hereto.
REMIC
I-3 Regular Interest:
Each
Class of the Group I Certificates other than the Class R
Certificate.
REMIC
II-1:
REMIC
II-1 as described in the Preliminary Statement hereto.
REMIC
II-1 Interest:
Any one
of the classes of REMIC II-1 Interests as described in the Preliminary Statement
hereto.
REMIC
II-1 Regular Interest:
Each of
the REMIC II-1 Interests other than the Class LTII1-R Interest.
REMIC
II-2:
REMIC
II-2 as described in the Preliminary Statement hereto.
REMIC
II-2 Interest:
Any one
of the classes of REMIC II-2 Interests as described in the Preliminary Statement
hereto.
REMIC
II-2 Regular Interest:
Each
Class of the Group II Certificates.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The day
in each month on which each Servicer is required to remit payments to the
account maintained by the Master Servicer, as specified in the applicable
Servicing Agreement, which is the 18th
day of
each month (or if such 18th
day is
not a Business Day, the next succeeding Business Day).
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Sevicer:
As
defined in Section 6.20(e)(i).
Repurchase
Price:
As
defined in Section 7.01.
Reserve
Interest Rate:
Not
applicable.
Reset
Date:
Not
applicable.
Residual
Certificate:
Any
Class R Certificate.
37
Responsible
Officer:
When
used with respect to the Trustee, any officer within its corporate trust
department having direct responsibility for the administration of this Agreement
and any other officer to whom a matter arising under this Agreement may be
referred.
Restricted
Certificate:
Any
Class B5-I, Class B6-I, Class B7-I, Class B5-II, Class B6-II or Class B7-II
Certificate but excluding any Regulation S Global Security.
Restricted
Global Security:
The
meaning specified in Section 3.01(c).
Rounding
Account:
Not
applicable.
S&P:
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any
successor in interest.
▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act:
The
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Exchange Act Signing Party that
complies with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as amended from time to time.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
(excluding all amounts of principal and interest that were due on or before
the
Cut-off Date whenever received) and, in the case of an REO Property, an amount
equivalent to the Scheduled Payment that would have been due on the related
Mortgage Loan if such Mortgage Loan had remained in existence. In the case
of
any bi-weekly payment Mortgage Loan, all payments due on such Mortgage Loan
during any Due Period shall be deemed collectively to constitute the Scheduled
Payment due on such Mortgage Loan in such Due Period.
Scheduled
Principal Amount:
Not
applicable.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan as of any Distribution Date, the principal
balance of such Mortgage Loan at the close of business on the Cut-off Date,
after giving effect to principal payments due on or before the Cut-off Date,
whether or not received, less an amount equal to principal payments due after
the Cut-off Date and on or before the Due Date in the related Due Period,
whether or not received from the Mortgagor or advanced by the applicable
Servicer or the Master Servicer, and all amounts allocable to unscheduled
principal payments (including Principal Prepayments, Net Liquidation Proceeds,
Insurance Proceeds and condemnation proceeds, in each case to the extent
identified and applied prior to or during the applicable Prepayment Period)
and
(ii) any REO Property as of any Distribution Date, the Scheduled Principal
Balance of the related Mortgage Loan on the Due Date immediately preceding
the
date of acquisition of such REO Property by or on behalf of the Trustee (reduced
by any amount applied as a reduction of principal on the Mortgage Loan). With
respect to any Mortgage Loan as of the Cut-off Date, as specified in the
Mortgage Loan Schedule or the Participation Schedule, as the case may
be.
38
Securities
Administrator:
▇▇▇▇▇
Fargo Bank, N.A., not in its individual capacity but solely as Securities
Administrator, or any successor in interest, or if any successor Securities
Administrator shall be appointed as herein provided, then such successor
Securities Administrator.
Securities
Administrator Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
the Securities Administrator Fee Rate and the Scheduled Principal Balance of
such Mortgage Loan as of the first day of the related Due Period.
Securities
Administrator Fee Rate:
0.0085%
per annum.
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Seller:
▇▇▇▇▇▇
Brothers Holdings or any successor in interest.
Senior
Certificate:
Any
Class 1-A1, Class 1-A2, Class 2-A1, Class 2-A2, Class 3-A1, Class 3-A2, Class
3-A3, Class 3-AX, Class 4-A, Class 4-AX or Class R Certificate.
Senior
Enhancement Percentage:
For
each Mortgage Group for any Distribution Date the percentage equivalent of
a
fraction, the numerator of which is the related Group Subordinate Amount or
Group Subordinate Amounts and the denominator of which is the related Pool
Balance or Pool Balances of such Mortgage Group for the immediately preceding
Distribution Date.
Senior
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the percentage
equivalent of the fraction, the numerator of which is the aggregate of the
Certificate Principal Amounts of the Class 1-A1, Class 1-A2 and Class R
Certificates, in the case of Pool 1, the Class 2-A1 and Class 2-A2 Certificates,
in the case of Pool 2, the Class 3-A1, Class 3-A2 and Class 3-A3 Certificates,
in the case of Pool 3, and the Class 4-A Certificates, in the case of Pool
4, in
each case immediately prior to such Distribution Date and the denominator of
which is the related Pool Balance for the immediately preceding Distribution
Date.
Senior
Prepayment Percentage:
With
respect to each of Pools 1 through 5 for any Distribution Date occurring during
the seven years beginning on the first Distribution Date, 100%, except as
described herein below. With respect to each of Mortgage Pools 1 through 5
for
any Distribution Date occurring on or after the seventh anniversary of the
first
Distribution Date, the related Senior Percentage plus the following percentage
of the related Subordinate Percentage for such Distribution Date: for any
Distribution Date in the first year thereafter, 70%; for any Distribution Date
in the second year thereafter, 60%; for any Distribution Date in the third
year
thereafter, 40%; for any Distribution Date in the fourth year thereafter, 20%;
and for any subsequent Distribution Date, 0%; provided, however, (i) if on
any of the foregoing Distribution Dates the Senior Enhancement Percentage for
Mortgage Group I or Mortgage Group II, as applicable, is less than the related
Initial Senior Enhancement Percentage, the Senior Prepayment Percentage for
each
Mortgage Pool in Mortgage Group I or Mortgage Group II, as applicable, on such
Distribution Date shall once again equal 100%, (ii) unless the condition
described in clause (i) has occurred, if on any Distribution Date before the
Distribution Date in April 2009, prior to giving effect to any distributions
on
such Distribution Date, the Senior Enhancement Percentage for Mortgage Group
I
or Mortgage Group II, as applicable, for such Distribution Date is greater
than
or equal to twice the related Initial Senior Enhancement Percentage, then the
Senior Prepayment Percentage for each Mortgage Pool in Mortgage Group I or
Mortgage Group II, as applicable, for such Distribution Date will equal the
related Senior Percentage plus 50% of the related Subordinate Percentage for
such Mortgage Pool and (iii) unless the condition described in clause (i) has
occurred, if on any Distribution Date on or after the Distribution Date in
April
2009, prior to giving effect to any distributions on such Distribution Date,
the
Senior Enhancement Percentage for Mortgage Group I or Mortgage Group II, as
applicable, for such Distribution Date is greater than or equal to twice the
related Initial Senior Enhancement Percentage, then the Senior Prepayment
Percentage for each Mortgage Pool in Mortgage Group I or Mortgage Group II,
as
applicable, on such Distribution Date will equal the related Senior
Percentage.
39
Notwithstanding
the foregoing, no decrease in the Senior Prepayment Percentage for any Mortgage
Pool in Mortgage Group I or Mortgage Group II, as applicable, below the
respective levels in effect for the most recent prior period set forth in the
paragraph above (calculated without regard to clause (ii) or clause (iii) of
the
paragraph above) shall be effective on any Distribution Date if, as of the
first
Distribution Date as to which any such decrease applies, (i) the average
outstanding principal balance on such Distribution Date and for the preceding
five Distribution Dates of all Mortgage Loans in the related Mortgage Pool
that
were delinquent 60 days or more (including for this purpose any Mortgage Loans
in foreclosure and the Scheduled Payments that would have been due on Mortgage
Loans with respect to which the related Mortgaged Property has been acquired
by
the Trust Fund if the related Mortgage Loan had remained in existence) is
greater than or equal to 50% of the applicable Group Subordinate Amount
immediately prior to such Distribution Date or (ii) cumulative Realized Losses
with respect to the Mortgage Loans in the related Mortgage Pool exceed (a)
with
respect to each Distribution Date prior to the third anniversary of the first
Distribution Date, 20% of the related Original Group Subordinate Amount, (b)
with respect to each Distribution Date on or after the third anniversary and
prior to the eighth anniversary of the first Distribution Date, 30% of the
related Original Group Subordinate Amount, (c) with respect to each Distribution
Date on or after the eighth anniversary and prior to the ninth anniversary
of
the first Distribution Date, 35% of the related Original Group Subordinate
Amount, (d) with respect to each Distribution Date on or after the ninth
anniversary and prior to the tenth anniversary of the first Distribution Date,
40% of the related Original Group Subordinate Amount, (e) with respect to each
Distribution Date on or after the tenth anniversary and prior to the eleventh
anniversary of the first Distribution Date, 45% of the related Original Group
Subordinate Amount, and (f) with respect to each Distribution Date on or after
the eleventh anniversary of the first Distribution Date or thereafter, 50%
of
the related Original Group Subordinate Amount. After the Class Principal Amount
of each Class of Senior Certificates in any Certificate Group has been reduced
to zero, the Senior Prepayment Percentage for the related Mortgage Pool shall
be
0%.
Senior
Principal Distribution Amount:
For
each Certificate Group and any Distribution Date, the sum of the following
amounts:
40
(i) the
product of (a) the related Senior Percentage for such date and (b) the principal
portion of each Scheduled Payment (without giving effect to any Debt Service
Reduction occurring prior to the Bankruptcy Coverage Termination Date), on
each
Mortgage Loan in the related Mortgage Pool due during the related Due
Period;
(ii) the
product of (a) the related Senior Prepayment Percentage for such date and (b)
each of the following amounts: (1) each Principal Prepayment on the Mortgage
Loans in the related Mortgage Pool collected during the related Prepayment
Period, (2) each other unscheduled collection, including any Subsequent
Recovery, Insurance Proceeds and Net Liquidation Proceeds (other than with
respect to any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period) representing or allocable
to
recoveries of principal in the related Mortgage Pool received during the related
Prepayment Period, and (3) the principal portion of all proceeds of the purchase
of any Mortgage Loan in the related Mortgage Pool (or, in the case of a
permitted substitution, amounts representing a principal adjustment) actually
received by the Securities Administrator with respect to the related Prepayment
Period;
(iii) with
respect to unscheduled recoveries allocable to principal of any Mortgage Loan
in
the related Mortgage Pool that was finally liquidated during the related
Prepayment Period, the lesser of (a) the related Net Liquidation Proceeds
allocable to principal and (b) the product of the related Senior Prepayment
Percentage for such date and the Scheduled Principal Balance of such related
Mortgage Loan at the time of liquidation; and
(iv) any
amounts described in clauses (i) through (iii) for any previous Distribution
Date that remain unpaid.
If
on any
Distribution Date the Class Principal Amount of each Class of Senior
Certificates in any Certificate Group has been reduced to zero, the Senior
Principal Distribution Amount for such Certificate Group for such date
(following such reduction) and each subsequent Distribution Date shall be
zero.
Servicer:
Any
Servicer that has entered into any of the Servicing Agreements attached as
Exhibit E hereto, or any successor in interest. Initially, the Servicers are
Aurora, Countrywide Home Loans Servicing LP, PHH Mortgage Corp., SunTrust
Mortgage Inc. and ▇▇▇▇▇ Fargo Bank, N.A..
Service(s)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments on
the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
Expenditures incurred by a Servicer in connection with the liquidation or
foreclosure of a Mortgage Loan which are eligible for reimbursement under the
applicable Servicing Agreement.
41
Servicing
Agreement:
Each
Servicing Agreement between a Servicer and the Seller, dated as of March 1,
2006, attached hereto in Exhibit E, and any other servicing agreement entered
into between a successor servicer and the Seller or the Trustee pursuant to
the
terms hereof.
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 Servicer, the Servicing Fee specified in the applicable
Servicing Agreement and set forth on the Mortgage Loan Schedule.
Servicing
Fee Rate:
With
respect to a Servicer, the Servicing Fee specified in the applicable Servicing
Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than each Servicer, each
Custodian, the Master Servicer, the Trustee, the Paying Agent and the Securities
Administrator, that is participating in the servicing function within the
meaning of Regulation AB, unless such Person’s activities relate only to 5% or
less of the Mortgage Loans.
Servicing
Officer:
Any
officer of the Master Servicer involved in or responsible for the administration
and servicing or master servicing of the Mortgage Loans whose name appears
on a
list of servicing officers furnished by the Master Servicer to the Trustee,
as
such list may from time to time be amended.
Similar
Law:
As
defined in Section 3.03(d).
Special
Hazard Loss:
With
respect to the Mortgage Loans, (x) any Realized Loss arising out of any direct
physical loss or damage to a Mortgaged Property which is caused by or results
from any cause, exclusive of any loss covered by a hazard policy or a flood
insurance policy required to be maintained in respect of such Mortgaged Property
and any loss caused by or resulting from (i) normal wear and tear, (ii)
conversion or other dishonest act on the part of the Trustee, the Master
Servicer, any Servicer or any of their agents or employees, or (iii) errors
in
design, faulty workmanship or faulty materials, unless the collapse of the
property or a part thereof ensues, or (y) any Realized Loss arising from or
related to the presence or suspected presence of hazardous wastes, or hazardous
substances on a Mortgaged Property unless such loss is covered by a hazard
policy or flood insurance policy required to be maintained in respect of such
Mortgaged Property, in any case, as reported by any Servicer to the Master
Servicer.
Special
Hazard Loss Limit:
As of
the Cut-off Date, $3,181,316 for Pools 1 through 3, and $5,129,681 for Pool
4,
which amounts shall each be reduced from time to time to an amount equal on
any
Distribution Date to the lesser of (a) the greatest of (i) 1% of the aggregate
of the Scheduled Principal Balances of the related Mortgage Loans; (ii) twice
the Scheduled Principal Balance of the related Mortgage Loan having the highest
Scheduled Principal Balance, and (iii) the aggregate Scheduled Principal
Balances of the related Mortgage Loans secured by Mortgaged Properties located
in the single California postal zip code area having the highest aggregate
Scheduled Principal Balance of Mortgage Loans of any such postal zip code area
and (b) the applicable Special Hazard Loss Limit as of the Closing Date less
the
amount, if any, of Special Hazard Losses incurred with respect to the related
Mortgage Loans since the Closing Date.
42
Specified
Rating:
Not
applicable.
Sponsor:
▇▇▇▇▇▇
Brothers Holdings Inc. and any successor in interest thereto.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Subcontractor:
Any
third-party or Affiliated vendor, subcontractor or other Person utilized by
a
Servicer, a Custodian, the Master Servicer, a Subservicer, the Securities
Administrator or the Trustee that is not responsible for the overall servicing
(as “servicing” is commonly understood by participants in the mortgage-backed
securities market) of the Mortgage Loans but performs one or more discrete
functions identified in Item 1122(d) of Regulation AB with respect to the
Mortgage Loans
under
direction and authority of such Servicer, Custodian, Master Servicer,
Subservicer or Trustee.
Subordinate
Certificate:
Any
Class B Certificate.
Subordinate
Certificate Writedown Amount:
As to
any Distribution Date, (x) with respect to the Group I Certificates, the amount
by which (i) the sum of the Class Principal Amounts of all the Certificates
related to Pools 1 through 3 (after giving effect to the distribution of
principal and the allocation of Realized Losses in reduction of the Certificate
Principal Amounts of the Certificates related to Pool 1, Pool 2 and Pool 3
on
such Distribution Date) exceeds (ii) the aggregate Scheduled Principal Balance
of the Mortgage Loans in Pool 1, Pool 2 and Pool 3 for such Distribution Date
or
(y) with respect to the Group II Certificates, the amount by which (i) the
sum
of the Class Principal Amounts of all the Certificates related to Pool 4 after
giving effect to the distribution of principal and the allocation of Realized
Losses in reduction of the Certificate Principal Amounts of the Certificates
related to Pool 4 on such Distribution Date) exceeds (ii) the aggregate
Scheduled Principal Balance of the Mortgage Loans in Pool 4 for such
Distribution Date.
Subordinate
Class Percentage:
With
respect to any Distribution Date and any Class of Subordinate Certificates,
the
percentage obtained by dividing the Class Principal Amount of such Class
immediately prior to such Distribution Date by the aggregate Certificate
Principal Amount of all Subordinate Certificates related to the same Mortgage
Group immediately prior to such Distribution Date.
Subordinate
Component Percentage:
Not
applicable.
Subordinate
Floating Rate Certificate Shortfall:
Not
applicable.
Subordinate
LIBOR Certificate:
Not
applicable.
Subordinate
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the difference between
100% and the related Senior Percentage for such Distribution Date.
43
Subordinate
Prepayment Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the difference between
100% and the related Senior Prepayment Percentage for such Distribution
Date.
Subordinate
Principal Distribution Amount:
For
each Mortgage Pool and any Distribution Date, the sum of the
following:
(i) the
product of (a) the related Subordinate Percentage for such date and (b) the
principal portion of each Scheduled Payment (without giving effect to any Debt
Service Reduction occurring prior to the applicable Bankruptcy Coverage
Termination Date) on each Mortgage Loan in the related Mortgage Pool due during
the related Due Period;
(ii) the
product of (a) the related Subordinate Prepayment Percentage for such date
and
(b) each of the following amounts: (1) each Principal Prepayment on the Mortgage
Loans in the related Mortgage Pool collected during the related Prepayment
Period, (2) each other unscheduled collection, including Subsequent Recoveries,
Insurance Proceeds and Net Liquidation Proceeds (other than with respect to
any
Mortgage Loan in the related Mortgage Pool that was finally liquidated during
the related Prepayment Period) representing or allocable to recoveries of
principal in the related Mortgage Pool received during the related Prepayment
Period, and (3) the principal portion of all proceeds of the purchase of any
Mortgage Loan in the related Mortgage Pool (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually received
by
the Securities Administrator with respect to the related Prepayment
Period;
(iii) with
respect to unscheduled recoveries allocable to principal of any Mortgage Loan
in
the related Mortgage Pool that was finally liquidated during the related
Prepayment Period, the related Net Liquidation Proceeds allocable to principal
less any related amount paid pursuant to subsection (iii) of the definition
of
Senior Principal Distribution Amount for the related Certificate Group;
and
(iv) any
amounts described in clauses (i) through (iii) for any previous Distribution
Date that remain unpaid.
Subsequent
Recovery:
The
amount, if any, recovered by the related Servicer or the Master Servicer with
respect to a Liquidated Mortgage Loan with respect to which a Realized Loss
has
been incurred after liquidation and disposition of such Mortgage
Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer or Additional Servicer, and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Servicer, Master Servicer,
the Securities Administrator or the Trustee under this Agreement, the Servicing
Agreements, the Custodial Agreements or other Servicing agreements entered
into
with respect to some or all of the Mortgage Loans, that are identified in Item
1122(d) of Regulation AB.
Surety:
Not
applicable.
44
Surety
Bond:
Not
applicable.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Transfer
Agreement:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to ▇▇▇▇▇▇ Brothers Holdings pursuant to a Transfer
Agreement.
Trust
Fund:
The
corpus of the trust created pursuant to this Agreement, consisting of the
Mortgage Loans, the assignment of the Depositor’s rights under the Mortgage Loan
Sale Agreement and the Participation Agreement, the Participations, the
Additional Collateral, such amounts as shall from time to time be held in the
Collection Account, the Certificate Account, any Escrow Account, the Insurance
Policies, any REO Property and the other items referred to in, and conveyed
to
the Trustee under, Section 2.01(a).
Trust
Rate:
Not
applicable.
Trust
REMIC:
Any of
REMIC I-1, REMIC I-2, REMIC I-3, REMIC II-1 or REMIC II-2.
Trustee:
U.S.
Bank National Association, a national banking association, not in its individual
capacity, but solely in its capacity as trustee for the benefit of the
Certificateholders under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Trustee
Fee:
A fixed
annual fee of $3,500.00, which is paid by the Securities Administrator pursuant
to Section 6.12.
Trustee
Fee Rate:
Not
applicable.
Undercollateralization
Distribution:
As
defined in Section 5.02(f)(ii)(A).
Undercollateralized
Group:
With
respect to any Distribution Date, the Senior Certificates of any Certificate
Group as to which the aggregate Certificate Principal Amount thereof, after
giving effect to distributions pursuant to Sections 5.02(a) and (b) on such
date, is greater than the Pool Balance of the related Mortgage Pool for such
Distribution Date.
Underlying
Subordinate Rate:
For
Pool 1, for each Distribution Date, the Pool 1 Net WAC; for Pool 2, for each
Distribution Date, the Pool 2 Net WAC; for Pool 3, for each Distribution Date,
the Pool 3 Net WAC and for Pool 4, for each Distribution Date, the Pool 4 Net
WAC.
45
Underwriter’s
Exemption:
Prohibited Transaction Exemption 91-14, 56 Fed. Reg. 7413 (1991), as amended
(or
any successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
Not
applicable.
Unpaid
Subordinate Floating Rate Certificate Shortfall:
Not
applicable.
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement until the Class Notional Amount of
each
Class of Notional Certificates has been reduced to zero, 98% of all Voting
Interests shall be allocated to the Certificates other than the Notional
Certificates and the Class P-I and Class P-II Certificates, 5% of all Voting
Interests shall be allocated to the Notional Certificates, 1% shall be allocated
to the Class P-I Certificates and 1% shall be allocated to the Class P-II
Certificates. After the Class Notional Amounts of all Classes of Notional
Certificates have been reduced to zero, 96% of all Voting Interests shall be
allocated to the remaining Classes of Certificates other than the Class P-I
and
Class P-II Certificates. Voting Interests allocated to the Notional Certificates
shall be allocated among the Classes of such Certificates (and among the
Certificates of each such Class) in proportion to their Class Notional Amounts
(or Notional Amounts). Voting Interests shall be allocated among the Class
P-I
and Class P-II Certificates in proportion to their Percentage Interest. Voting
Interests shall be allocated among the other Classes of Certificates (and among
the Certificates of each such Class) in proportion to their Class Principal
Amounts (or Certificate Principal Amounts).
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the terms
of the Mortgage Loans and reports of payments received from the Mortgagor on
such Mortgage Loans and distributions to be made to the Certificateholders
as
supplied to the Securities Administrator by the Master Servicer. The Securities
Administrator shall not be required to recompute, verify or recalculate the
information supplied to it by the Master Servicer.
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans
(including the Participations). Such conveyance includes, without limitation,
the right to all distributions of principal and interest received on or with
respect to the Mortgage Loans on and after the Cut-off Date (other than payments
of principal and interest due on or before such date), and all such payments
due
after such date but received prior to such date and intended by the related
Mortgagors to be applied after such date, together with all of the Depositor’s
right, title and interest in and to the Collection Account and all amounts
from
time to time credited to and the proceeds of the Collection Account, the
Certificate Account and all amounts from time to time credited to and the
proceeds of the Certificate Account, any Escrow Account established pursuant
to
Section 9.06 hereof and all amounts from time to time credited to and the
proceeds of any such Escrow Account, any REO Property and the proceeds thereof,
the Depositor’s rights under any Insurance Policies related to the Mortgage
Loans, and the Depositor’s security interest in any collateral pledged to secure
the Mortgage Loans, including the Mortgaged Properties and any Additional
Collateral, and any proceeds of the foregoing, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it (or a Custodian on its behalf) has received and shall hold the Trust
Fund, as trustee, in trust, for the benefit and use of the Holders of the
Certificates and for the purposes and subject to the terms and conditions set
forth in this Agreement, and, concurrently with such receipt, has caused to
be
executed, authenticated and delivered to or upon the order of the Depositor,
in
exchange for the Trust Fund, Certificates in the authorized denominations
evidencing the entire ownership of the Trust Fund.
46
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Sale Agreement; including all rights of the Seller under the applicable
Servicing Agreement to the extent assigned under the Mortgage Loan Sale
Agreement. The Trustee hereby accepts such assignment, and shall be entitled
to
exercise all rights of the Depositor under the Mortgage Loan Sale Agreement
as
if, for such purpose, it were the Depositor.
It
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund that is a
“High-Cost Mortgage Loan” as defined under any applicable federal law or state
or local regulation, ordinance or law.
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance and
the
assignment and transfer with respect to Additional Collateral does not and
is
not intended to result in creation or assumption by the Trustee of any
obligation of the Depositor, the Seller, or any other Person in connection
with
the Mortgage Loans, the Servicing Agreements or any other agreement or
instrument relating thereto except as specifically set forth
herein.
In
addition, with respect to any Pledged Asset Mortgage Loan, the Depositor does
hereby transfer, assign, set-over and otherwise convey to the Trustee without
recourse (except as provided herein) (i) its rights as assignee under any
security agreements, pledge agreements or guarantees relating to the Additional
Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security
interest in and to any Additional Collateral, (iii) its right to receive
payments in respect of any Pledged Asset Mortgage Loan pursuant to the
Additional Collateral Servicing Agreement, and (iv) its rights as beneficiary
under the surety bond in respect of any Pledged Asset Mortgage Loan.
Notwithstanding anything to the contrary in this Agreement, the Trust Fund
shall
not obtain title to or beneficial ownership of any Additional Collateral as
a
result of or in lieu of the disposition thereof or otherwise.
47
(b) In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or the Custodian acting on the Trustee’s behalf, the following
documents or instruments with respect to each Mortgage Loan (each a “Mortgage
File”) so transferred and assigned (other than the Participations):
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, or in blank (in each case,
with all necessary intervening endorsements as applicable);
(ii) the
original of any guarantee, security agreement or pledge agreement relating
to
any Additional Collateral and executed in connection with the Mortgage Note,
assigned to the Trustee;
(iii) with
respect to each Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording indicated thereon and the original
recorded power of attorney, if the Mortgage was executed pursuant to a power
of
attorney, with evidence of recording thereon or, if such Mortgage or power
of
attorney has been submitted for recording but has not been returned from the
applicable public recording office, has been lost or is not otherwise available,
a copy of such Mortgage or power of attorney, as the case may be, certified
to
be a true and complete copy of the original submitted for recording. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage
with evidence of recording thereon on or prior to the Closing Date because
of a
delay caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost, the Depositor
shall deliver or cause to be delivered to the Trustee (or its custodian), in
the
case of a delay due to recording, a true copy of such Mortgage, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such Mortgage delivered to the Trustee (or its
custodian) is a true copy and that the original of such Mortgage has been
forwarded to the public recording office, or, in the case of a Mortgage that
has
been lost, a copy thereof (certified as provided for under the laws of the
appropriate jurisdiction) and a written Opinion of Counsel acceptable to the
Trustee and the Depositor that an original recorded Mortgage is not required
to
enforce the Trustee’s interest in the Mortgage Loan;
(iv) the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or its custodian) is a true
copy and that the original of such agreement has been forwarded to the public
recording office;
48
(v) with
respect to each Non-MERS Mortgage Loan other than a Cooperative Loan, the
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank, without recourse or (B)
to
“U.S. Bank National Association, as Trustee of the Structured Adjustable Rate
Mortgage Loan Trust Mortgage Pass Through Certificates, Series 2006-3,” without
recourse for each Mortgage Loan;
(vi) if
applicable, such original intervening assignments of the Mortgage, notice of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the originator, or, in
the
case of an Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Trustee that such original Intervening Assignment
is
not required to enforce the Trustee’s interest in the Mortgage
Loans;
(vii) the
original Primary Mortgage Insurance Policy or certificate, if private mortgage
guaranty insurance is required;
(viii) with
respect to each Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy or attorney’s opinion of title and abstract of
title;
(ix) the
original of any security agreement, chattel mortgage or equivalent executed
in
connection with the Mortgage or as to any security agreement, chattel mortgage
or their equivalent that cannot be delivered on or prior to the Closing Date
because of a delay caused by the public recording office where such document
has
been delivered for recordation, a photocopy of such document, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such security agreement, chattel mortgage or their
equivalent delivered to the Trustee (or its custodian) is a true copy and that
the original of such document has been forwarded to the public recording office;
and
(x) with
respect to any Cooperative Loan, the Cooperative Loan Documents.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee, for
the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
With
respect to each Participation, the Depositor does hereby deliver to, and deposit
with, or cause to be delivered to and deposited with, the Trustee, and/or any
custodian acting on the Trustee’s behalf, a copy of the Participation Agreement
and the original Participation issued to the Trustee.
(c) (1) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan other than a Cooperative
Loan shall be recorded; provided, however, that such Assignments need not be
recorded if, in the Opinion of Counsel (which must be from Independent counsel)
acceptable to the Trustee and the Rating Agencies, recording in such states
is
not required to protect the Trustee’s interest in the related Non-MERS Mortgage
Loans. Subject to the preceding sentence, as soon as practicable after the
Closing Date (but in no event more than 3 months thereafter except to the extent
delays are caused by the applicable recording office), the Master Servicer
(or
its Custodian), at the expense of the Depositor and with the cooperation of
the
applicable Servicer, shall cause to be properly recorded by such Servicer in
each public recording office where the related Mortgages are recorded each
Assignment of Mortgage referred to in subsection (b)(v) above with respect
to a
Non-MERS Mortgage Loan. With respect to each Cooperative Loan, the Master
Servicer (or its Custodian), at the expense of the Depositor and with the
cooperation of the applicable Servicer, shall cause such Servicer to take such
actions as are necessary under applicable law in order to perfect the interest
of the Trustee in the related Mortgaged Property.
49
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer (or its applicable
Custodian), at the expense of the Depositor and with the cooperation of the
applicable Servicer, shall cause to be taken such actions by such Servicer
as
are necessary to cause the Trustee to be clearly identified as the owner of
each
such Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS.
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee, or to the applicable Custodian on behalf of the Trustee, under clause
(b)(viii) above and is not so delivered, the Depositor will provide a copy
of
such Title Insurance Policy to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing
Date.
(e) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, an Officer’s Certificate which shall include a statement
to the effect that all amounts received in connection with such prepayment
that
are required to be deposited in the applicable Collection Account pursuant
to
Section 4.01 have been so deposited. All original documents that are not
delivered to the Trustee or the applicable Custodian on behalf of the Trustee
shall be held by the Master Servicer or the applicable Servicer in trust for
the
benefit of the Trustee and the Certificateholders.
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
(a) The
Trustee or the applicable Custodian on behalf of the Trustee, by execution
and
delivery hereof, acknowledges receipt of the Participations and the Mortgage
Files pertaining to the Mortgage Loans listed on the Mortgage Loan Schedule,
subject to review thereof by the Trustee, or by the applicable Custodian on
behalf of the Trustee, under this Section 2.02. The Trustee, or the applicable
Custodian on behalf of the Trustee, will execute and deliver to the Trustee,
the
Depositor and the Master Servicer on the Closing Date an Initial Certification
in the form annexed hereto as Exhibit B-1 (or in the form annexed to the
applicable Custodial Agreement as Exhibit B-1, as applicable).
50
(b) Within
45 days after the Closing Date, the applicable Custodian will, on behalf of
the
Trustee and for the benefit of Holders of the Certificates, review each Mortgage
File to ascertain that all required documents set forth in Section 2.01 have
been received and appear on their face to contain the requisite signatures
by or
on behalf of the respective parties thereto, and shall deliver to the Trustee,
the Depositor and the Master Servicer an Interim Certification in the form
annexed hereto as Exhibit B-2 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-2, as applicable) to the effect that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan prepaid in full or any Mortgage Loan specifically identified in such
certification as not covered by such certification), (i) all of the applicable
documents specified in Section 2.01(b) are in its possession and (ii) such
documents have been reviewed by it and appear to relate to such Mortgage Loan.
The Trustee, or the applicable Custodian on behalf of the Trustee, shall make
sure that the documents are executed and endorsed, but shall be under no duty
or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that the same are valid, binding,
legally effective, properly endorsed, genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded or are in
recordable form or that they are other than what they purport to be on their
face. Neither the Trustee nor any Custodian shall have any responsibility for
verifying the genuineness or the legal effectiveness of or authority for any
signatures of or on behalf of any party or endorser.
(c) If
in the course of the review described in paragraph (b) above the Trustee or
the
applicable Custodian discovers any document or documents constituting a part
of
a Mortgage File that is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the applicable Custodian on behalf
of the Trustee, shall promptly identify the Mortgage Loan to which such Material
Defect relates in the Interim Certificate delivered to the Depositor or the
Master Servicer (and to the Trustee). Within 90 days of its receipt of such
notice, the Depositor shall be required to cure such Material Defect (and,
in
such event, the Depositor shall provide the Trustee with an Officer’s
Certificate confirming that such cure has been effected). If the Depositor
does
not so cure such Material Defect, it shall, if a loss has been incurred with
respect to such Mortgage Loan that would, if such Mortgage Loan were not
purchased from the Trust Fund, constitute a Realized Loss, and such loss is
attributable to the failure of the Depositor to cure such Material Defect,
repurchase the related Mortgage Loan from the Trust Fund at the Purchase Price.
A loss shall be deemed to be attributable to the failure of the Depositor to
cure a Material Defect if, as determined by the Depositor, upon mutual agreement
with the Servicer acting in good faith, absent such Material Defect, such loss
would not have been incurred. Within the two-year period following the Closing
Date, the Depositor may, in lieu of repurchasing a Mortgage Loan pursuant to
this Section 2.02, substitute for such Mortgage Loan a Qualifying Substitute
Mortgage Loan subject to the provisions of Section 2.05. The failure of the
Trustee or the applicable Custodian to give the notice contemplated herein
within 45 days after the Closing Date shall not affect or relieve the Depositor
of its obligation to repurchase any Mortgage Loan pursuant to this Section
2.02
or any other Section of this Agreement requiring the repurchase of Mortgage
Loans from the Trust Fund.
(d) Within
180 days following the Closing Date, the Trustee, or the applicable Custodian,
shall deliver to the Trustee, the Depositor and the Master Servicer a Final
Certification substantially in the form annexed hereto as Exhibit B-3 (or in
the
form annexed to the applicable Custodial Agreement as Exhibit B-3, as
applicable) evidencing the completeness of the Mortgage Files in its possession
or control, with any exceptions noted thereto.
51
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee or the Certificateholders of any unsatisfied duty, claim
or
other liability on any Mortgage Loan or to any Mortgagor.
(f) Each
of the parties hereto acknowledges that the applicable Custodian shall hold
the
related Mortgage Files and shall perform the applicable review of the Mortgage
Loans and deliver the respective certifications thereof as provided in this
Section 2.02 and the related Custodial Agreement.
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, the Master Servicer and the Securities Administrator, as
of
the Closing Date or such other date as is specified, that:
(i) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or taken
prior to the date hereof;
(iv) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee, the Securities
Administrator and the Master Servicer, constitutes a valid and binding
obligation of the Depositor enforceable against it in accordance with its terms
except as such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
52
(v) there
are no actions, suits or proceedings pending or, to the knowledge of the
Depositor, threatened or likely to be asserted against or affecting the
Depositor, before or by any court, administrative agency, arbitrator or
governmental body (A) with respect to any of the transactions contemplated
by
this Agreement or (B) with respect to any other matter which in the judgment
of
the Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely affect it or
its
business, assets, operations or condition, financial or otherwise, or adversely
affect its ability to perform its obligations under this Agreement;
and
(vi) immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan, and
the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly subject which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement.
(b) The
representations and warranties of each Transferor with respect to the related
Mortgage Loans in the applicable Transfer Agreement, which have been assigned
to
the Trustee hereunder, were made as of the date specified in the applicable
Transfer Agreement (or underlying agreement, if such Transfer Agreement is
in
the form of an assignment of a prior agreement). To the extent that any fact,
condition or event with respect to a Mortgage Loan constitutes a breach of
both
(i) a representation or warranty of the applicable Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of ▇▇▇▇▇▇
Brothers Holdings under the Mortgage Loan Sale Agreement, the only right or
remedy of the Trustee or of any Certificateholder shall be the Trustee’s right
to enforce the obligations of the applicable Transferor under any applicable
representation or warranty made by it. The Trustee acknowledges that ▇▇▇▇▇▇
Brothers Holdings shall have no obligation or liability with respect to any
breach of a representation or warranty made by it with respect to the Mortgage
Loans if the fact, condition or event constituting such breach also constitutes
a breach of a representation or warranty made by the applicable Transferor
in
the applicable Transfer Agreement, without regard to whether such Transferor
fulfills its contractual obligations in respect of such representation or
warranty. The Trustee further acknowledges that the Depositor shall have no
obligation or liability with respect to any breach of any representation or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
53
|
Section
2.04.
|
Discovery
of Breach.
|
It
is
understood and agreed that the representations and warranties (i) set forth
in
Section 2.03, (ii) of ▇▇▇▇▇▇ Brothers Holdings set forth in the Mortgage Loan
Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii)
of each Transferor, assigned by ▇▇▇▇▇▇ Brothers Holdings to the Depositor
pursuant to the Mortgage Loan Sale Agreement and assigned to the Trustee by
the
Depositor hereunder shall each survive delivery of the Mortgage Files and the
Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue
throughout the term of this Agreement. Upon discovery by either the Depositor,
the Master Servicer or the Trustee of a breach of any of such representations
and warranties that adversely and materially affects the value of the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties. Within 90 days of the discovery of a breach of
any
representation or warranty given or assigned to the Trustee by the Depositor,
any Transferor, or ▇▇▇▇▇▇ Brothers Holdings, the Depositor, such Transferor,
or
▇▇▇▇▇▇ Brothers Holdings, as applicable, shall either (a) cure such breach
in
all material respects, (b) repurchase such Mortgage Loan or any property
acquired in respect thereof from the Trustee at the Purchase Price or (c) within
the two year period following the Closing Date, substitute a Qualifying
Substitute Mortgage Loan for the affected Mortgage Loan. In the event of
discovery of a breach of any representation and warranty of any Transferor
assigned to the Trustee, the Trustee shall enforce its rights under the
applicable Transfer Agreement and the Mortgage Loan Sale Agreement for the
benefit of Certificateholders. As provided in the Mortgage Loan Sale Agreement,
if any Transferor substitutes for a Mortgage Loan for which there is a breach
of
any representations and warranties in the related Transfer Agreement which
adversely and materially affects the value of such Mortgage Loan and such
substitute mortgage loan is not a Qualifying Substitute Mortgage Loan, under
the
terms of the Mortgage Loan Sale Agreement, ▇▇▇▇▇▇ Brothers Holdings will, in
exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase
Price for the affected Mortgage Loan or (ii) within two years of the
Closing Date, substitute such affected Mortgage Loan with a Qualifying
Substitute Mortgage Loan.
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by ▇▇▇▇▇▇ Brothers Holdings pursuant to the applicable Mortgage
Loan
Sale Agreement or by any Transferor pursuant to the applicable Transfer
Agreement, the principal portion of the funds received by the Master Servicer
in
respect of such repurchase of a Mortgage Loan will be considered a Principal
Prepayment and shall be deposited in the Collection Account pursuant to Section
4.01. The Trustee, upon receipt of the full amount of the Purchase Price for
a
Deleted Mortgage Loan, or upon receipt of notification from the related
Custodian that it received the Mortgage File for a Qualifying Substitute
Mortgage Loan substituted for a Deleted Mortgage Loan (and any applicable
Substitution Amount), shall release or cause to be released to the Depositor,
▇▇▇▇▇▇ Brothers Holdings or the applicable Transferor, as applicable, the
related Mortgage File for the Deleted Mortgage Loan and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as shall be necessary to vest in such
party or its designee or assignee title to any Deleted Mortgage Loan released
pursuant hereto, free and clear of all security interests, liens and other
encumbrances created by this Agreement, which instruments shall be prepared
by
the Trustee (or a Custodian), and the Trustee shall have no further
responsibility with respect to the Mortgage File relating to such Deleted
Mortgage Loan.
54
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or a Custodian) pursuant to the terms of this Article II in exchange
for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor,
or
▇▇▇▇▇▇ Brothers Holdings, as applicable, must deliver to the Trustee (or its
custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and containing
the granting language set forth in Section 2.01(a); and (ii) the Depositor
will
be deemed to have made, with respect to such Qualified Substitute Mortgage
Loan,
each of the representations and warranties made by it with respect to the
related Deleted Mortgage Loan. As soon as practicable after the delivery of
any
Qualifying Substitute Mortgage Loan hereunder, the Master Servicer, at the
expense of the Depositor and at the direction and with the cooperation of the
applicable Servicer, shall (i) with respect to a Qualifying Substitute Mortgage
Loan that is a Non-MERS Mortgage Loan, cause the Assignment of Mortgage to
be
recorded by such Servicer if required pursuant to Section 2.01(c)(i), or (ii)
with respect to a Qualifying Substitute Mortgage Loan that is a MERS Mortgage
Loan, cause to be taken such actions by such Servicer as are necessary to cause
the Trustee to be clearly identified as the owner of each such Mortgage Loan
on
the records of MERS if required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee has received an Opinion of Counsel (at
the
expense of the party seeking to make the substitution) that, under current
law,
such substitution will not (A) affect adversely the status of any REMIC
established hereunder as a REMIC, or of the related “regular interests” as
“regular interests” in any such REMIC, or (B) cause any such REMIC to engage in
a “prohibited transaction” or “prohibited contribution” pursuant to the REMIC
Provisions. The Depositor shall cause the Mortgage Loan Schedule to be amended
in accordance with the terms of this Agreement.
|
Section
2.06.
|
Grant
Clause.
|
It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (i) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(ii) the Depositor hereby grants to the Trustee for the benefit of the Holders
of the Certificates a first priority security interest in all of the Depositor’s
right, title and interest in, to and under, whether now owned or hereafter
acquired, the Trust Fund and all proceeds of any and all property constituting
the Trust Fund to secure payment of the Certificates; and (iii) this Agreement
shall constitute a security agreement under applicable law. If such conveyance
is deemed to be in respect of a loan and the Trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person holding any
Certificate, the security interest created hereby shall continue in full force
and effect and the Trustee shall be deemed to be the collateral agent for the
benefit of such Person, and all proceeds shall be distributed as herein
provided.
55
ARTICLE
III
THE
CERTIFICATES
|
Section
3.01.
|
The
Certificates.
|
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial ownership
of which will be held in the dollar denominations in Certificate Principal
Amount or Notional Principal Amount, as applicable, or in the Percentage
Interests, specified herein. Each Class of Book-Entry Certificates shall be
issued in the minimum denominations in Certificate Principal Amount (or Notional
Amount) or Percentage Interest specified in the Preliminary Statement hereto
and
in integral multiples of $1 or 5% (in the case of Certificates issued in
Percentage Interests) in excess thereof. Each Class of Non-Book Entry
Certificates other than the Residual Certificate shall be issued in definitive,
fully registered form in the minimum denominations in Certificate Principal
Amount (or Notional Amount) specified in the Preliminary Statement hereto and
in
integral multiples of $1 in excess thereof. The Residual Certificate shall
be
issued as a single Certificate and maintained in definitive, fully registered
form in a minimum denomination equal to $100. Each of the Class P Certificates
shall be maintained in definitive, fully registered form in a minimum
denomination equal to 25% of the Percentage Interest of such Class of
Certificates. The Certificates may be issued in the form of typewritten
certificates. One Certificate of each Class of Certificates other than any
Class
of Residual Certificates may be issued in any denomination in excess of the
minimum denomination.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Authenticating Agent by an authorized officer of the Trustee or the
Authenticating Agent. Each Certificate shall, on original issue, be
authenticated by the Authenticating Agent upon the order of the Depositor upon
receipt by the Trustee of the Mortgage Files described in Section 2.01. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by an
authorized officer of the Trustee or the Authenticating Agent, if any, by manual
signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver
such
Certificates as in this Agreement provided and not otherwise.
56
(c) The
Class B5-I, Class B6-I, Class B7-I, Class B5-II, Class B6-II or Class B7-II
Certificates offered and sold in reliance on the exemption from registration
under Rule 144A shall be issued initially in the form of one or more permanent
global Certificates in definitive, fully registered form without interest
coupons with the applicable legends set forth in Exhibit A added to the forms
of
such Certificates (each, a “Restricted Global Security”), which shall be
deposited on behalf of the subscribers for such Certificates represented thereby
with the Securities Administrator, as custodian for DTC and registered in the
name of a nominee of DTC, duly executed and authenticated by the Trustee as
hereinafter provided. The aggregate principal amounts of the Restricted Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee or DTC or its nominee, as the case may be, as
hereinafter provided.
The
Class
B5-I, Class B6-I, Class B7-I, Class B5-II, Class B6-II or Class B7-II
Certificates sold in offshore transactions in reliance on Regulation S shall
be
issued initially in the form of one or more permanent global Certificates in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A hereto added to the forms of such Certificates
(each, a “Regulation S Global Security”), which shall be deposited on behalf of
the subscribers for such Certificates represented thereby with the Securities
Administrator, as custodian for DTC and registered in the name of a nominee
of
DTC, duly executed and authenticated by the Trustee or the Authenticating Agent
as hereinafter provided. The aggregate principal amounts of the Regulation
S
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Securities Administrator or DTC or its nominee,
as
the case may be, as hereinafter provided.
(d) The
Class B5-I, Class B6-I, Class B7-I, Class B5-II, Class B6-II or Class B7-II
Certificates sold to an “accredited investor” complying with the transfer
provision set forth in Section 3.03 under Rule 501(a)(1), (2), (3) or (7) under
the Act shall be issued initially in the form of one or more Definitive
Certificates.
|
Section
3.02.
|
Registration.
|
The
Securities Administrator is hereby appointed, and hereby accepts its appointment
as, the initial Certificate Registrar in respect of the Certificates and shall
maintain books for the registration and for the transfer of Certificates (the
“Certificate Register”). A registration book shall be maintained for the
Certificates collectively. The Certificate Registrar may resign or be discharged
or removed and a new successor may be appointed in accordance with the
procedures and requirements set forth in Sections 6.06 and 6.07 hereof with
respect to the resignation, discharge or removal of the Trustee and the
appointment of a successor trustee. The Certificate Registrar may appoint,
by a
written instrument delivered to the Holders and the Master Servicer, any bank
or
trust company to act as co-registrar under such conditions as the Certificate
Registrar may prescribe; provided, however, that the Certificate Registrar
shall
not be relieved of any of its duties or responsibilities hereunder by reason
of
such appointment.
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
(a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, the Trustee shall execute, and the Trustee or
any
Authenticating Agent shall authenticate and deliver to the transferee, one
or
more new Certificates of the same Class and evidencing, in the aggregate, the
same aggregate Certificate Principal Amount as the Certificate being
transferred. No service charge shall be made to a Certificateholder for any
registration of transfer of Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that
may be imposed in connection with any registration of transfer of
Certificates.
57
(b) A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing in
the
aggregate the same Certificate Principal Amount as the Certificate surrendered,
upon surrender of the Certificate to be exchanged at the office of the
Certificate Registrar duly endorsed or accompanied by a written instrument
of
transfer duly executed by such Holder or his duly authorized attorney in such
form as is satisfactory to the Certificate Registrar. Certificates delivered
upon any such exchange will evidence the same obligations, and will be entitled
to the same rights and privileges, as the Certificates surrendered. No service
charge shall be made to a Certificateholder for any exchange of Certificates,
but the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
exchange of Certificates. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, and the Trustee or the Authenticating
Agent
shall authenticate, date and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(c) By
acceptance of a Restricted Certificate or a Regulation S Global Security,
whether upon original issuance or subsequent transfer, each Holder of such
a
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth thereon and agrees that it will transfer such a Certificate only
as
provided herein. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i) such
Person is not a U.S. person within the meaning of Regulation S and was, at
the
time the buy order was originated, outside the United States and (ii) such
Person understands that such Certificates have not been registered under the
Securities Act of 1933, as amended (the “Securities Act”), and that (x) until
the expiration of the 40-day distribution compliance period (within the meaning
of Regulation S), no offer, sale, pledge or other transfer of such Certificates
or any interest therein shall be made in the United States or to or for the
account or benefit of a U.S. person (each as defined in Regulation S), (y)
if in
the future it decides to offer, resell, pledge or otherwise transfer such
Certificates, such Certificates may be offered, resold, pledged or otherwise
transferred only (A) to a person which the seller reasonably believes is a
“qualified institutional buyer” (a “QIB”) as defined in Rule 144A under the
Securities Act, that is purchasing such Certificates for its own account or
for
the account of a qualified institutional buyer to which notice is given that
the
transfer is being made in reliance on Rule 144A or (B) in an offshore
transaction (as defined in Regulation S) in compliance with the provisions
of
Regulation S, in each case in compliance with the requirements of this
Agreement; and it will notify such transferee of the transfer restrictions
specified in this Section.
58
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or the Placement Agent, an
affiliate (as defined in Rule 405 under the Act) of the Depositor or the
Placement Agent or (y) being made to a QIB by a transferor that has provided
the
Certificate Registrar with a certificate in the form of Exhibit F hereto;
and
(ii) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Act by a transferor who furnishes to the
Certificate Registrar a letter of the transferee substantially in the form
of
Exhibit G hereto.
(d) No
Transfer of an ERISA-Restricted Certificate or a Residual Certificate will
be
registered unless the Trustee, the Certificate Registrar and the Depositor
receive (A) a representation as set forth in Exhibit D-1 for Residual
Certificates or Exhibit H for ERISA-Restricted Certificates to the effect that
such transferee is not an employee benefit plan or arrangement subject to Title
I of ERISA, a plan subject to Section 4975 of the Code or a plan subject to
any
provisions under any federal, state, local, non-U.S. or other laws or
regulations that are substantively similar to the foregoing provisions of ERISA
or the Code (“Similar Law”) (collectively, a “Plan”), and is not directly or
indirectly acquiring the Class R Certificate for, on behalf of, or with any
assets of any such Plan, or (B) solely in the case of ERISA-Restricted
Certificates (I) if the Certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation as set forth in Exhibit H that such transferee
is
an insurance company that is acquiring the Certificate with assets contained
in
an “insurance company general account,” as defined in Section V(e) of Prohibited
Transaction Class Exemption (“PTCE”) 95-60, and the acquisition and holding of
the Certificate are covered and exempt under Sections I and III of PTCE 95-60,
or (II) solely in the case of an ERISA-Restricted Certificate that is a
Definitive Certificate, an Opinion of Counsel satisfactory to the Trustee,
the
Certificate Registrar and the Depositor, and upon which the Trustee, the
Certificate Registrar and the Depositor shall be entitled to rely, to the effect
that the acquisition and holding of such Certificate will not constitute or
result in a nonexempt prohibited transaction under ERISA or the Code, or a
violation of Similar Law, and will not subject the Trustee, the Certificate
Registrar, the Master Servicer or the Depositor to any obligation in addition
to
those expressly undertaken in this Agreement, which Opinion of Counsel shall
not
be an expense of the Trustee, the Certificate Registrar, the Master Servicer
or
the Depositor.
Except
in
the case of a Definitive Certificate, the representations set forth in the
immediately preceding paragraph, other than clause (B)(II) in the immediately
preceding paragraph, shall be deemed to have been made to the Trustee, the
Certificate Registrar and the Depositor by the transferee’s acceptance of an
ERISA-Restricted Certificate or a Residual Certificate (or the acceptance by
a
Certificate Owner of the beneficial interest in any Class of ERISA-Restricted
Certificates or a Residual Certificate). The Trustee, the Certificate Registrar
and the Depositor shall not have any obligation to monitor transfers of
Book-Entry Certificates or Restricted Global Securities that are
ERISA-Restricted Certificates or Residual Certificates or any liability for
transfers of such Certificates in violation of the transfer
restrictions.
59
Notwithstanding
any other provision herein to the contrary, any purported transfer of an
ERISA-Restricted Certificate or Residual Certificate to or on behalf of a Plan
without the delivery to the Trustee, the Certificate Registrar and the Depositor
of a representation or an Opinion of Counsel satisfactory to the Trustee (or
its
custodian), the Certificate Registrar and the Depositor as described above
shall
be void and of no effect. The Trustee, the Certificate Registrar and the
Depositor shall not have any liability to any Person for any registration or
transfer of any ERISA-Restricted Certificate or Residual Certificate that is
in
fact not permitted by this Section 3.03(d) and the Trustee, the Certificate
Registrar and the Depositor shall not have any liability for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Trustee in accordance with the foregoing
requirements. The Trustee, the Certificate Registrar and the Depositor shall
be
entitled, but not obligated, to recover from any Holder of any ERISA-Restricted
Certificate or Residual Certificate that was in fact a Plan and that held such
Certificate in violation of this Section 3.03(d) all payments made on such
ERISA-Restricted Certificate at and after the time it commenced such holding.
Any such payments so recovered shall be paid and delivered to the last preceding
Holder of such Certificate that is not a Plan.
(e) As
a condition of the registration of transfer or exchange of any Certificate,
the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however, that the Certificate Registrar shall have no obligation to require
such
payment or to determine whether or not any such tax or charge may be applicable.
No service charge shall be made to the Certificateholder for any registration,
transfer or exchange of Certificate.
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless, in the case of clause (ii), such person is (A) not a Non-U.S. Person
or
(B) is a Non-U.S. Person that holds a Residual Certificate in connection with
the conduct of a trade or business within the United States and has furnished
the transferor and the Trustee with an effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the Code
(any
such person who is not covered by clause (A) or (B) above is referred to herein
as a “Non-permitted Foreign Holder”).
60
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Trustee or the Certificate Registrar an affidavit in substantially the
form
attached hereto as Exhibit D-1 representing and warranting, among other things,
that such transferee is neither a Disqualified Organization, an agent or nominee
acting on behalf of a Disqualified Organization, nor a Non-permitted Foreign
Holder (any such transferee, a “Permitted Transferee”), and the proposed
transferor shall deliver to the Trustee an affidavit in substantially the form
attached hereto as Exhibit D-2. In addition, the Trustee or the Certificate
Registrar may (but shall have no obligation to) require, prior to and as a
condition of any such transfer, the delivery by the proposed transferee of
an
Opinion of Counsel, addressed to the Depositor, the Trustee and the Certificate
Registrar satisfactory in form and substance to the Depositor, that such
proposed transferee or, if the proposed transferee is an agent or nominee,
the
proposed beneficial owner, is not a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder. Notwithstanding the registration
in
the Certificate Register of any transfer, sale, or other disposition of a
Residual Certificate to a Disqualified Organization, an agent or nominee
thereof, or Non-permitted Foreign Holder, such registration shall be deemed
to
be of no legal force or effect whatsoever and such Disqualified Organization,
agent or nominee thereof, or Non-permitted Foreign Holder shall not be deemed
to
be a Certificateholder for any purpose hereunder, including, but not limited
to,
the receipt of distributions on such Residual Certificate. Neither the Trustee
nor the Certificate Registrar shall be under any liability to any person for
any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder or
for
the maturity of any payments due on such Residual Certificate to the Holder
thereof or for taking any other action with respect to such Holder under the
provisions of the Agreement, so long as the transfer was effected in accordance
with this Section 3.03(f), unless the Trustee or the Certificate Registrar
shall
have actual knowledge at the time of such transfer or the time of such payment
or other action that the transferee is a Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder. The Trustee or the Certificate
Registrar shall be entitled to recover from any Holder of a Residual Certificate
that was a Disqualified Organization, agent or nominee thereof, or Non-permitted
Foreign Holder at the time it became a Holder or any subsequent time it became
a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder, all payments made on such Residual Certificate at and after either
such
times (and all costs and expenses, including but not limited to attorneys’ fees,
incurred in connection therewith). Any payment (not including any such costs
and
expenses) so recovered by the Trustee or the Certificate Registrar shall be
paid
and delivered to the last preceding Holder of such Residual
Certificate.
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt of
written notice to the Trustee or the Certificate Registrar that the registration
of transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored
to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. Neither the Trustee nor the Certificate
Registrar shall be under any liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this Section
3.03(f), for making any payment due on such Certificate to the registered Holder
thereof or for taking any other action with respect to such Holder under the
provisions of this Agreement so long as the transfer was registered upon receipt
of the affidavit described in the preceding paragraph of this Section
3.03(f).
(g) Each
Holder of a Residual Certificate, by such Holder’s acceptance thereof, shall be
deemed for all purposes to have consented to the provisions of this
section.
61
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any of the Class B5-I, Class B6-I, Class B7-I, Class B5-II, Class B6-II or
Class
B7-II Certificates remains outstanding and is held by or on behalf of DTC,
transfers of a Global Security representing any such Certificates, in whole
or
in part, shall only be made in accordance with Section 3.01 and this Section
3.03(h).
(A) Subject
to clauses (B) and (C) of this Section 3.03(h), transfers of a Global Security
representing any of the Class B5-I, Class B6-I, Class B7-I, Class B5-II, Class
B6-II or Class B7-II or Certificates shall be limited to transfers of such
Global Security, in whole or in part, to nominees of DTC or to a successor
of
DTC or such successor’s nominee.
(B) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited with
or on behalf of DTC wishes at any time to exchange its interest in such
Restricted Global Security for an interest in a Regulation S Global Security,
or
to transfer its interest in such Restricted Global Security to a Person who
wishes to take delivery thereof in the form of an interest in a Regulation
S
Global Security, such holder, provided such holder is not a U.S. person, may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in the Regulation S Global
Security. Upon receipt by the Certificate Registrar, of (I) instructions from
DTC directing the Certificate Registrar, to be credited a beneficial interest
in
a Regulation S Global Security in an amount equal to the beneficial interest
in
such Restricted Global Security to be exchanged but not less than the minimum
denomination applicable to such holder’s Certificates held through a Regulation
S Global Security, (II) a written order given in accordance with DTC’s
procedures containing information regarding the participant account of DTC
and,
in the case of a transfer pursuant to and in accordance with Regulation S,
the
Euroclear or Clearstream account to be credited with such increase and (III)
a
certificate in the form of Exhibit L-1 hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such interest
has
been made in compliance with the transfer restrictions applicable to the Global
Securities, including that the holder is not a U.S. person, and pursuant to
and
in accordance with Regulation S, the Certificate Registrar, shall reduce the
principal amount of the Restricted Global Security and increase the principal
amount of the Regulation S Global Security by the aggregate principal amount
of
the beneficial interest in the Restricted Global Security to be exchanged,
and
shall instruct Euroclear or Clearstream, as applicable, concurrently with such
reduction, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation S Global
Security equal to the reduction in the principal amount of the Restricted Global
Security.
62
(C) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of DTC wishes at any time to transfer its interest in such
Regulation S Global Security to a Person who wishes to take delivery thereof
in
the form of an interest in a Restricted Global Security, such holder may,
subject to the rules and procedures DTC, exchange or cause the exchange of
such
interest for an equivalent beneficial interest in a Restricted Global Security.
Upon receipt by the Certificate Registrar, of (I) instructions from DTC
directing the Certificate Registrar, to cause to be credited a beneficial
interest in a Restricted Global Security in an amount equal to the beneficial
interest in such Regulation S Global Security to be exchanged but not less
than
the minimum denomination applicable to such holder’s Certificates held through a
Restricted Global Security, to be exchanged, such instructions to contain
information regarding the participant account with DTC to be credited with
such
increase, and (II) a certificate in the form of Exhibit L-2 hereto given by
the
holder of such beneficial interest and stating, among other things, that the
Person transferring such interest in such Regulation S Global Security
reasonably believes that the Person acquiring such interest in a Restricted
Global Security is a QIB, is obtaining such beneficial interest in a transaction
meeting the requirements of Rule 144A and in accordance with any applicable
securities laws of any State of the United States or any other jurisdiction,
then the Certificate Registrar, will reduce the principal amount of the
Regulation S Global Security and increase the principal amount of the Restricted
Global Security by the aggregate principal amount of the beneficial interest
in
the Regulation S Global Security to be transferred and the Certificate
Registrar, shall instruct DTC, concurrently with such reduction, to credit
or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Restricted Global Security equal to the reduction
in the principal amount of the Regulation S Global Security.
(D) Other
Exchanges.
In the
event that a Global Security is exchanged for Certificates in definitive
registered form without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in accordance with
such
procedures as are substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply with
Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to Non-U.S.
Persons in compliance with Regulation S under the Act, as the case may be),
and
as may be from time to time adopted by the Certificate Registrar.
(E) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 3.03(h)(C).
|
Section
3.04.
|
Cancellation
of Certificates.
|
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with normal retention policies with respect
to cancelled certificates maintained by the Trustee or the Certificate
Registrar.
63
|
Section
3.05.
|
Replacement
of Certificates.
|
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee or the Authenticating Agent
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Depositor and any Authenticating
Agent that such destroyed, lost or stolen Certificate has been acquired by
a
bona fide purchaser, the Trustee shall execute and the Trustee or any
Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee or the Authenticating Agent) connected
therewith. Any replacement Certificate issued pursuant to this Section 3.05
shall constitute complete and indefeasible evidence of ownership in the
applicable Trust Fund, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
|
Section
3.06.
|
Persons
Deemed Owners.
|
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Securities Administrator, the Master Servicer, the Trustee,
the
Certificate Registrar and any agent of any of them may treat the Person in
whose
name any Certificate is registered upon the books of the Certificate Registrar
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Sections 5.01 and 5.02 and for all other purposes whatsoever, and
neither the Depositor, the Securities Administrator, the Master Servicer, the
Trustee, the Certificate Registrar nor any agent of any of them shall be
affected by notice to the contrary.
|
Section
3.07.
|
Temporary
Certificates.
|
(a) Pending
the preparation of Definitive Certificates, upon the order of the Depositor,
the
Trustee shall execute and the Trustee or the Authenticating Agent shall
authenticate and deliver temporary Certificates that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Certificates in lieu of which
they
are issued and with such variations as the authorized officers executing such
Certificates may determine, as evidenced by their execution of such
Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause Definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
Definitive Certificates, the temporary Certificates shall be exchangeable for
Definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Certificate Registrar without charge to the Holder.
Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute and the Authenticating Agent shall authenticate and
deliver in exchange therefore a like aggregate Certificate Principal Amount
of
Definitive Certificates of the same Class in the authorized denominations.
Until
so exchanged, the temporary Certificates shall in all respects be entitled
to
the same benefits under this Agreement as Definitive Certificates of the same
Class.
64
|
Section
3.08.
|
Appointment
of Paying Agent.
|
The
Trustee may appoint a Paying Agent (which may be the Trustee) for the purpose
of
making distributions to Certificateholders hereunder. The Securities
Administrator is hereby appointed, and hereby accepts its appointment as Paying
Agent in respect of the Certificates. The Trustee shall cause such Paying Agent
(if other than the Trustee) to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee that such Paying Agent
will hold all sums held by it for the payment to Certificateholders in an
Eligible Account in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to the Certificateholders. All funds
remitted by the Trustee to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date
and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee. If the Paying Agent is not the Trustee, the Trustee shall cause to
be
remitted to the Paying Agent on or before the Business Day prior to each
Distribution Date, by wire transfer in immediately available funds, the funds
to
be distributed on such Distribution Date. Any Paying Agent shall be either
a
bank or trust company or otherwise authorized under law to exercise corporate
trust powers. To the extent that the Paying Agent is a Person not otherwise
already subject to the reporting obligations under Regulation AB with respect
to
the Trust Fund, such Person shall comply with such obligations in form and
substance similar to those of the Securities Administrator pursuant to Sections
6.01, 6.23 and 9.25 and 9.26.
|
Section
3.09.
|
Book-Entry
Certificates.
|
(a) Each
Class of Book-Entry Certificates, upon original issuance, shall be issued in
the
form of one or more typewritten Certificates representing the Book-Entry
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Depositor. The Book-Entry Certificates
shall initially be registered on the Certificate Register in the name of the
nominee of the Clearing Agency, and no Certificate Owner will receive a
Definitive Certificate representing such Certificate Owner’s interest in the
Book-Entry Certificates, except as provided in Section 3.09(c). Unless
Definitive Certificates have been issued to Certificate Owners of Book-Entry
Certificates pursuant to Section 3.09(c):
(i) the
provisions of this Section 3.09 shall be in full force and effect;
(ii) the
Depositor, the Securities Administrator, the Master Servicer, the Paying Agent,
the Certificate Registrar and the Trustee may deal with the Clearing Agency
for
all purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate Owners and
the Clearing Agency shall be responsible for crediting the amount of such
distributions to the accounts of such Persons entitled thereto, in accordance
with the Clearing Agency’s normal procedures;
65
(iii) to
the extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever
notice or other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give all
such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
(c) If
(i) (A) the Depositor advises the Certificate Registrar in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after
the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class
of Book-Entry Certificates identified as such to the Trustee by an Officer’s
Certificate from the Clearing Agency advise the Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation of
a
book-entry system through the Clearing Agency is no longer in the best interests
of the Certificate Owners of a Class of Book-Entry Certificates, the Trustee
shall notify or cause the Certificate Registrar to notify the Clearing Agency
to
effect notification to all Certificate Owners, through the Clearing Agency,
of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Book-Entry Certificates by the Clearing Agency, accompanied
by
registration instructions from the Clearing Agency for registration, the Trustee
shall issue the Definitive Certificates. Neither the Depositor nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Trustee, to the extent
applicable, with respect to such Definitive Certificates and the Trustee shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder.
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
|
Section
4.01.
|
Collection
Account.
|
66
(a) On
the Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled “Aurora
Loan Services LLC, as Master Servicer, in trust for the benefit of the Holders
of Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2006-3.” The Collection Account shall relate solely to the
Certificates issued by the Trust Fund hereunder, and funds in such Collection
Account shall not be commingled with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 30 days and transfer
all funds on deposit in such existing Collection Account into such new
Collection Account.
(c) The
Master Servicer shall give to the Trustee and the Securities Administrator
prior
written notice of the name and address of the depository institution at which
the Collection Account is maintained and the account number of such Collection
Account. No later than 1:00 p.m. New York City time on each Deposit Date, the
entire amount on deposit in the Collection Account (subject to permitted
withdrawals set forth in Section 4.02), not including any amounts which are
to
be excluded from the Available Distribution Amount for such Distribution Date
pursuant to clauses (A) through (H) of paragraph (i) of the definition thereof
(other than any amounts due or reimbursable to the Trustee, the Custodians
or
the Securities Administrator pursuant to this Agreement), shall be remitted
to
the Securities Administrator for deposit into the Certificate Account by wire
transfer in immediately available funds. The Master Servicer, at its option,
may
choose to make daily remittances from the Collection Account to the Securities
Administrator for deposit into the Certificate Account.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than the second Business Day following the Closing Date,
any
amounts representing Scheduled Payments on the Mortgage Loans due after the
Cut-off Date and received by the Master Servicer on or before the Closing Date.
Thereafter, the Master Servicer shall deposit or cause to be deposited in the
Collection Account on the earlier of the applicable Remittance Date and two
Business Days following receipt thereof, the following amounts received or
payments made by it (other than in respect of principal of and interest on
the
Mortgage Loans due on or before the Cut-Off Date):
(i) all
payments on account of principal, including Principal Prepayments and late
collections, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans (other than payments
due
prior to the Cut-off Date), net of the applicable Servicing Fee and Master
Servicing Fee with respect to each such Mortgage Loan, but only to the extent
of
the amount permitted to be withdrawn or withheld from the Collection Account
in
accordance with Sections 5.04 and 9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including any Subsequent Recovery,
all Net Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation of any
REO
Property, net of any unpaid Servicing Fees and Master Servicing Fees with
respect to such Mortgage Loans, but only to the extent of the amount permitted
to be withdrawn or withheld from the Collection Account in accordance with
Sections 5.04 and 9.21;
67
(iv) all
Insurance Proceeds;
(v) all
Advances made by the Master Servicer or the applicable Servicer pursuant to
Section 5.04 or the applicable Servicing Agreement;
(vi) all
Prepayment Penalty Amounts; and
(vii) all
proceeds of any Mortgage Loan purchased by any Person.
(e) Funds
in the Collection Account may be invested in Eligible Investments (selected
by
and at the written direction of the Master Servicer) which shall mature not
later than one Business Day prior to the Deposit Date (except that if such
Eligible Investment is an obligation of the Trustee or the Paying Agent, if
other than the Trustee, and such Collection Account is maintained with the
Trustee or the Paying Agent, if other than the Trustee, then such Eligible
Investment shall mature not later than such applicable Deposit Date), and any
such Eligible Investment shall not be sold or disposed of prior to its maturity.
All such Eligible Investments shall be made in the name of the Master Servicer
in trust for the benefit of the Trustee and Holders of Structured Adjustable
Rate Mortgage Loan Trust, Mortgage Pass-Through Certificates, Series 2006-3.
All
income and gain realized from any such investment shall be for the benefit
of
the Master Servicer, while such Collection Account is maintained by the Master
Servicer, and shall be subject to its withdrawal or order from time to time
and
shall not be part of the Trust Fund. The amount of any losses incurred in
respect of any such investments shall be deposited in such Collection Account
by
the Master Servicer out of its own funds, without any right of reimbursement
therefor, immediately as realized. The foregoing requirements for deposit in
the
Collection Account are exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments of interest on funds in
the
Collection Account and payments in the nature of late payment charges or
assumption fees need not be deposited by the Master Servicer in the Collection
Account and may be retained by the Master Servicer or the applicable Servicer
as
additional servicing compensation. If the Master Servicer deposits in the
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from such Collection Account.
|
Section
4.02.
|
Application
of Funds in the Collection Account.
|
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to
reimburse itself or any Servicer for Advances made by it or by such Servicer
pursuant to Section 5.04 or the applicable Servicing Agreement; the Master
Servicer’s right to reimburse itself pursuant to this subclause (i) is limited
to amounts received on or in respect of particular Mortgage Loans (including,
for this purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related Mortgage) which
represent late recoveries (net of the applicable Servicing Fee and the Master
Servicing Fee) of payments of principal or interest respecting which any such
Advance was made, it being understood, in the case of any such reimbursement,
that the Master Servicer’s or Servicer’s right thereto shall be prior to the
rights of the Certificateholders;
68
(ii) to
reimburse itself or any Servicer for any Advances or Servicing Advances made
by
it or by such Servicer that it or such Servicer determines in good faith will
not be recoverable from amounts representing late recoveries of payments of
principal or interest respecting the particular Mortgage Loan as to which such
Advance or Servicing Advance was made or from Liquidation Proceeds or Insurance
Proceeds with respect to such Mortgage Loan, it being understood, in the case
of
any such reimbursement, that such Master Servicer’s or Servicer’s right thereto
shall be prior to the rights of the Certificateholders;
(iii) to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Sections 9.20 and 9.22(a)
or
the applicable Servicing Agreement in good faith in connection with the
restoration of damaged property and, to the extent that Liquidation Proceeds
after such reimbursement exceed the unpaid principal balance of the related
Mortgage Loan, together with accrued and unpaid interest thereon at the
applicable Mortgage Rate less the applicable Servicing Fee and the Master
Servicing Fee for such Mortgage Loan to the Due Date next succeeding the date
of
its receipt of such Liquidation Proceeds, to pay to itself out of such excess
the amount of any unpaid assumption fees, late payment charges or other
Mortgagor charges on the related Mortgage Loan and to retain any excess
remaining thereafter as additional servicing compensation, it being understood,
in the case of any such reimbursement or payment, that such Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
(iv) in
the event it has elected not to pay itself the Master Servicing Fee out of
any
Mortgagor payment on account of interest or other recovery with respect to
a
particular Mortgage Loan prior to the deposit of such Mortgagor payment or
recovery in the Collection Account, to pay to itself the Master Servicing Fee
for each Distribution Date and any unpaid Master Servicing Fees for prior
Distribution Dates, as reduced pursuant to Section 5.05, from any Mortgagor
payment as to interest or such other recovery with respect to that Mortgage
Loan, as is permitted by this Agreement;
(v) to
reimburse itself or any Servicer for expenses incurred by and recoverable by
or
reimbursable to it or such Servicer pursuant to Section 9.04, 9.06, 9.16 or
9.22(a) or pursuant to the applicable Servicing Agreement (to the extent such
reimbursement constitutes “unanticipated expenses” within the meaning of
Treasury Regulation Section 1.860G-1(b)(3)(ii)), and to reimburse itself for
any
expenses reimbursable to it pursuant to Section 10.01(c);
69
(vi) to
pay to the applicable Person, with respect to each Mortgage Loan or REO Property
acquired in respect thereof that has been repurchased by such Person pursuant
to
this Agreement, all amounts received thereon and not distributed on the date
on
which the related repurchase was effected;
(vii) subject
to Section 5.04, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(viii) to
make payments to the Securities Administrator on each Deposit Date for deposit
into the Certificate Account in the amounts and in the manner provided for
in
Section 4.04;
(ix) to
make payment to itself, the Trustee and others pursuant to any provision of
this
Agreement and to reimburse the Custodian pursuant to the Custodial Agreement,
but only to the extent that the items reimbursed constitute “unanticipated
expenses” within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii);
(x) to
withdraw funds deposited in error in the Collection Account;
(xi) to
clear and terminate any Collection Account pursuant to Section
7.02;
(xii) to
reimburse a successor Master Servicer (solely in its capacity as successor
Master Servicer, including the Securities Administrator), for any fee or advance
occasioned by a termination of the Master Servicer, and the assumption of such
duties by the Securities Administrator or a successor Master Servicer appointed
by the Securities Administrator pursuant to Section 6.14, in each case to the
extent not reimbursed by the terminated Master Servicer, it being understood,
in
the case of any such reimbursement or payment, that the right of the Master
Servicer or the Securities Administrator thereto shall be prior to the rights
of
the Certificateholders; and
(xiii) to
reimburse any Servicer for such amounts as are due thereto under the applicable
Servicing Agreement and have not been retained by or paid to such Servicer
to
the extent provided in such Servicing Agreement provided such amounts are
Servicing Fees or “unanticipated expenses” within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii).
If
provided in the related Servicing Agreement, each Servicer shall be entitled
to
retain as additional servicing compensation any Prepayment Interest Excess
(to
the extent not offset by Prepayment Interest Shortfalls). The Servicers of
the
Participations shall be entitled to retain as additional servicing compensation
any Prepayment Penalty Amounts received with respect to the
Participations.
In
connection with withdrawals pursuant to subclauses (i), (iii), (iv) and (vi)
above, the Master Servicer’s or Servicer’s entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan. The Master
Servicer shall therefore keep and maintain a separate accounting for each
Mortgage Loan it master services for the purpose of justifying any withdrawal
from the Collection Account it maintains pursuant to such subclause (i), (iii),
(iv) and (vi).
70
In
the
event that the Master Servicer fails on any Deposit Date to remit to the
Securities Administrator any amounts required to be so remitted to the
Securities Administrator pursuant to sub-clause (viii) by such date, the
Master Servicer shall pay the Securities Administrator, for the account of
the
Securities Administrator, interest calculated at the “prime rate” (as published
in the “Money Rates” section of The
Wall Street Journal)
on such
amounts not timely remitted for the period from and including that Deposit
Date
to but not including the related Distribution Date. The Master Servicer shall
only be required to pay the Securities Administrator interest for the actual
number of days such amounts are not timely remitted (e.g.,
one
day’s interest, if such amounts are remitted one day after the Deposit
Date).
|
Section
4.03.
|
Reports
to Certificateholders.
|
(a) On
each Distribution Date, the Securities Administrator shall have prepared (based
on information provided by the Master Servicer) and shall make available to
the
Trustee and each Certificateholder a written report setting forth the following
information, by Mortgage Pool and Certificate Group (on the basis of Mortgage
Loan level information obtained from the applicable Servicer and the Master
Servicer):
(i) the
aggregate amount of the distribution to be made on such Distribution Date to
the
Holders of each Class of Certificates, other than any Class of Notional
Certificates, to the extent applicable, allocable to principal on the Mortgage
Loans, including any Subsequent Recovery, Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled principal
payments and unscheduled payments in the nature of principal in each Mortgage
Pool;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date to
the
Holders of each Class of Certificates allocable to interest, including any
Accrual Amount added to the Class Principal Amount of any Class of Accrual
Certificates;
(iii) the
amount, if any, of any distribution to the Holders of a Residual
Certificate;
(iv) (a) the
aggregate amount of any Advances required to be made as of the end if the month
immediately preceding the month in which such Distribution Date occurs by or
on
behalf of the Master Servicer or any Servicer (or, if applicable, the Securities
Administrator, solely in its capacity as successor Master Servicer) with respect
to such Distribution Date, (b)
the
aggregate amount of such Advances actually made, and (c)
the
amount, if any, by which (A) above exceeds (B) above;
(v) the
Aggregate Principal Balance of the Mortgage Loans and the Pool Balance of each
Mortgage Pool for such Distribution Date, after giving effect to payments
allocated to principal reported under clause (i) above;
(vi) the
Class Principal Amount (or Class Notional Amount) of each Class of Certificates,
to the extent applicable, as of such Distribution Date after giving effect
to
payments allocated to principal reported under clause (i) above (and to the
addition of any Accrual Amount in the case of any Class of Accrual
Certificates), separately identifying any reduction of any of the foregoing
Certificate Principal Amounts due to Realized Losses;
71
(vii) any
Realized Losses realized with respect to the Mortgage Loans (x) in the
applicable Prepayment Period and (y) in the aggregate since the Cut-off Date,
stating separately the amount of Special Hazard Losses, Fraud Losses and
Bankruptcy Losses and the aggregate amount of such Realized Losses, and the
remaining Special Hazard Loss Amount, Fraud Loss Amount and Bankruptcy Loss
Amount;
(viii) the
amount of the Master Servicing Fees, Servicing Fees and Securities Administrator
Fee paid during the Due Period to which such distribution relates;
(ix) the
number and aggregate Scheduled Principal Balance of Mortgage Loans, as reported
to the Securities Administrator by the Master Servicer, (a) remaining
outstanding, (b) delinquent one month, (c) delinquent two months, (d) delinquent
three or more months and (e) as to which foreclosure proceedings have been
commenced as of the close of business on the last Business Day of the calendar
month immediately preceding the month in which such Distribution Date
occurs;
(x) the
delinquency method (MBA) that is used to calculate the information provided
under (ix) above;
(xi) the
deemed aggregate principal balance of all REO Properties as of the close of
business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs; with respect to substitution
of Mortgage Loans in the preceding calendar month, the aggregate Scheduled
Principal Balance of all such Deleted Mortgage Loans, and of all Qualifying
Substitute Mortgage Loans;
(xii) the
aggregate outstanding Interest Shortfalls and Net Prepayment Interest
Shortfalls, if any, for each Class of Certificates, after giving effect to
the
distribution made on such Distribution Date;
(xiii) the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates; and
(xiv) if
applicable, the amount of any shortfall (i.e., the difference between the
aggregate amounts of principal and interest which Certificateholders would
have
received if there were sufficient available amounts in the Certificate Account
and the amounts actually distributed).
In
the
case of information furnished pursuant to subclauses (i), (ii) and (viii) above,
the amounts shall be expressed as a dollar amount per $1,000 of original
principal amount of Certificates.
In
addition to the information listed above, such Distribution Date report shall
also include such other information as is required by Form 10-D, including,
but
not limited to, the information required by Item 1121 (§ 229.1121) of Regulation
AB.
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The
Securities Administrator shall make such report and additional loan level
information (and, at its option, any additional files provided by the Master
Servicer containing the same information in an alternative format) available
each month to the Trustee, Certificateholders and the Rating Agencies via the
Securities Administrator’s internet website. The Securities Administrator’s
internet website shall initially be located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇. Assistance
in
using the website can be obtained by calling the Securities Administrator’s
customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Such parties that are unable to use
the
website are entitled to have a paper copy mailed to them via first class mail
by
calling the customer service desk and indicating such. The Securities
Administrator shall have the right to change the way such statements are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes.
The
foregoing information and reports shall be prepared and determined by the
Securities Administrator based solely on Mortgage Loan data provided to the
Securities Administrator by the Master Servicer (in a format agreed to by the
Securities Administrator and the Master Servicer) no later than four Business
Days prior to the Distribution Date. In preparing or furnishing the Mortgage
Loan data to the Securities Administrator, the Master Servicer shall be entitled
to rely conclusively on the accuracy of the information or data regarding the
Mortgage Loans and the related REO Property that has been provided to the Master
Servicer by each Servicer, and the Master Servicer shall not be obligated to
verify, recompute, reconcile or recalculate any such information or data. The
Securities Administrator shall be entitled to conclusively rely on the Mortgage
Loan data provided by the Master Servicer and shall have no liability for any
errors in such Mortgage Loan data or other information.
On
each
Distribution Date, in the event the above referenced Securities Administrator’s
Internet web site is not accessible to the Depositor, the Securities
Administrator shall also provide or make available to the Depositor a copy
of
the above described written report, to the following address: ▇▇▇▇▇▇ Brothers
Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or to such other address as the Depositor may
designate.
(b) Upon
the reasonable advance written request of any Certificateholder that is a
savings and loan, bank or insurance company, which request, if received by
the
Trustee or the Securities Administrator, will be promptly forwarded to the
Master Servicer, the Master Servicer shall provide, or cause to be provided,
(or, to the extent that such information or documentation is not required to
be
provided by a Servicer under the applicable Servicing Agreement, shall use
reasonable efforts to obtain such information and documentation from such
Servicer, and provide) to such Certificateholder such reports and access to
information and documentation regarding the Mortgage Loans as such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to investment in the Certificates; provided,
however, that the Master Servicer shall be entitled to be reimbursed by such
Certificateholder for such Master Servicer’s actual expenses incurred in
providing such reports and access.
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(c) Within
90 days, or such shorter period as may be required by statute or regulation,
after the end of each calendar year, the Securities Administrator shall have
prepared and shall make available, upon written request, to each Person who
at
any time during the calendar year was a Certificateholder of record, and make
available to Certificate Owners (identified as such by the Clearing Agency)
in
accordance with applicable regulations, a report summarizing the items provided
to Certificateholders pursuant to Section 4.03(a) on an annual basis as may
be
required to enable such Holders to prepare their federal income tax returns.
Such information shall include the amount of original issue discount accrued
on
each Class of Certificates and information regarding the expenses of the Trust
Fund. The Securities Administrator shall be deemed to have satisfied this
requirement if it forwards such information in any other format permitted by
the
Code. The Master Servicer shall provide the Securities Administrator with such
Mortgage Loan level information as is necessary for the Securities Administrator
to prepare such reports.
|
Section
4.04.
|
Certificate
Account.
|
(a) The
Securities Administrator shall establish and maintain in its name, as securities
administrator, a trust account (the “Certificate Account”), to be held in trust
for the benefit of the Certificateholders until disbursed pursuant to the terms
of this Agreement. The Certificate Account shall be an Eligible Account. If
the
existing Certificate Account ceases to be an Eligible Account, the Securities
Administrator shall establish a new Certificate Account that is an Eligible
Account within 20 Business Days and transfer all funds on deposit in such
existing Certificate Account into such new Certificate Account. The Certificate
Account shall relate solely to the Certificates issued hereunder and funds
in
the Certificate Account shall be held separate and apart from and shall not
be
commingled with any other monies including, without limitation, other monies
of
the Securities Administrator held under this Agreement.
(b) The
Securities Administrator shall cause to be deposited into the Certificate
Account on the day on which, or, if such day is not a Business Day, the Business
Day immediately following the day on which, any monies are remitted by the
Master Servicer to the Securities Administrator all such amounts. The Securities
Administrator shall make withdrawals from the Certificate Account only for
the
following purposes:
(i) to
withdraw amounts deposited in the Certificate Account in error;
(ii) to
pay itself the Securities Administrator Fee and any investment income earned
with respect to funds in the Certificate Account invested in Eligible
Investments as set forth in subsection (c) below, and to make payments to
itself, the Trustee and others prior to making distributions pursuant to Section
5.02 for any expenses or other indemnification owing to itself, the Trustee
and
others pursuant to any provision of this Agreement (to the extent payment of
such expenses or other indemnification constitutes “unanticipated expenses”
within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii));
(iii) to
make payments of the Master Servicing Fee (to the extent not already withheld
or
withdrawn from the Collection Account by the Master Servicer) to the Master
Servicer;
(iv) to
make distributions to the Certificateholders pursuant to Article V;
and
(v) to
clear and terminate the Certificate Account pursuant to Section
7.02.
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(c) The
Securities Administrator may invest, or cause to be invested, funds held in
the
Certificate Account, which funds, if invested, shall be invested in Eligible
Investments (which may be obligations of the Securities Administrator). All
such
investments must mature no later than the next Distribution Date, and shall
not
be sold or disposed of prior to their maturity. All such Eligible Investments
will be made in the name of the Securities Administrator (in its capacity as
such) or its nominee. All income and gain realized from any such investment
shall be paid to the Securities Administrator and shall be subject to its
withdrawal on order from time to time. The amount of any losses incurred in
respect of any such investments shall be paid by the Securities Administrator
for deposit in the Certificate Account out of its own funds, without any right
of reimbursement therefore, immediately as realized. Funds held in the
Certificate Account that are not invested shall be held in cash.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
|
Section
5.01.
|
Distributions
Generally.
|
(a) Subject
to Section 7.01 with respect to the final distribution on the Certificates,
on
each Distribution Date the Trustee or the Paying Agent shall make distributions
in accordance with this Article V. Such distributions shall be made by check
mailed to each Certificateholder’s address as it appears on the Certificate
Register of the Certificate Registrar or, upon written request made to the
Securities Administrator at least five Business Days prior to the related
Distribution Date to any Certificateholder, by wire transfer in immediately
available funds to an account specified in the request and at the expense of
such Certificateholder; provided, however, that the final distribution in
respect of any Certificate shall be made only upon presentation and surrender
of
such Certificate at the Corporate Trust Office. Wire transfers may be made
at
the expense of the Holder requesting such wire transfer by deducting a wire
transfer fee from the related distribution. Notwithstanding such final payment
of principal of any of the Certificates, each Residual Certificate will remain
outstanding until the termination of each REMIC and the payment in full of
all
other amounts due with respect to the Residual Certificate and at such time
such
final payment in retirement of the Residual Certificate will be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office
of
the Certificate Registrar. If any payment required to be made on the
Certificates is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day.
(b) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Certificate Principal Amounts (or initial Notional Amounts).
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
(a) On
each Distribution Date, the Securities Administrator (or any successor Paying
Agent on behalf of the Trustee) shall withdraw from the Certificate Account,
to
the extent of funds available therefore, the Available Distribution Amount
(excluding all Prepayment Penalty Amounts) with respect to each Mortgage Pool,
and shall distribute such amount in the following order of priority based on
the
report of the Securities Administrator:
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(i) the
payment of the Securities Administrator Fee for such Distribution
Date;
(ii) from
the Available Distribution Amount for each Mortgage Pool, to each Class of
Senior Certificates in the related Certificate Group, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such Class’s
allocable share of any Net Prepayment Interest Shortfalls for the related
Mortgage Pool for such Distribution Date; provided, however, that any shortfall
in available amounts for a Mortgage Pool shall be allocated among the Classes
of
the related Certificate Group in proportion to the amount of Accrued Certificate
Interest (as so reduced) that would otherwise be distributable
thereon;.
(iii) from
the remaining Available Distribution Amount for each Mortgage Pool, to each
Class of Senior Certificates in the related Certificate Group (reduced, in
each
case, by any Net Prepayment Interest Shortfalls for the related Mortgage Pool
allocated to that Class of Certificates in that Distribution Date, as described
herein), any related Interest Shortfall for such Distribution Date; provided,
however, that any shortfall in available amounts for each Mortgage Pool shall
be
allocated among the Classes of the related Certificate Group in proportion
to
the Interest Shortfall (as so reduced) for each such Class on such Distribution
Date;
(iv) from
the remaining Available Distribution Amount for each Mortgage Pool, to the
Senior Certificates (other than the Class 3-AX and Class 4-AX Certificates)
of
the related Certificate Group in reduction of the Class Principal Amounts
thereof, concurrently, as follows:
(A) to
the Class R and Class 1-A1 and Class 1-A2 Certificates from the Available
Distribution Amount for Pool 1, the Senior Principal Distribution Amount for
such Mortgage Pool, in reduction of their Class Principal Amounts, sequentially
as follows:
(I) first,
to the Class R Certificate, until its Class Principal Amount has been reduced
to
zero;
(II) second,
pro rata to the Class 1-A1 and Class 1-A2 Certificates, in reduction of their
Class Principal Amounts until their Class Principal Amounts have been reduced
to
zero:
(B) pro
rata, to the Class 2-A1 and Class 2-A2 Certificates, from the Available
Distribution Amount for Pool 2, the Senior Principal Distribution Amount for
such Mortgage Pool, in reduction of their Class Principal Amounts, until their
Class Principal Amounts have been reduced to zero;
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(C) to
the Class 3-A1, Class 3-A2 and Class 3-A3 Certificates from the Available
Distribution Amount for Pool 3 for such Distribution Date, the Senior Principal
Distribution Amount for such Mortgage Pool for such Distribution Date, in
reduction of their Class Principal Amounts, concurrently as
follows:
(a) to
the Class 3-A1 and Class 3-A2 Certificates, in that order, until their Class
Principal Amounts have been reduced to zero; and
(b) to
the Class 3-A3 Certificates until its Class Principal Amount has been reduced
to
zero;
(D) to
the Class 4-A Certificates from the Available Distribution Amount for Pool
4 for
such Distribution Date, the Senior Principal Distribution Amount for such
Mortgage Pool for such Distribution Date, in reduction of its Class Principal
Amount until its Class Principal Amount has been reduced to zero; and
(v) from
the remaining Available Distribution Amount for Mortgage Pools 1 through 3,
subject to the prior distribution of amounts pursuant to Section 5.02(f) in
the
case of clauses (C), (F), (I), (L), (O), (R) and (U) below, to the Group I
Subordinate Certificates, in the following order of priority:
(A) to
the Class B1-I Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(B) to
the Class B1-I Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(C) to
the Class B1-I Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(D) to
the Class B2-I Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(E) to
the Class B2-I Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(F) to
the Class B2-I Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
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(G) to
the Class B3-I Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(H) to
the Class B3-I Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(I) to
the Class B3-I Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(J) to
the Class B4-I Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(K) to
the Class B4-I Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(L) to
the Class B4-I Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(M) to
the Class B5-I Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(N) to
the Class B5-I Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(O) to
the Class B5-I Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
78
(P) to
the Class B6-I Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(Q) to
the Class B6-I Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(R) to
the Class B6-I Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(S) to
the Class B7-I Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(T) to
the Class B7-I Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(U) to
the Class B7-I Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to zero;
(vi) from
the remaining Available Distribution Amount for Mortgage Pool 4, subject to
the
prior distribution of amounts pursuant to Section 5.02(g) in the case of clauses
(C), (F), (I), (L), (O), (R) and (U) to the Group II Subordinate Certificates,
in the following order of priority:
(A) to
the Class B1-II Certificates, the Accrued Certificate Interest thereon for
such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date and as further reduced
by such Class’s allocable share of any Deferred Interest for such Distribution
Date;
(B) to
the Class B1-II Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(C) to
the Class B1-II Certificates, in reduction of the Class Principal Amount
thereof, such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
79
(D) to
the Class B2-II Certificates, the Accrued Certificate Interest thereon for
such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date and as further reduced
by such Class’s allocable share of any Deferred Interest for such Distribution
Date;
(E) to
the Class B2-II Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(F) to
the Class B2-II Certificates, in reduction of the Class Principal Amount
thereof, such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(G) to
the Class B3-II Certificates, the Accrued Certificate Interest thereon for
such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date and as further reduced
by such Class’s allocable share of any Deferred Interest for such Distribution
Date;
(H) to
the Class B3-II Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(I) to
the Class B3-II Certificates, in reduction of the Class Principal Amount
thereof, such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(J) to
the Class B4-II Certificates, the Accrued Certificate Interest thereon for
such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date and as further reduced
by such Class’s allocable share of any Deferred Interest for such Distribution
Date;
(K) to
the Class B4-II Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(L) to
the Class B4-II Certificates, in reduction of the Class Principal Amount
thereof, such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(M) to
the Class B5-II Certificates, the Accrued Certificate Interest thereon for
such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date and as further reduced
by such Class’s allocable share of any Deferred Interest for such Distribution
Date;
80
(N) to
the Class B5-II Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(O) to
the Class B5-II Certificates, in reduction of the Class Principal Amount
thereof, such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(P) to
the Class B6-II Certificates, the Accrued Certificate Interest thereon for
such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date and as further reduced
by such Class’s allocable share of any Deferred Interest for such Distribution
Date;
(Q) to
the Class B6-II Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(R) to
the Class B6-II Certificates, in reduction of the Class Principal Amount
thereof, such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero;
(S) to
the Class B7-II Certificates, the Accrued Certificate Interest thereon for
such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date and as further reduced
by such Class’s allocable share of any Deferred Interest for such Distribution
Date;
(T) to
the Class B7-II Certificates, any Interest Shortfall for such Class on such
Distribution Date; and
(U) to
the Class B7-II Certificates, in reduction of the Class Principal Amount
thereof, such Class’s Subordinate Class Percentage of each Subordinate Principal
Distribution Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been reduced to
zero.
(b) Net
Prepayment Interest Shortfalls for each Mortgage Pool shall be allocated among
the Certificates of the related Certificate Group and the Subordinate
Certificates related to the applicable Mortgage Group proportionately based
on
(i) in the case of the related Senior Certificates, the Accrued Certificate
Interest otherwise distributable thereon (without regard to reductions for
allocations of Deferred Interest), and (ii) in the case of the Group I
Subordinate Certificates and the Group II Subordinate Certificates, interest
accrued (at the Underlying Subordinate Rate for the relevant Mortgage Pool)
on
their related Apportioned Principal Balances.
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(c) (i)
if on any Distribution Date the Credit Support Percentage for the Class B1-I
Certificates is less than the Original Credit Support Percentage for such Class,
then, notwithstanding anything to the contrary in Section 5.02(a), no
distribution of amounts described in clauses (ii) and (iii) of the definition
of
Subordinate Principal Distribution Amount will be made in respect of the Class
B2-I, Class B3-I, Class B4-I, Class B5-I, Class B6-I or Class B7-I Certificates
on such Distribution Date; (ii) if on any Distribution Date the Credit Support
Percentage for the Class B2-I Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Class B3-I, Class B4-I, Class B5-I, Class B6-I
or
Class B7-I Certificates on such Distribution Date; (iii) if on any Distribution
Date the Credit Support Percentage for the Class B3-I Certificates is less
than
the Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B4-I, Class B5-I,
Class
B6-I or Class B7-I Certificates on such Distribution Date; (iv) if on any
Distribution Date the Credit Support Percentage for the Class B4-I Certificates
is less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of
amounts described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount will be made in respect of the Class B5-I, Class
B6-I or Class B7-I Certificates on such Distribution Date; (v) if on any
Distribution Date the Credit Support Percentage for the Class B5-I Certificates
is less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of
amounts described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount will be made in respect of the Class B6-I or
Class
B7-I Certificates on such Distribution Date; (vi) if on any Distribution Date
the Credit Support Percentage for the Class B6-I Certificates is less than
the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B7-I Certificates
on
such Distribution Date; (vii) if on any Distribution Date the Credit Support
Percentage for the Class B1-II Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Class B2-II, Class B3-II, Class B4-II, Class
B5-II, Class B6-II or Class B7-II Certificates on such Distribution Date; (viii)
if on any Distribution Date the Credit Support Percentage for the Class B2-II
Certificates is less than the Original Credit Support Percentage for such Class,
then, notwithstanding anything to the contrary in Section 5.02(a), no
distribution of amounts described in clauses (ii) and (iii) of the definition
of
Subordinate Principal Distribution Amount will be made in respect of the Class
B3-II, Class B4-II, Class B5-II, Class B6-II or Class B7-II Certificates on
such
Distribution Date; (ix) if on any Distribution Date the Credit Support
Percentage for the Class B3-II Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Class B4-II, Class B5-II, Class B6-II or Class
B7-II Certificates on such Distribution Date; (x) if on any Distribution Date
the Credit Support Percentage for the Class B4-II Certificates is less than
the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B5-II, Class B6-II
or
Class B7-II Certificates on such Distribution Date; (xi) if on any Distribution
Date the Credit Support Percentage for the Class B5-II Certificates is less
than
the Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B6-II or Class B7-II
Certificates on such Distribution Date; and (xii) if on any Distribution Date
the Credit Support Percentage for the Class B6-II Certificates is less than
the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B7-II Certificates
on
such Distribution Date.
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Any
amount not distributed in respect of any Class on any Distribution Date pursuant
to the immediately preceding paragraph will be allocated among the remaining
related Subordinate Classes in proportion to their respective Certificate
Principal Amounts.
(d) On
each Distribution Date, the Paying Agent shall distribute to the Holders of
the
Class P-I Certificates, any Prepayment Penalty Amounts paid by borrowers upon
voluntary full or partial prepayment of the Mortgage Loans in Pool 1, Pool
2 and
Pool 3. On each Distribution Date, the Paying Agent shall distribute to the
Holders of the Class P-II Certificates, any Prepayment Penalty Amounts paid
by
borrowers upon voluntary full or partial prepayment of the Mortgage Loans in
Pool 4.
(e) On
each Distribution Date, the Paying Agent shall distribute to the Holder of
the
Class R Certificate any Available Distribution Amount for each of the Mortgage
Pools remaining for such Distribution Date after application of all amounts
described in paragraph (a) through (d) of this Section 5.02. Any distributions
pursuant to this paragraph (e) shall not reduce the Class Principal Amount
of
the Class R Certificate.
(f) (2) On
each Distribution Date prior to the Credit Support Depletion Date but on or
after the date on which the aggregate Certificate Principal Amount of the Senior
Certificates of any Certificate Group (other than the Group 4 Certificates)
has
been reduced to zero, amounts otherwise distributable as principal on each
Class
of Group I Subordinate Certificates in accordance with the priorities set forth
in Section 5.02(a)(v), in reverse order of priority, in respect of such Class’s
Subordinate Class Percentage of the Subordinate Principal Distribution Amount
for the Mortgage Pool relating to such retired Senior Certificates, shall be
distributed as principal to the Senior Certificates (other than the Group 4
Certificates) remaining outstanding in accordance with the priorities set forth
in Sections 5.02(a)(iv), until the Class Principal Amounts thereof have been
reduced to zero, provided that on such Distribution Date (a) the Aggregate
Subordinate Percentage for such Distribution Date is less than 200% of the
Aggregate Subordinate Percentage as of the first Distribution Date or (b) the
average outstanding principal balance of the Mortgage Loans in Pool 1 (if the
aggregate Certificate Principal Amount of the Senior Certificates of any other
Certificate Group other than the Group 4 Certificates have been reduced to
zero), Pool 2 (if the aggregate Certificate Principal Amount of the Senior
Certificates of any other Certificate Group other than the Group 4 Certificates
have been reduced to zero) or Pool 3 (if the aggregate Certificate Principal
Amount of the Senior Certificates of any other Certificate Group other than
the
Group 4 Certificates have been reduced to zero), that are delinquent 60 days
or
more for the last six months as a percentage of the related Group Subordinate
Amount is greater than or equal to 50%. If the Senior Certificates of two or
more Certificate Groups (other than the Group 4 Certificates) remain
outstanding, the distributions described above will be made in proportion to
the
aggregate Certificate Principal Amount of such Senior Certificates of each
such
Certificate Group (other than the Group 4 Certificates).
83
(ii) On
any Distribution Date on which any Certificate Group (other than the Group
4
Certificates) constitutes an Undercollateralized Group, all amounts otherwise
distributable as principal on the Group I Subordinate Certificates, in reverse
order of priority (other than amounts necessary to pay unpaid Interest
Shortfalls) (or, following the Credit Support Depletion Date, such other amounts
described in the immediately following sentence), will be distributed as
principal to the Senior Certificates of such Undercollateralized Group in
accordance with the priorities set forth in Section 5.02(a)(iv), until the
aggregate Certificate Principal Amount of such Senior Certificates equals the
Pool Balance of the related Mortgage Pool (such distribution, an
“Undercollateralization Distribution”). In the event that any Certificate Group
(other than the Group 4 Certificates) constitutes an Undercollateralized Group
on any Distribution Date following the Credit Support Depletion Date,
Undercollateralization Distributions will be made from the excess of the
Available Distribution Amount for the other such Mortgage Pools not related
to
an Undercollateralized Group (other than Pool 4) remaining after all required
amounts have been distributed to the Senior Certificates of the other
Certificate Groups (other than the Group 4 Certificates). In addition, the
amount of any unpaid Interest Shortfalls with respect to an Undercollateralized
Group (other than the Group 4 Certificates) on any Distribution Date (including
any Interest Shortfalls for such Distribution Date) will be distributed to
the
Senior Certificates of such Undercollateralized Group prior to the payment
of
any Undercollateralization Distributions from amounts otherwise distributable
as
principal on the Group I Subordinate Certificates, in reverse order of priority
(or, following the Credit Support Depletion Date, as provided in the preceding
sentence). If more than one of the Certificate Groups (other than the Group
4
Certificates) is an Undercollateralized Group, the distributions described
above
will be made in proportion to the amount by which the aggregate Certificate
Principal Amount of the Senior Principal Amount of the Senior Certificates
of
each such Certificate Group exceeds the Pool Balance of the related Mortgage
Pool.
|
Section
5.03.
|
Allocation
of Realized Losses.
|
(a) (i)
On any Distribution Date, the principal portion of each Realized Loss (other
than any Excess Loss) in respect of a Mortgage Loan in Pools 1 through 3 shall
be allocated in the following order of priority:
first,
to the
Class B7-I Certificates, until the Class Principal Amount thereof has been
reduced to zero;
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second,
to the
Class B6-I Certificates, until the Class Principal Amount thereof has been
reduced to zero;
third,
to the
Class B5-I Certificates, until the Class Principal Amount thereof has been
reduced to zero;
fourth,
to the
Class B4-I Certificates, until the Class Principal Amount thereof has been
reduced to zero;
fifth,
to the
Class B3-I Certificates, until the Class Principal Amount thereof has been
reduced to zero;
sixth,
to the
Class B2-I Certificates, until the Class Principal Amount thereof has been
reduced to zero;
seventh,
to the
Class B1-I Certificates, until the Class Principal Amount thereof has been
reduced to zero; and
eighth,
to the
Classes of Senior Certificates of the related Certificate Group, pro
rata,
in
accordance with their Class Principal Amounts; provided, that any such loss
allocated to any Class of Accrual Certificates shall be allocated (subject
to
Section 5.03(c)) on the basis of the lesser of (x) the Class Principal Amount
thereof immediately prior to the applicable Distribution Date and (y) the Class
Principal Amount thereof on the Closing Date (as reduced by any Realized Losses
previously allocated thereto); provided, however, that any
Realized Losses otherwise allocable to the Class 1-A1 Certificates pursuant
to
this Section 5.03 shall be allocated to the Class 1-A2 Certificates until the
Class Principal Amount of such Class has been reduced to zero, any Realized
Losses otherwise allocable to the Class 2-A1 Certificates pursuant to this
Section 5.03 shall be allocated to the Class 2-A2 Certificates until the Class
Principal Amount of such Class has been reduced to zero
and any
Realized Losses otherwise allocable to the Class 3-A1 and Class 3-A2
Certificates pursuant to this Section 5.03 shall be allocated to the Class
3-A3
Certificates until the Class Principal Amount of such Class has been reduced
to
zero.
Notwithstanding
the foregoing, the first $0.98 of principal portion of Realized Losses in
Mortgage Group I shall not be allocated to any Class of
Certificates.
(ii) On
any Distribution Date, the principal portion of each Realized Loss (other than
any Excess Loss) in respect of a Mortgage Loans in Pools 4 shall be allocated
in
the following order of priority:
first,
to the
Class B7-II Certificates, until the Class Principal Amount thereof has been
reduced to zero;
second,
to the
Class B6-II Certificates, until the Class Principal Amount thereof has been
reduced to zero;
85
third,
to the
Class B5-II Certificates, until the Class Principal Amount thereof has been
reduced to zero;
fourth,
to the
Class B4-II Certificates, until the Class Principal Amount thereof has been
reduced to zero;
fifth,
to the
Class B3-II Certificates, until the Class Principal Amount thereof has been
reduced to zero;
sixth,
to the
Class B2-II Certificates, until the Class Principal Amount thereof has been
reduced to zero;
seventh,
to the
Class B1-II Certificates, until the Class Principal Amount thereof has been
reduced to zero; and
eighth,
to the
Group II Senior Certificates in accordance with their Class Principal Amount;
provided, that any such loss allocated to any Class of Accrual Certificates
shall be allocated (subject to Section 5.03(c)) on the basis of the lesser
of
(x) the Class Principal Amount thereof immediately prior to the applicable
Distribution Date and (y) the Class Principal Amount thereof on the Closing
Date
(as reduced by any Realized Losses previously allocated thereto).
Notwithstanding
the foregoing, the first $0.22 of principal portion of Realized Losses in
Mortgage Group II shall not be allocated to any Class of
Certificates.
(b) With
respect to any Distribution Date, the principal portion of any Excess Loss
in
respect of a Mortgage Loan shall be allocated, pro
rata,
to the
Senior Certificates of the related Certificate Group and, if such Mortgage
Loan
is in Mortgage Group I, to the Group I Subordinate Certificates on the basis
of
their Apportioned Principal Amounts, and, if such Mortgage Loan is in Mortgage
Group II, to the Classes of Group II Subordinate Certificates on the basis
of
their Apportioned Principal Balances; provided, that any such loss allocated
to
any Class of Accrual Certificates (and any Accrual Component) shall be allocated
(subject to Section
5.03(c)) on the basis of the lesser of (x) the Class Principal Amount thereof
immediately prior to the applicable Distribution Date and (y) the Class
Principal Amount thereof on the Closing Date (as reduced by any Realized Losses
previously allocated thereto).
(c) Any
Realized Losses allocated to a Class of Certificates pursuant to Section 5.03(a)
or (b) shall be allocated among the Certificates of such Class in proportion
to
their respective Certificate Principal Amounts or Component Principal Amounts
of
such Certificates. Any allocation of Realized Losses pursuant to this paragraph
(c) shall be accomplished by reducing the Certificate Principal Amount or
Component Principal Amount of the related Certificates on the related
Distribution Date in accordance with Section 5.03(d).
(d) Realized
Losses allocated in accordance with this Section 5.03 shall be allocated on
the
Distribution Date in the month following the month in which such loss was
incurred and, in the case of the principal portion thereof, after giving effect
to distributions made on such Distribution Date.
86
(e) On
each Distribution Date, amounts described in clauses (x) and (y) of the
definition of Subordinate Certificate Writedown Amount for such date shall
effect corresponding reductions (i) in the Class Principal Amount of the lowest
ranking Class of outstanding Group I Subordinate Certificates and (ii) in the
Class Principal Amount of the lowest ranking Class of outstanding Group II
Subordinate Certificates, which reductions shall occur on such Distribution
Date
after giving effect to distributions made on such Distribution
Date.
|
Section
5.04.
|
Advances
by the Master Servicer and the Securities Administrator.
|
(a) Advances
shall be made in respect of each Deposit Date as provided herein. If, on any
Determination Date, the Master Servicer determines that any Scheduled Payments
due during the related Due Period (other than Balloon Payments) have not been
received, the Master Servicer shall, or shall cause the applicable Servicer
to,
advance such amount on the Deposit Date immediately following such Determination
Date, less an amount, if any, to be set forth in an Officer’s Certificate to be
delivered to the Securities Administrator on such Determination Date, which
if
advanced the Master Servicer or such Servicer has determined would not be
recoverable from amounts received with respect to such Mortgage Loan, including
late payments, Liquidation Proceeds, Insurance Proceeds or otherwise. The
Securities Administrator shall be able to rely conclusively on any
non-recoverability determination made by the Master Servicer. If the Master
Servicer determines that an Advance is required, it shall on the Deposit Date
immediately following such Determination Date either (i) remit to the Securities
Administrator from its own funds (or funds advanced by the applicable Servicer)
for deposit in the Certificate Account immediately available funds in an amount
equal to such Advance, (ii) cause to be made an appropriate entry in the records
of the Collection Account that funds in such account being held for future
distribution or withdrawal have been, as permitted by this Section 5.04, used
by
the Master Servicer to make such Advance, and remit such immediately available
funds to the Securities Administrator for deposit in the Certificate Account
or
(iii) make Advances in the form of any combination of clauses (i) and (ii)
aggregating the amount of such Advance. Any funds being held in the Collection
Account for future distribution to Certificateholders and so used shall be
replaced by the Master Servicer from its own funds by remittance to the
Securities Administrator for deposit in the Certificate Account on or before
any
future Deposit Date to the extent that funds in the Certificate Account on
such
Deposit Date shall be less than payments to Certificateholders required to
be
made on the related Distribution Date. The Securities Administrator shall be
entitled to conclusively rely upon any determination by the Master Servicer
that
an Advance, if made, would constitute a non-recoverable advance. The Master
Servicer and each Servicer shall be entitled to be reimbursed from the
Collection Account for all Advances made by it as provided in Section
4.02.
(b) In
the event that the Master Servicer fails for any reason to make an Advance
required to be made pursuant to Section 5.04(a) on or before the Deposit Date,
the Securities Administrator, solely in its capacity as successor Master
Servicer pursuant to Section 6.14, shall, on or before the related Distribution
Date, deposit in the Certificate Account an amount equal to the excess of (a)
Advances required to be made by the Master Servicer or any Servicer that would
have been deposited in such Certificate Account over (b) the amount of any
Advance made by the Master Servicer or such Servicer with respect to such
Distribution Date; provided, however, that the Securities Administrator shall
be
required to make such Advance only if it is not prohibited by law from doing
so
and it has determined that such Advance would be recoverable from amounts to
be
received with respect to such Mortgage Loan, including late payments,
Liquidation Proceeds, Insurance Proceeds, or otherwise. The Securities
Administrator shall be entitled to be reimbursed from the Certificate Account
for Advances made by it pursuant to this Section 5.04 as if it were the Master
Servicer.
87
|
Section
5.05.
|
Compensating
Interest Payments.
|
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicers. Any Compensating Interest Payments made
by
the Servicers shall be a component of the Interest Remittance
Amount.
|
Section
5.06.
|
Funding
Account.
|
(a) No
later than the Closing Date, the Securities Administrator shall establish and
maintain a segregated trust account that is an Eligible Account, which shall
be
titled “Funding Account, ▇▇▇▇▇ Fargo Bank, N.A., as securities administrator, in
trust for the registered holders of Structured Adjustable Rate Mortgage Loan
Trust Mortgage Pass-Through Certificates Series 2006-3” (the “Funding Account”).
The Securities Administrator shall, promptly upon receipt, deposit in the
Funding Account and retain therein the Funding Amount remitted on the Closing
Date to the Securities Administrator by the Depositor. Funds deposited in the
Funding Account shall be held in trust by the Securities Administrator on behalf
of the Certificateholders for the uses and purposes set forth herein. On the
Distribution Date in April 2006, the Securities Administrator will withdraw
from
the Funding Account an amount equal to the Funding Amount. The Securities
Administrator shall pay the Funding Amount with respect to Pool 1 and Pool
4 to
the Certificateholders in accordance with the priorities set forth in Section
5.02 as if such amounts were included in the Available Distribution Amounts
of
Pool 1 and Pool 4; provided, however, that the Securities Administrator shall
not be entitled to any payment pursuant to Section 5.02(a)(i) with respect
to
the Funding Amount.
(b) The
Securities Administrator will invest funds deposited in the Funding Account
in
Eligible Investments as directed in writing by the Depositor (provided that
if
the Securities Administrator does not receive written direction from the
Depositor, the amounts in the Funding Account shall not be invested) with a
maturity date no later than the Business Day preceding the first Distribution
Date. For federal income tax purposes, the Depositor shall be the owner of
the
Funding Account and shall report all items of income, deduction, gain or loss
arising therefrom. At no time will the Funding Account be an asset of any of
the
REMICs provided for herein. All income and gain realized from investment of
funds deposited in the Funding Account shall be for the sole and exclusive
benefit of the Depositor and shall be remitted by the Securities Administrator
to the Depositor within eight (8) Business Days of the first Distribution Date.
The Depositor shall deposit in the Funding Account the amount of any net loss
incurred in respect of any such Eligible Investment immediately upon realization
of such loss.
(c) On
the Distribution Date in April 2006, any amounts remaining on deposit in the
Funding Account after withdrawals pursuant to paragraph (a) above shall be
withdrawn by the Securities Administrator and paid to the Depositor or its
designee and the Securities Administrator shall terminate the Funding Account
on
such first Distribution Date.
88
(d) For
purposes of computations throughout this Agreement (other than for purposes
of
computing any fee or the Net WAC of any Pool or portion thereof), (i) Pool
1
shall be deemed to include a certain Mortgage Loan with a Scheduled Principal
Balance as of the Cut-off Date of $92,000.00 that is prepaid in full on the
Closing Date such that its Scheduled Principal Balance for all Distribution
Dates is $0 and (ii) Pool 4 shall be deemed to include certain Mortgage Loans
with a Scheduled Principal Balance as of the Cut-off Date of $12,875,119.75
that
are prepaid in full on the Closing Date such that their Scheduled Principal
Balance for all Distribution Dates is $0.
ARTICLE
VI
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR;
EVENTS
OF
DEFAULT
|
Section
6.01.
|
Duties
of Trustee and Securities Administrator.
|
(a) The
Trustee, except during the continuance of an Event of Default (of which a
Responsible Officer of the Trustee shall have actual knowledge), and the
Securities Administrator undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement. Any permissive right of the
Trustee or the Securities Administrator provided for in this Agreement shall
not
be construed as a duty of the Trustee or the Securities Administrator. If an
Event of Default (of which a Responsible Officer of the Trustee or the
Securities Administrator shall have actual knowledge) has occurred and has
not
otherwise been cured or waived, the Trustee or the Securities Administrator
shall exercise such of the rights and powers vested in it by this Agreement
and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person’s
own affairs unless the Securities Administrator is acting as Master Servicer,
in
which case it shall use the same degree of care and skill as the Master Servicer
hereunder.
(b) Each
of the Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders
or
other instruments furnished to the Trustee or the Securities Administrator
which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are in the form required
by this Agreement; provided, however, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or content of
any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer, to the Trustee or the
Securities Administrator, as applicable, pursuant to this Agreement, and neither
the Trustee nor the Securities Administrator shall be required to recalculate
or
verify any numerical information furnished to the Trustee or the Securities
Administrator pursuant to this Agreement.
(c) Neither
the Trustee nor the Securities Administrator shall have any liability arising
out of or in connection with this Agreement, except for its negligence or
willful misconduct, except as may be otherwise expressly set forth herein.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however,
that:
89
(i) Neither
the Trustee nor the Securities Administrator shall be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith
in accordance with the consent or direction of Holders of Certificates as
provided in Section 6.18 hereof;
(ii) For
all purposes under this Agreement, the Trustee shall not be deemed to have
notice of any Event of Default unless a Responsible Officer of the Trustee
has
actual knowledge thereof or unless written notice of any event which is in
fact
such a default is received by the Trustee at the Corporate Trust Office, and
such notice references the Holders of the Certificates and this
Agreement;
(iii) For
all purposes under this Agreement, the Securities Administrator shall not be
deemed to have notice of any Event of Default (other than resulting from a
failure by the Master Servicer to remit funds or to furnish information to
the
Securities Administrator when required to do so) unless a Responsible Officer
of
the Securities Administrator has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Securities Administrator at the address provided in Section 11.07, and such
notice references the Holders of the Certificates and this Agreement;
and
(iv) With
respect to amounts that would be treated as “unanticipated expenses” within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii) if paid or reimbursed
by the REMICs hereunder, no provision of this Agreement shall require the
Trustee or the Securities Administrator to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee or the Securities Administrator to perform, or be responsible for
the manner of performance of, any of the obligations of the Master Servicer
under this Agreement except, with respect to the Securities Administrator,
during such time, if any, as the Securities Administrator shall be the successor
to, and be vested with the rights, duties, powers and privileges of, the Master
Servicer in accordance with the terms of this Agreement.
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided, however, that the Trustee
shall use its best efforts to remit to the Master Servicer upon receipt any
such
complaint, claim, demand, notice or other document (i) which is delivered to
the
Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer
has
actual knowledge, and (iii) which contains information sufficient to permit
the
Trustee to make a determination that the real property to which such document
relates is a Mortgaged Property.
90
(e) Neither
the Trustee or the Securities Administrator shall be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith
in accordance with the direction of Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests aggregating
not less than 25% as to the time, method and place of conducting any proceeding
for any remedy available to the Trustee or the Securities Administrator, as
applicable, or exercising any trust or power conferred upon the Trustee or
the
Securities Administrator, as applicable, under this Agreement.
(f) Neither
the Trustee nor the Securities Administrator shall be held liable by reason
of
any insufficiency in any account (including without limitation the Certificate
Account) held by or on behalf of the Trustee or the Securities Administrator
resulting from any investment loss on any Eligible Investment included therein
(except to the extent that the Trustee is the obligor and has defaulted
thereon).
(g) Except
as otherwise provided herein, neither the Trustee nor the Securities
Administrator shall have any duty (A) to see to any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing or
to
any re-recording, re-filing or re-depositing of any thereof, (B) to see to
any
insurance, (C) to see to the payment or discharge of any tax, assessment, or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Collection Account or the Certificate Account,
or
(D) to confirm or verify the contents of any reports or certificates of the
Master Servicer delivered to the Trustee or the Securities Administrator
pursuant to this Agreement believed by the Trustee or the Securities
Administrator, as applicable, to be genuine and to have been signed or presented
by the proper party or parties.
(h) Neither
the Securities Administrator nor the Trustee shall be liable in its individual
capacity for an error of judgment made in good faith by a Responsible Officer
or
other officers of the Trustee or the Securities Administrator, as applicable,
unless it shall be proved that the Trustee or the Securities Administrator,
as
applicable, was negligent in ascertaining the pertinent facts.
(i) Notwithstanding
anything in this Agreement to the contrary, neither the Securities Administrator
nor the Trustee shall be liable for special, indirect or consequential losses
or
damages of any kind whatsoever (including, but not limited to, lost profits),
even if the Trustee or the Securities Administrator, as applicable, has been
advised of the likelihood of such loss or damage and regardless of the form
of
action, provided,
however,
that
this Subsection 6.01(i) shall not apply in connection with any failure by the
Securities Administrator to comply with the provisions of Subsections 6.01(k)
and (l) hereof and Subsections 9.25(a) and (b) hereof.
(j) Neither
the Securities Administrator nor the Trustee shall be responsible for the acts
or omissions of the other or any Servicer, Custodian or the Master Servicer,
it
being understood that this Agreement shall not be construed to render any of
them agents of one another.
91
(k) The
Securities Administrator shall give prior written notice to the Sponsor, the
Master Servicer and the Depositor of the appointment of any Subcontractor by
it
and a written description (in form and substance satisfactory to the Sponsor
and
the Depositor) of the role and function of each Subcontractor utilized by the
Securities Administrator, specifying (A) the identity of each such Subcontractor
and (B) which elements of the servicing criteria set forth under Item 1122(d)
of
Regulation AB will be addressed in assessments of compliance provided by each
such Subcontractor.
(l) The
Trustee and the Securities Administrator shall each notify the Sponsor, the
Master Servicer and the Depositor within five (5) calendar days of knowledge
thereof (i) of any legal proceedings pending against the Trustee or the
Securities Administrator, as applicable, of the type described in Item 1117
(§
229.1117) of Regulation AB, and (ii) of any merger, consolidation or sale of
substantially all of the assets of the Trustee or the Securities Administrator,
as applicable, and (iii) if the Trustee or the Securities Administrator, as
applicable, shall become (but only to the extent not previously disclosed)
at
any time an affiliate of any of the parties listed on Exhibit R hereto. On
or
before March 1st
of each
year, the Depositor shall distribute the information on Exhibit R to the Trustee
and the Securities Administrator.
|
Section
6.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
Except
as
otherwise provided in Section 6.01:
(i) Each
of the Trustee and the Securities Administrator may request, and may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer’s Certificate, certificate of auditors, Opinion of Counsel or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(ii) Each
of the Trustee and the Securities Administrator may consult with counsel and
any
advice of its counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) Neither
the Trustee nor the Securities Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and reasonably believed
by
it to be authorized or within the discretion or rights or powers conferred
upon
it by this Agreement;
(iv) Unless
an Event of Default shall have occurred and be continuing, neither the Trustee
nor the Securities Administrator shall be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or
other paper or document (provided the same appears regular on its face), unless
requested in writing to do so by Holders of at least a majority in Class
Principal Amount (or Class Notional Amount) of each Class of Certificates;
provided, however, that, if the payment within a reasonable time to the Trustee
or the Securities Administrator, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee or the
Securities Administrator, as applicable, may require reasonable indemnity
against such expense or liability or payment of such estimated expenses as
a
condition to proceeding. The reasonable expense thereof shall be paid by the
Holders requesting such investigation and if not reimbursed by the requesting
party shall be reimbursed to the Securities Administrator or Trustee, as
applicable, by the Trust Fund;
92
(v) Each
of the Trustee and the Securities Administrator may execute any of the trusts
or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, or attorneys, which agents, custodians or attorneys
shall have any and all of the rights, powers, duties and obligations of the
Trustee and the Securities Administrator, respectively, conferred on them by
such appointment provided that each of the Trustee and the Securities
Administrator shall continue to be responsible for its duties and obligations
hereunder to the extent provided herein, and provided further that neither
the
Trustee nor the Securities Administrator shall be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed with due
care
by the Trustee or the Securities Administrator, as applicable;
(vi) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto,
in
each case at the request, order or direction of any of the Certificateholders
pursuant to the provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee or the Securities Administrator, as
applicable, reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(vii) The
right of the Trustee and the Securities Administrator to perform any
discretionary act enumerated in this Agreement shall not be construed as a
duty,
and neither the Trustee nor the Securities Administrator shall be answerable
for
other than its negligence or willful misconduct in the performance of such
act;
and
(viii) Neither
the Trustee nor the Securities Administrator shall be required to give any
bond
or surety in respect of the execution of the Trust Fund created hereby or the
powers granted hereunder.
|
Section
6.03.
|
Trustee
and Securities Administrator Not Liable for Certificates.
|
The
Trustee and the Securities Administrator make no representations as to the
validity or sufficiency of this Agreement or any Custodial Agreement, of the
Certificates (other than the certificate of authentication on the Certificates),
or of any Mortgage Loan or Servicing Agreement, or related document save that
the Trustee and the Securities Administrator each represent that, assuming
due
execution and delivery by the other parties hereto, this Agreement has been
duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that
such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law. Neither the
Trustee nor the Securities Administrator shall be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration
of
the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for
the use or application of any funds deposited into the Collection Account,
the
Certificate Account, any Escrow Account or any other fund or account maintained
with respect to the Certificates. Neither the Trustee nor the Securities
Administrator shall be responsible for the legality or validity of this
Agreement, the Custodial Agreements or the Servicing Agreements or the validity,
priority, perfection or sufficiency of the security for the Certificates issued
or intended to be issued hereunder. Except as otherwise provided herein, neither
the Trustee nor the Securities Administrator shall have any responsibility
for
filing any financing or continuation statement in any public office at any
time
or to otherwise perfect or maintain the perfection of any security interest
or
lien granted to it hereunder or to record this Agreement.
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|
Section
6.04.
|
Trustee
and Securities Administrator May Own Certificates.
|
The
Trustee, the Securities Administrator and any Affiliate or agent of the Trustee
or Securities Administrator in its individual or any other capacity may become
the owner or pledgee of Certificates and may transact banking and trust with
the
other parties hereto with the same rights it would have if it were not Trustee,
Securities Administrator or such agent.
|
Section
6.05.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
Each
of
the Trustee and the Securities Administrator hereunder shall at all times be
(i)
an institution insured by the FDIC and (ii) a corporation or national banking
association, organized and doing business under the laws of any State or the
United States of America, authorized under such laws to exercise corporate
trust
powers, having a combined capital and surplus of not less than $50,000,000
and a
rating of not less than “A-” by S&P, and subject to supervision or
examination by federal or state authority. If such corporation or national
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time either the Trustee or the Securities
Administrator shall cease to be eligible in accordance with provisions of this
Section, the Trustee or the Securities Administrator, as applicable, shall
resign immediately in the manner and with the effect specified in Section
6.06.
|
Section
6.06.
|
Resignation
and Removal of Trustee and Securities Administrator.
|
(a) Each
of the Trustee and the Securities Administrator may at any time resign and
be
discharged from the trust hereby created by giving written notice thereof to
the
Trustee or the Securities Administrator, as applicable, the Depositor and the
Master Servicer. Upon receiving such notice of resignation, the Depositor will
promptly appoint a successor trustee or successor Securities Administrator,
as
applicable, by written instrument, one copy of which instrument shall be
delivered to the resigning Trustee or resigning Securities Administrator, as
applicable, one copy to the successor trustee or to the successor securities
administrator, as applicable, one copy to the Master Servicer. If no successor
trustee or successor securities administrator, as applicable shall have been
so
appointed and shall have accepted appointment within 30 days after the giving
of
such notice of resignation, the resigning Trustee or resigning Securities
Administrator, as applicable, may petition any court of competent jurisdiction
for the appointment of a successor trustee.
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(b) If
at any time (i) either the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 6.05 and shall
fail
to resign after written request therefor by the Depositor, (ii) the Trustee
or
the Securities Administrator shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or the Securities
Administrator or of either of their property shall be appointed, or any public
officer shall take charge or control of the Trustee or the Securities
Administrator or of either of their property or affairs for the purpose of
rehabilitation, conservation or liquidation, (iii) a tax is imposed or
threatened with respect to the Trust Fund by any state in which the Trustee
or
the Trust Fund held by the Trustee is located, (iv) the Trustee shall fail
to
provide the information required pursuant to Subsection 6.01 (l), (v) the
continued use of the Trustee or the Securities Administrator would result in
a
downgrading of the rating by the Rating Agencies of any Class of Certificates
with a rating or (vi) the Securities Administrator shall fail to observe or
perform in any material respect any of the covenants or agreement of the
Securities Administrator contained in this Agreement including any failure
to
provide the information, reports, assessments or attestations required pursuant
to Section 9.25(a) or 9.25(b) hereof, then the Depositor shall remove the
Trustee or the Securities Administrator, as applicable, and appoint a successor
trustee or successor securities administrator, as applicable, by written
instrument, one copy of which instrument shall be delivered to the Trustee
or
the Securities Administrator, as applicable, so removed, one copy to the
successor trustee or the successor securities administrator, as applicable,
and
one copy to the Master Servicer.
(c) The
Holders of more than 50% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates may at any time upon 30 days’ written
notice to the Trustee, the Securities Administrator and the Depositor remove
the
Trustee or the Securities Administrator by such written instrument, signed
by
such Holders or their attorney-in-fact duly authorized, one copy of which
instrument shall be delivered to the Depositor, one copy to the Trustee or
Securities Administrator, as applicable, so removed and one copy to the Master
Servicer; the Depositor shall thereupon use its best efforts to appoint a
mutually acceptable successor trustee or successor securities administrator,
as
applicable, in accordance with this Section.
(d) Any
resignation or removal of the Trustee or Securities Administrator and
appointment of a successor trustee or successor securities administrator
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee or successor securities
administrator, as applicable, as provided in Section 6.07.
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|
Section
6.07.
|
Successor
Trustee and Successor Securities Administrator.
|
(a) Any
successor trustee or successor securities administrator appointed as provided
in
Section 6.06 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer and to its predecessor trustee or predecessor securities administrator,
as applicable, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee or predecessor securities
administrator, as applicable, shall become effective and such successor trustee
or successor securities administrator, as applicable, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if
originally named as trustee or securities administrator, as applicable, herein.
The predecessor trustee or predecessor securities administrator, as applicable
shall deliver to the successor trustee (or assign to the successor trustee
its
interest under each Custodial Agreement, to the extent permitted thereunder)
or
predecessor securities administrator, as applicable, all Mortgage Files and
documents and statements related to each Mortgage Files held by it hereunder,
and shall duly assign, transfer, deliver and pay over to the successor trustee
the entire Trust Fund, together with all necessary instruments of transfer
and
assignment or other documents properly executed necessary to effect such
transfer and such of the record or copies thereof maintained by the predecessor
trustee in the administration hereof as may be requested by the successor
trustee and shall thereupon be discharged from all duties and responsibilities
under this Agreement. In addition, the Master Servicer and the predecessor
trustee or predecessor securities administrator, as applicable, shall execute
and deliver such other instruments and do such other things as may reasonably
be
required to more fully and certainly vest and confirm in the successor trustee
or securities administrator, as applicable all such rights, powers, duties
and
obligations.
(b) No
successor trustee or securities administrator, as applicable, shall accept
appointment as provided in this Section unless at the time of such appointment
such successor trustee or securities administrator, as applicable, shall be
eligible under the provisions of Section 6.05.
(c) Upon
acceptance of appointment by a successor trustee or successor securities
administrator, as applicable, as provided in this Section, the Master Servicer
shall mail notice of the succession of such trustee or securities administrator,
as applicable and to all Holders of Certificates at their addresses as shown
in
the Certificate Register and to the Rating Agencies. The expenses of such
mailing shall be borne by the predecessor trustee.
|
Section
6.08.
|
Merger
or Consolidation of Trustee or Securities Administrator.
|
Any
Person into which the Trustee or Securities Administrator may be merged or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee or Securities Administrator
shall be a party, or any Persons succeeding to the business of the Trustee
or
the Securities Administrator, shall be the successor to the Trustee or the
Securities Administrator hereunder, without the execution or filing of any
paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding, provided that such Person shall be eligible under
the provisions of Section 6.05. As
a
condition to the succession to the Trustee or the Securities Administrator
under
this Agreement by any Person (i) into which the Trustee or the Securities
Administrator, as applicable, may be merged or consolidated, or (ii) which
may
be appointed as a successor to the Trustee or the Securities Administrator,
as
applicable, the Trustee or the Securities Administrator, as applicable, shall
notify the Depositor, at least 15 calendar days prior to the effective date
of
such succession or appointment, of such succession or appointment and shall
furnish to the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably necessary for the
Trustee or the Securities Administrator, as applicable, to accurately and timely
report, pursuant to Section 6.20, the event under Item 6.02 of Form 8-K pursuant
to the Exchange Act (if such reports under the Exchange Act are required to
be
filed under the Exchange Act).
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|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates shall each have the power
from time to time to appoint one or more Persons to act either as co-trustees
jointly with the Trustee, or as separate trustees, or as custodians, for the
purpose of holding title to, foreclosing or otherwise taking action with respect
to any Mortgage Loan outside the state where the Trustee has its principal
place
of business where such separate trustee or co-trustee is necessary or advisable
(or the Trustee has been advised by the Master Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state
in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in
any
state in which a property securing a Mortgage Loan is located or in any state
in
which any portion of the Trust Fund is located. The separate trustees,
co-trustees, or custodians so appointed shall be trustees or custodians for
the
benefit of all the Certificateholders and shall have such powers, rights and
remedies as shall be specified in the instrument of appointment; provided,
however, that no such appointment shall, or shall be deemed to, constitute
the
appointee an agent of the Trustee. The obligation of the Securities
Administrator to make Advances pursuant to Section 5.04 and 6.14 hereof shall
not be affected or assigned by the appointment of a co-trustee, provided,
however, that prior to the appointment hereunder of any such co-trustee,
separate trustee, or custodian, such Person shall enter into an agreement,
in
form and substance satisfactory to the Depositor, the Master Servicer and the
Trustee, relating to the satisfaction of such Person of its reporting
obligations under Regulation AB with respect to any Servicing performed by
it in
connection with the Trust Fund.
(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of moneys shall be exercised solely by the
Trustee;
(ii) all
other rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee, co-trustee, or custodian jointly, except
to
the extent that under any law of any jurisdiction in which any particular act
or
acts are to be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations, including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction, shall be exercised and performed by such
separate trustee, co-trustee, or custodian;
97
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by it
or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions of
this
Article VI. Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. The Trustee shall not be responsible
for any action or inaction of any separate trustee, co-trustee or custodian.
If
any separate trustee, co-trustee or custodian shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g) The
Trust Fund shall pay the reasonable compensation of the co-trustees to the
extent, and in accordance with the standards, specified in Section 6.12 hereof
(which compensation shall not reduce any compensation payable to the Trustee
under such Section).
|
Section
6.10.
|
Authenticating
Agents.
|
(a) The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. The Trustee
hereby appoints the Securities Administrator to act as the initial
Authenticating Agent, and the Securities Administrator hereby accepts such
appointment. Wherever reference is made in this Agreement to the authentication
of Certificates by the Trustee or the Trustee’s certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
must be a corporation organized and doing business under the laws of the United
States of America or of any state, having a combined capital and surplus of
at
least $15,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities.
98
(b) Any
Person into which any Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee and the Depositor. The Trustee
may
at any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and the Depositor. Upon
receiving a notice of resignation or upon such a termination, or in case at
any
time any Authenticating Agent shall cease to be eligible in accordance with
the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No
Authenticating Agent shall have responsibility or liability for any action
taken
by it as such at the direction of the Trustee. Any Authenticating Agent shall
be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense to the extent provided in Section
6.12.
|
Section
6.11.
|
Indemnification
of Trustee and Securities Administrator.
|
The
Trustee and the Securities Administrator and their respective directors,
officers, employees and agents shall be entitled to indemnification from the
Trust Fund for any loss, liability or expense incurred in connection with any
legal proceeding or incurred without negligence or willful misconduct on their
part, arising out of, or in connection with, the acceptance or administration
of
the trusts created hereunder or in connection with the performance of their
duties hereunder or under the Certificates, the Mortgage Loan Sale Agreement,
any Custodial Agreement or any Servicing Agreement, including any applicable
fees and expenses payable pursuant to Section 6.12 and the costs and expenses
of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided
that:
(i) with
respect to any such claim, the Trustee or the Securities Administrator, as
applicable, shall have given the Depositor, the Master Servicer and the Holders
written notice thereof promptly after a Responsible Officer of the Trustee
or
the Securities Administrator, as applicable, shall have knowledge thereof;
provided that failure to so notify shall not relieve the Trust Fund of the
obligation to indemnify the Trustee or the Securities
Administrator;
99
(ii) while
maintaining control over its own defense, the Trustee or the Securities
Administrator, as applicable, shall cooperate and consult fully with the
Depositor in preparing such defense; and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee or the Securities
Administrator, as applicable, entered into without the prior consent of the
Depositor, which consent shall not be unreasonably withheld; and
(iv) any
such loss, liability or expense indemnified by the Trust Fund must constitute
an
“unanticipated expense” within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii).
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee or the Securities Administrator,
as applicable, and shall be construed to include, but not be limited to any
loss, liability or expense under any environmental law.
|
Section
6.12.
|
Fees
and Expenses of Securities Administrator, Trustee and
Custodian.
|
The
Securities Administrator shall be entitled to (a) the Securities Administrator
Fee, and is authorized to pay itself the amount of income or gain earned from
investment of funds in the Certificate Account and (b) reimbursement of all
reasonable expenses, disbursements and advancements incurred or made by the
Securities Administrator in accordance with this Agreement (including fees
and
expenses of its counsel and all persons not regularly in its employment), except
any such expenses, disbursements and advancements that either (i) arise from
its
negligence, bad faith or willful misconduct or (ii) do not constitute
“unanticipated expenses” within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). The Trustee shall be paid the Trustee Fee by the Securities
Administrator from its own funds, as separately agreed with the Securities
Administrator. Each Custodian shall receive compensation and reimbursement
or
payment of its expenses under the Custodial Agreement as provided therein;
provided that, to the extent required under Section 6 or Section 20 of the
Custodial Agreement, the Trustee is hereby authorized to pay such compensation
or reimbursement from amounts on deposit in the Certificate Account prior to
any
distributions to Certificateholders pursuant to Section 5.02
hereof.
|
Section
6.13.
|
Collection
of Monies.
|
Except
as
otherwise expressly provided in this Agreement, the Trustee or Securities
Administrator may demand payment or delivery of, and shall receive and collect,
all money and other property payable to or receivable by the Trustee pursuant
to
this Agreement. The Trustee or Securities Administrator shall hold all such
money and property received by it as part of the Trust Fund and shall distribute
it as provided in this Agreement. If the Trustee or Securities Administrator
shall not have timely received amounts to be remitted with respect to the
Mortgage Loans from the Master Servicer, the Trustee or Securities Administrator
shall request the Master Servicer to make such distribution as promptly as
practicable or legally permitted. If the Trustee or Securities Administrator
shall subsequently receive any such amount, it may withdraw such
request.
100
|
Section
6.14.
|
Events
of Default; Securities Administrator To Act; Appointment of
Successor.
|
(a) The
occurrence of any one or more of the following events shall constitute an “Event
of Default”:
(i) Any
failure by the Master Servicer to furnish the Securities Administrator the
Mortgage Loan data sufficient to prepare the reports described in Section
4.03(a) which continues unremedied for a period of two (2) Business Days after
the date upon which written notice of such failure shall have been given to
such
Master Servicer by the Trustee or the Securities Administrator or to such Master
Servicer, the Securities Administrator and the Trustee by the Holders of not
less than 25% of the Class Principal Amount (or Class Notional Amount) of each
Class of Certificates affected thereby; or
(ii) Any
failure by the Master Servicer to duly perform, within the required time period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 and 9.26, which failure continues unremedied for
a
period of five (5) days from the date of delivery required with respect to
such
certification; or
(iii) Except
with respect to those items listed in clause (ii) above, any failure by the
Servicer to duly perform, within the required time period, without notice or
grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv) Any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of such
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days (or 15 days, in the case of a failure to maintain any
Insurance Policy required to be maintained pursuant to this Agreement, or 10
days, in the case of a failure to comply with the requirements of Sections
9.03)
after the date on which written notice of such failure, requiring the same
to be
remedied, shall have been given to such Master Servicer by the Trustee or
Securities Administrator, or to such Master Servicer, the Securities
Administrator and the Trustee by the Holders of not less than 25% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates
affected thereby; or
(v) A
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer, and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days or
any
Rating Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the Certificates because of the financial condition or loan servicing
capability of such Master Servicer; or
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(vi) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
such
Master Servicer or of or relating to all or substantially all of its property;
or
(vii) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors or voluntarily suspend payment of its obligations; or
(viii) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
9.27
hereof; or
(ix) If
a representation or warranty set forth in Section 9.14 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 60 days after the date on which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or to the Master Servicer and the
Trustee by the Holders of not less than 25% of the Aggregate Certificate
Principal Amount of each Class of Certificates; or
(x) A
sale or pledge of the any of the rights of the Master Servicer hereunder or
an
assignment of this Agreement by the Master Servicer or a delegation of the
rights or duties of the Master Servicer hereunder shall have occurred in any
manner not otherwise permitted hereunder and without the prior written consent
of the Trustee and Certificateholders holding more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates;
or
(xi) The
Master Servicer has notice or actual knowledge that any Servicer at any time
is
not either an FNMA- or FHLMC-approved Seller/Servicer, and the Master Servicer
has not terminated the rights and obligations of such Servicer under the
applicable Servicing Agreement and replaced such Servicer with an FNMA- or
FHLMC-approved servicer within 60 days of the date the Master Servicer receives
such notice or actual knowledge; or
(xii) Any
failure of the Master Servicer to remit to the Securities Administrator any
payment required to be made to the Securities Administrator for the benefit
of
Certificateholders under the terms of this Agreement, including any Advance,
on
any Deposit Date, which such failure continues unremedied after 1:00 p.m.
Eastern Standard Time one Business Day after the date upon which notice of
such
failure shall have been given to the Master Servicer and the Trustee by the
Securities Administrator.
102
If
an
Event of Default described in clauses (i) through (xi) of this Section 6.14
shall occur, then, in each and every case, subject to applicable law, so long
as
any such Event of Default shall not have been remedied within any period of
time
prescribed by this Section 6.14, the Trustee, by notice in writing to the Master
Servicer may, and shall, if so directed by Certificateholders evidencing more
than 50% of the Class Principal Amount (or Class Notional Amount) of each Class
of Certificates, terminate all of the rights and obligations of the Master
Servicer hereunder and in and to the Mortgage Loans and the proceeds thereof.
If
an Event of Default described in clause (xii) of Section 6.14(a) shall occur,
then, in each and every case, subject to applicable law, so long as such Event
of Default shall not have been remedied within the time period prescribed by
clause (xii) of Section 6.14(a), the Trustee, by notice in writing to the Master
Servicer, shall promptly terminate all of the rights and obligations of the
Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer, and only in its capacity as
Master Servicer under this Agreement, whether with respect to the Mortgage
Loans
or otherwise, shall pass to and be vested in the Securities Administrator upon
receipt of written notice by the Securities Administrator from the Trustee
pursuant to and under the terms of this Agreement; and the Securities
Administrator is hereby authorized and empowered to execute and deliver, on
behalf of the defaulting Master Servicer as attorney-in-fact or otherwise,
any
and all documents and other instruments, and to do or accomplish all other
acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents or otherwise. The defaulting Master
Servicer agrees to cooperate with the Trustee and the Securities Administrator
in effecting the termination of the defaulting Master Servicer’s
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying Servicers of the assignment of the master servicing
function and providing the Securities Administrator or its designee all
documents and records in electronic or other form reasonably requested by it
to
enable the Securities Administrator or its designee to assume the defaulting
Master Servicer’s functions hereunder and the transfer to the Securities
Administrator for administration by it of all amounts which shall at the time
be
or should have been deposited by the defaulting Master Servicer in the
Collection Account maintained by such defaulting Master Servicer and any other
account or fund maintained with respect to the Certificates or thereafter
received with respect to the Mortgage Loans. The Master Servicer being
terminated shall bear all costs of a master servicing transfer, including but
not limited to those of the Trustee and Securities Administrator reasonably
allocable to specific employees and overhead, legal fees and expenses,
accounting and financial consulting fees and expenses, and costs of amending
the
Agreement, if necessary. The Securities Administrator shall be entitled to
be
reimbursed from the Master Servicer (or by the Trust Fund, if the Master
Servicer is unable to fulfill its obligations hereunder) for all costs
associated with the transfer of servicing from the predecessor Master Servicer,
including, without limitation, any costs or expenses associated with the
complete transfer of all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the Securities
Administrator to correct any errors or insufficiencies in the servicing data
or
otherwise to enable the Securities Administrator to master service the Mortgage
Loans properly and effectively. If the terminated Master Servicer does not
pay
such reimbursement within thirty (30) days of its receipt of an invoice
therefor, such reimbursement shall be an expense of the Trust Fund and the
Securities Administrator shall be entitled to withdraw such reimbursement from
amounts on deposit in the Certificate Account pursuant to Section 4.04; provided
that the terminated Master Servicer shall reimburse the Trust Fund for any
such
expense incurred by the Trust Fund; and provided, further, that the Trustee
shall decide whether and to what extent it is in the best interest of the
Certificateholders to pursue any remedy against any party obligated to make
such
reimbursement.
103
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02(i), (ii), (iii), (iv), (v), (vi), (vii) and (x) to the extent
such reimbursement relates to the period prior to such Master Servicer’s
termination.
If
any
Event of Default shall occur of which a Responsible Officer of the Trustee
or
Securities Administrator has actual knowledge,
the
Trustee or Securities Administrator, as applicable, upon becoming aware of
the
occurrence thereof through the proper execution of its duties under this
Agreement, shall promptly notify the Securities Administrator or Trustee and
the
Rating Agencies of the nature and extent of such Event of Default. The Trustee
or the Securities Administrator shall immediately give written notice to the
Master Servicer upon such Master Servicer’s failure to remit funds on the
Deposit Date.
(b) On
and after the time the Master Servicer receives a notice of termination from
the
Trustee or Securities Administrator pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.28 and within a period of time not to exceed
90
days after the Securities Administrator receives written notice from the Trustee
pursuant to Section 6.14(a) or Section 9.28, the Securities Administrator,
unless another master servicer shall have been appointed, shall be the successor
in all respects to the Master Servicer in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
all the rights and powers and be subject to all the responsibilities, duties
and
liabilities relating thereto and arising thereafter placed on the Master
Servicer hereunder, including the obligation to make Advances; provided,
however, that any failure to perform such duties or responsibilities caused
by
the Master Servicer’s or the Trustee’s failure to provide information required
by this Agreement shall not be considered a default by the Securities
Administrator hereunder. In addition, the Securities Administrator shall have
no
responsibility for any act or omission of the Master Servicer prior to the
issuance of any notice of termination and within a period of time not to exceed
90 days after the Securities Administrator receives written notice from the
Trustee pursuant to Section 6.14(a) or Section 9.28, as applicable. The
Securities Administrator shall have no liability relating to the representations
and warranties of the Master Servicer set forth in Section 9.14. In the
Securities Administrator’s capacity as such successor, the Securities
Administrator shall have the same limitations on liability herein granted to
the
Master Servicer. As compensation therefor, the Securities Administrator shall
be
entitled to receive all compensation payable to the Master Servicer under this
Agreement, including the Master Servicing Fee and the compensation described
in
Section 9.21. The Securities Administrator shall be entitled to be reimbursed
from the Master Servicer (or by the Trust Fund if the Master Servicer is unable
to fulfill its obligations hereunder) for all costs associated with the transfer
of master servicing from the predecessor master servicer, including, without
limitation, any costs or expenses associated with the complete transfer of
all
master servicing data and the completion, correction or manipulation of such
master servicing data as may be required by the Securities Administrator to
correct any errors or insufficiencies in the master servicing data or otherwise
to enable the Securities Administrator to master service the Mortgage Loans
properly and effectively.
104
(c) Notwithstanding
the above, the Securities Administrator may, if it shall be unwilling to
continue to so act, or shall, if it is unable to so act, request the Trustee
to
appoint, petition a court of competent jurisdiction to appoint, or appoint
on
its own behalf any established housing and home finance institution servicer,
master servicer, servicing or mortgage servicing institution having a net worth
of not less than $15,000,000 and meeting such other standards for a successor
master servicer as are set forth in this Agreement, as the successor to such
Master Servicer in the assumption of all of the responsibilities, duties or
liabilities of a master servicer, like the Master Servicer. Any entity
designated by the Trustee or the Securities Administrator as a successor master
servicer may be an Affiliate of the Trustee or the Securities Administrator;
provided, however, that, unless such Affiliate meets the net worth requirements
and other standards set forth herein for a successor master servicer, the
Trustee or the Securities Administrator, in its individual capacity shall agree,
at the time of such designation, to be and remain liable to the Trust Fund
for
such Affiliate’s actions and omissions in performing its duties hereunder. In
connection with such appointment and assumption, the Trustee or the Securities
Administrator may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
permitted to the Master Servicer hereunder. The Trustee, the Securities
Administrator and such successor shall take such actions, consistent with this
Agreement, as shall be necessary to effectuate any such succession and may
make
other arrangements with respect to the servicing to be conducted hereunder
which
are not inconsistent herewith. The Master Servicer shall cooperate with the
Trustee, the Securities Administrator and any successor master servicer in
effecting the termination of the Master Servicer’s responsibilities and rights
hereunder including, without limitation, notifying Mortgagors of the assignment
of the master servicing functions and providing the Securities Administrator
and
successor master servicer, as applicable, all documents and records in
electronic or other form reasonably requested by it to enable it to assume
the
Master Servicer’s functions hereunder and the transfer to the Trustee, the
Securities Administrator or such successor master servicer, as applicable,
all
amounts which shall at the time be or should have been deposited by the Master
Servicer in the Collection Account and any other account or fund maintained
with
respect to the Certificates or thereafter be received with respect to the
Mortgage Loans. Neither the Trustee, the Securities Administrator nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder
or
any portion thereof caused by (i) the failure of the Master Servicer to deliver,
or any delay in delivering, cash, documents or records to it, (ii) the failure
of the Master Servicer to cooperate as required by this Agreement, (iii) the
failure of the Master Servicer to deliver the Mortgage Loan data to the
Securities Administrator as required by this Agreement or (iv) restrictions
imposed by any regulatory authority having jurisdiction over the Master
Servicer.
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 6.14, shall have the right, in its own name and as trustee of an express
trust, to take all actions now or hereafter existing at law, in equity or by
statute to enforce its rights and remedies and to protect the interests, and
enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and
each
and every remedy shall be cumulative and in addition to any other remedy, and
no
delay or omission to exercise any right or remedy shall impair any such right
or
remedy or shall be deemed to be a waiver of any Event of
Default.
105
|
Section
6.16.
|
Waiver
of Defaults.
|
35%
or
more of the Aggregate Voting Interests of Certificateholders may waive any
default or Event of Default by the Master Servicer in the performance of its
obligations hereunder, except that a default in the making of any required
deposit to the Certificate Account that would result in a failure of the Trustee
to make any required payment of principal of or interest on the Certificates
may
only be waived with the consent of 100% of the affected Certificateholders.
Upon
any such waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
|
Section
6.17.
|
Notification
to Holders.
|
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Securities Administrator shall
promptly mail notice thereof by first class mail to the Trustee and the
Certificateholders at their respective addresses appearing on the Certificate
Register. The Trustee shall also, within 45 days after the occurrence of any
Event of Default known to a Responsible Officer of the Trustee, give written
notice thereof to the Securities Administrator and the Certificateholders,
unless such Event of Default shall have been cured or waived prior to the
issuance of such notice and within such 45-day period.
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
Subject
to the provisions of Section 8.01 hereof, during the continuance of any Event
of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement; provided, however, that the Trustee shall be
under no obligation to pursue any such remedy, or to exercise any of the trusts
or powers vested in it by this Agreement (including, without limitation, (i)
the
conducting or defending of any administrative action or litigation hereunder
or
in relation hereto and (ii) the terminating of the Master Servicer or any
successor master servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the Certificateholders,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which may
be
incurred therein or thereby; and, provided further, that, subject to the
provisions of Section 8.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee, in accordance with an Opinion of
Counsel, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
106
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
of
any action or inaction of the Master Servicer that would become an Event of
Default upon the Master Servicer’s failure to remedy the same after notice, the
Trustee shall give notice thereof to the Master Servicer. For all purposes
of
this Agreement, in the absence of actual knowledge by a Responsible Officer
of
the Trustee, the Trustee shall not be deemed to have knowledge of any failure
of
the Master Servicer or any other Event of Default unless notified in writing
by
the Depositor, the Securities Administrator, the Master Servicer or a
Certificateholder.
|
Section
6.20.
|
Preparation
of Tax Returns and Other Reports.
|
(a) [Reserved].
(b) [Reserved].
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, the Securities Administrator shall, in accordance with
industry standards and the rules of the Commission as in effect from time to
time (the “Rules”), prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (“▇▇▇▇▇”), the reports listed in subsections (d)
through (f) of this Section 6.20 in respect of the Trust Fund as and to the
extent required under the Exchange Act.
(d) Reports
Filed on Form
10-D.
(i) Within
15 days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust Fund any Form 10-D required by the Exchange Act, in form and substance
as required by the Exchange Act. The Securities Administrator shall file each
Form 10-D with a copy of the related Distribution Date Statement attached
thereto. Any disclosure in addition to the Distribution Date Statement that
is
required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall
be determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except as set forth in the next paragraph.
107
(ii) As
set forth on Exhibit P-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the Structured Adjustable Rate
Mortgage Loan Trust 2006-3 transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known by a responsible
officer thereof, in ▇▇▇▇▇-compatible form (which may be Word or Excel documents
easily convertible to ▇▇▇▇▇ format), or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance
of
any Additional Form 10-D Disclosure, if applicable, and include with such
Additional Form 10-D Disclosure, an Additional Disclosure Notification in the
form attached hereto as Exhibit P-4, and (B) the Depositor will approve, as
to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Sponsor will be responsible
for any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a draft copy of the Form 10-D to the Exchange Act Signing Party
for review and approval. If the Master Servicer is the Exchange Act Signing
Party and the Form 10-D includes Additional Form 10-D Disclosure, then the
Form
10-D shall also be electronically distributed to the Depositor for review and
approval. No later than two Business Days prior to the 15th calendar day after
the related Distribution Date, a senior officer of the Exchange Act Signing
Party shall sign the Form 10-D and return an electronic or fax copy of such
signed Form 10-D (with an original executed hard copy to follow by overnight
mail) to the Securities Administrator. If a Form 10-D cannot be filed on time
or
if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (g)(ii) of
this
Section 6.20. Promptly (but no later than one Business Day) after filing with
the Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D. Each party to this Agreement
acknowledges that the performance by the Securities Administrator of its duties
under this Section 6.20(d) related to the timely preparation and filing of
Form
10-D is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 6.20(d). The Securities
Administrator shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or timely
file such Form 10-D, where such failure results from the Securities
Administrator’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
108
(e) Reports
Filed on Form 10-K.
(i) On
or prior to March 31 after the end of each fiscal year of the Trust Fund or
such
earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”)
(it being understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2007, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items,
in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement and in the related
Servicing Agreements and Custodial Agreements, (A) an annual compliance
statement for each Servicer, each Additional Servicer and the Master Servicer,
as described under Section 9.26 hereof and in each Servicing Agreement, (B)(I)
the annual reports on assessment of compliance with servicing criteria for
each
Servicer, each Custodian, each Additional Servicer, the Master Servicer, each
Subservicer, each Subcontractor, any Servicing Function Participant and the
Securities Administrator (each, a “Reporting Servicer”), as described under
Section 9.25(a) hereof and in each Servicing Agreement and Custodial Agreement,
and (II) if any Reporting Servicer’s report on assessment of compliance with
servicing criteria described under Section 9.25(a) hereof or in any Servicing
Agreement or Custodial Agreement identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
any
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 9.25(a) hereof or in the any Servicing Agreement or
Custodial Agreement is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, (C)(I) the registered public accounting firm attestation report for
each Reporting Servicer, as described under Section 9.25(b) hereof and in each
Servicing Agreement and Custodial Agreement and (II) if any registered public
accounting firm attestation report described under Section 9.25(b) hereof or
in
any Servicing Agreement or Custodial Agreement identifies any material instance
of noncompliance, disclosure identifying such instance of noncompliance, or
if
any such registered public accounting firm attestation report is not included
as
an exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation why such report is not included, and (D) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification. Any disclosure or information in addition to (A) through (D)
above that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Additional Form 10-K Disclosure, except as set forth in the next paragraph.
(ii) As
set forth on Exhibit P-2 hereto, no later than March 15 of each year that the
Trust Fund is subject to the Exchange Act reporting requirements, commencing
in
2007, (A) certain parties to the Structured Adjustable Rate Mortgage Loan Trust
2006-3 transaction shall be required to provide to the Securities Administrator
and the Depositor, to the extent known by a responsible officer thereof, in
▇▇▇▇▇-compatible form (which may be Word or Excel documents easily convertible
to ▇▇▇▇▇ format), or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable and include with such Additional
Form 10-K Disclosure, an Additional Disclosure Notification in the form attached
hereto as Exhibit P-4, and (B) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Securities Administrator has no duty
under this Agreement to monitor or enforce the performance by the parties listed
on Exhibit P-2 of their duties under this paragraph or proactively solicit
or
procure from such parties any Form 10-K Disclosure Information. The Sponsor
will
be responsible for any reasonable fees and expenses assessed or incurred by
the
Securities Administrator in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
109
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a draft copy of the Form 10-K to the Exchange Act Signing Party
for review and approval. If the Master Servicer is the Exchange Act Signing
Party and the Form 10-K includes Additional Form 10-K Disclosure, then the
Form
10-K shall also be electronically distributed to the Depositor for review and
approval. No later than the close of business New York City time on the 4th
Business Day prior to the 10-K Filing Deadline, a senior officer of the Exchange
Act Signing Party shall sign the Form 10-K and return an electronic or fax
copy
of such signed Form 10-K (with an original executed hard copy to follow by
overnight mail) to the Securities Administrator. If a Form 10-K cannot be filed
on time or if a previously filed Form 10-K needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (g) of this
Section 6.20. Promptly (but no later than one Business Day) after filing with
the Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-K. The parties to this Agreement
acknowledge that the performance by the Securities Administrator of its duties
under this Section 6.20(e) related to the timely preparation and filing of
Form
10-K is contingent upon such parties (and any Additional Servicer or Servicing
Function Participant) strictly observing all applicable deadlines in the
performance of their duties under this Section 6.20(e), Section 9.25(a), Section
9.25(b) and Section 9.26. The Securities Administrator shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 10-K, where such
failure results from the Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
(iv) Each
Form 10-K shall include the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification. The Securities
Administrator and, if the Depositor is the Exchange Act Signing Party, the
Master Servicer, shall, and the Securities Administrator and the Master Servicer
(if applicable) 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 Fund is
subject to the reporting requirements of the Exchange Act, a certification
(each, a “Back-Up Certification”), in the form attached hereto as Exhibit Q,
upon which the Certifying Person, the entity for which the Certifying Person
acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. The senior officer of the Exchange Act Signing Party shall
serve as the Certifying Person on behalf of the Trust Fund. In the event the
Master Servicer, the Securities Administrator or any Servicing Function
Participant engaged by such parties is terminated or resigns pursuant to the
terms of this Agreement, such party or Servicing Function Participant shall
provide a Back-Up Certification to the Certifying Person pursuant to this
Section 6.20(e)(iv) with respect to the period of time it was subject to this
Agreement.
(v) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal of
such
Person.
110
(f) Reports
Filed on Form 8-K.
(i) Within
four Business Days after the occurrence of an event requiring disclosure on
Form
8-K (each such event, a “Reportable Event”), and if requested by the Depositor,
the Securities Administrator shall prepare and file on behalf of the Trust
Fund
any Form 8-K, as required by the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth in
the
next paragraph.
(ii) As
set forth on Exhibit P-3 hereto, for so long as the Trust Fund is subject to
the
Exchange Act reporting requirements, no later than Noon New York City time
on
the 2nd Business Day after the occurrence of a Reportable Event (A) certain
parties to the Structured Adjustable Rate Mortgage Loan Trust 2006-3 transaction
shall be required to provide to the Securities Administrator and the Depositor,
to the extent known by a responsible officer thereof, in ▇▇▇▇▇-compatible form
(which may be Word or Excel documents easily convertible to ▇▇▇▇▇ format),
or in
such other form as otherwise agreed upon by the Securities Administrator and
such party, the form and substance of any Form 8-K Disclosure Information,
if
applicable, and include with such Form 8-K Disclosure Information, an Additional
Disclosure Notification in the form attached hereto as Exhibit P-4, and (B)
the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Form 8-K Disclosure Information. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit P-3 of their duties under this
paragraph or proactively solicit or procure from such parties any Form 8-K
Disclosure Information. The Sponsor will be responsible for any reasonable
fees
and expenses assessed or incurred by the Securities Administrator in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically, no later than Noon New York city time on the 3rd Business Day
after the Reportable Event, a draft copy of the Form 8-K to the Exchange Act
Signing Party for review and approval. If the Master Servicer is the Exchange
Act Signing Party, then the Form 8-K shall also be electronically distributed
to
the Depositor for review and approval. No later than Noon New York City time
on
the 4th Business Day after the Reportable Event, a senior officer of the
Exchange Act Signing Party shall sign the Form 8-K and return an electronic
or
fax copy of such signed Form 8-K (with an original executed hard copy to follow
by overnight mail) to the Securities Administrator. If a Form 8-K cannot be
filed on time or if a previously filed Form 8-K needs to be amended, the
Securities Administrator will follow the procedures set forth in subsection
(g)
of this Section 6.20. Promptly (but no later than one Business Day) after filing
with the Commission, the Securities Administrator will, make available on its
internet website a final executed copy of each Form 8-K prepared and filed
by it
pursuant to this Section 6.20(f). The parties to this Agreement acknowledge
that
the performance by the Securities Administrator of its duties under this Section
6.20(f) related to the timely preparation and filing of Form 8-K is contingent
upon such parties strictly observing all applicable deadlines in the performance
of their duties under this Section 6.20(f). The Securities Administrator shall
have no liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare and/or timely file such Form 8-K,
where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any other
party hereto needed to prepare, arrange for execution or file such Form 8-K,
not
resulting from its own negligence, bad faith or willful misconduct.
111
(g) Delisting;
Amendments; Late Filings.
(i) Prior
to January 30 in of the first year in which the Securities Administrator is
able
to do so under applicable law, unless otherwise directed by the Depositor,
the
Securities Administrator shall prepare and file a Form 15 relating to the
automatic suspension of reporting in respect of the Trust Fund under the
Exchange Act.
(ii) In
the event that the Securities Administrator becomes aware that it will be unable
to timely file with the Commission all or any required portion of any Form
8-K,
10-D or 10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the delivery
deadlines set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify the Depositor. In the case of Form 10-D
and
10-K, the parties to this Agreement and each Servicer will cooperate to prepare
and file a Form 12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule
12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed Form
8-K, 10-D or 10-K needs to be amended, the Securities Administrator will notify
the Depositor and each Servicer (provided that each Servicer will only be
notified in the event of an additional disclosure item) and such parties will
cooperate to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form
12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be signed by a senior
officer of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Securities Administrator of its duties
under this Section 6.20(g) related to the timely preparation and filing of
Form
15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon
each such party performing its duties under this Section. The Securities
Administrator shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or timely
file any such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or
10-K,
where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any other
party hereto needed to prepare, arrange for execution or file such Form 15,
Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its
own
negligence, bad faith or willful misconduct.
112
(h) Any
party that signs any Exchange Act report that the Securities Administrator
is
required to file shall provide to the Securities Administrator prompt notice
of
the execution of such Exchange Act report along with the name and contact
information for the person signing such report and shall promptly deliver to
the
Securities Administrator the original executed signature page for such report.
In addition, each of the parties agrees to provide to the Securities
Administrator such additional information related to such party as the
Securities Administrator may reasonably request, including evidence of the
authorization of the person signing any certification or statement, financial
information and reports, and such other information related to such party or
its
performance hereunder.
(i) The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Securities
Administrator, and such notice shall provide contact information for the
Exchange Act Signing Party. If the Depositor and Master Servicer, at any time,
mutually agree to change the identity of the Exchange Act Signing Party, the
Depositor shall provide timely notice to the Securities Administrator of any
such change.
|
Section
6.21.
|
Reporting
Requirements of the Commission.
|
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor and the
Depositor with the provisions of Regulation AB, as such may be amended or
clarified from time to time. Therefore, each of the parties agrees that (a)
the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish compliance with Regulation AB, (b) the parties’ obligations hereunder
will be supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB and (c) the parties
shall comply with reasonable requests made by the Sponsor, the Securities
Administrator or the Depositor for delivery of additional or different
information as the Sponsor, the Securities Administrator or the Depositor may
determine in good faith is necessary to comply with the provisions of Regulation
AB.
|
Section
6.22.
|
No
Merger.
|
The
Trustee shall not cause or otherwise knowingly permit the assets of the Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
|
Section
6.23.
|
Indemnification
by the Securities Administrator.
|
The
Securities Administrator agrees to indemnify the Depositor, the Trustee and
the
Master Servicer, and each of their respective directors, officers, employees
and
agents and the Trust Fund and hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon the engagement of any
Subcontractor in violation of Section 6.01(k) or any failure by the Securities
Administrator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Agreement, including
any report under Sections 9.25(a) or (b). This indemnification shall survive
the
termination of this Agreement or the termination of the Securities Administrator
hereunder.
113
ARTICLE
VII
PURCHASE
AND TERMINATION
OF
THE
TRUST FUND
|
Section
7.01.
|
Termination
of Trust Fund Upon Repurchase or Liquidation of All Mortgage
Loans.
|
(a) The
respective obligations and responsibilities of the Trustee, the Securities
Administrator and the Master Servicer created hereby (other than the obligation
of the Trustee to make payments to Certificateholders as set forth in Section
7.02, the obligation of the Master Servicer to make a final remittance to the
Securities Administrator for deposit into the Certificate Account pursuant
to
Section 4.01 and the obligations of the Master Servicer to the Securities
Administrator and the Trustee pursuant to Sections 9.10 and 9.14), shall
terminate on the earlier of (i) the final payment or other liquidation of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the sale of all remaining property held by the Trust Fund
in
accordance with Section 7.01(b); provided, however, that in no event shall
the
Trust Fund created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
Ambassador of the United States to the Court of St. James’s, living on the date
hereof. Any termination of the Trust Fund shall be carried out in such a manner
so that the termination of each REMIC included therein shall qualify as a
“qualified liquidation” under the REMIC Provisions.
(b) On
any Distribution Date occurring after the date on which (x) the total Scheduled
Principal Balance of the Mortgage Loans in Pools 1 through 3 is less than 10%
of
the Scheduled Principal Balance of the Mortgage Loans in Pool 1, Pool 2 and
Pool
3 (in the aggregate) as of the Cut-off Date or (y) the total Scheduled Principal
Balance of the Mortgage Loans in Pools 4 is less than 10% of the Scheduled
Principal Balance of the Mortgage Loans in Pool 4 as of the Cut-off Date, the
Master Servicer, with the consent of the Seller (which consent will not be
unreasonably withheld), may, upon written direction to the Trustee, cause the
Trustee to sell (or arrange for the sale of) the assets of (x) Pool 1, Pool
2
and Pool 3 (in the aggregate) or (y) Pool 4, and thereby effect the retirement
of the related Certificates. Upon the repurchase of such Mortgage Loans, the
Master Servicer shall, upon written direction to the Trustee, cause each of
REMIC I-1, REMIC I-2 and REMIC I-3 (in the case of a sale of the assets
described in clause (x) above) or each of REMIC II-1 and REMIC II-2 (in the
case
of a sale of the assets described in clause (y) above) to adopt a plan of
complete liquidation pursuant to Section 7.03 hereof to sell all of its
property. The property of the applicable Pool or Pools shall be sold at a price
(the “Repurchase Price”) equal to: (i) 100% of the unpaid principal balance of
each Mortgage Loan in such Pool or Pools on the day of such purchase plus
interest accrued thereon at the applicable Mortgage Rate with respect to any
such Mortgage Loan to the Due Date in the Due Period immediately preceding
such
Distribution Date, (ii) the fair market value of any applicable REO Property
and
any other applicable property (reduced, in the case of REO Property, by (x)
reasonably anticipated disposition costs and (y) any amount by which the fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan), such fair market value to be determined by an appraiser
or appraisers appointed by the Master Servicer with the consent of the Trustee
and (iii) any unreimbursed Servicing Advances with respect to each applicable
Mortgage Loan. The Master Servicer and each Servicer (or the Trustee, if
applicable) shall be reimbursed from the Repurchase Price for any Mortgage
Loan
or related REO Property for any Advances or Servicing Advances made with respect
to the Mortgage Loans that are reimbursable to the Master Servicer under this
Agreement or to each Servicer under the related Servicing Agreement (or to
the
Trustee hereunder), together with any accrued and unpaid compensation and any
other amounts due to the Master Servicer and the Trustee hereunder or the
Custodians or the Servicers under their respective Custodial or Servicing
Agreements, provided that any such compensation or other amount to be paid
to
the Custodians and any such other amounts to be paid to the Servicers are
“unanticipated expenses” within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii). The Securities Administrator shall distribute the assets
of
the applicable Pool or Pools on the Distribution Date on which the repurchase
occurred. Upon the repurchase of all of the Mortgage Loans, the Trust Fund
shall
terminate in accordance with the terms of this Agreement.
114
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund.
|
(a) Notice
of any termination of the Trust Fund (or the retirement of the Certificates
related to Mortgage Group I or Mortgage Group II, as applicable) pursuant to
the
provisions of Section 7.01, specifying the Distribution Date upon which the
final distribution shall be made, shall be given promptly by the Securities
Administrator by first class mail to the applicable Certificateholders mailed
(x) no later than five Business Days after the Securities Administrator has
received notice from the Master Servicer of its intent to exercise its right
to
cause the termination of the Trust Fund pursuant to Section 7.01(b) (or the
retirement of the Certificates related to Mortgage Group I or Mortgage Group
II,
as applicable, to the extent the other such Mortgage Group is not terminated
pursuant to such Section 7.01(b)) or (y) upon the final payment or other
liquidation of the last Mortgage Loan or REO Property in the Trust Fund. Such
notice shall specify (A) the Distribution Date upon which final distribution
on
the Certificates of all amounts required to be distributed to Certificateholders
pursuant to Section 5.02 will be made upon presentation and surrender of the
Certificates at the Corporate Trust Office, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Certificates at the
office or agency of the Securities Administrator therein specified. The
Securities Administrator shall give such notice to the Trustee, the Master
Servicer, the Depositor and the Certificate Registrar at the time such notice
is
given to Holders of the Certificates. Upon any such termination of the entire
Trust Fund, the duties of the Certificate Registrar with respect to the
applicable Certificates shall terminate and the Trustee shall terminate, or
request the Master Servicer to terminate, the Collection Account it maintains,
the Certificate Account and any other account or fund maintained with respect
to
the related Certificates, subject to the Securities Administrator’s obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
115
(b) In
the event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Securities Administrator shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Securities Administrator may take appropriate
steps to contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice
any
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall, subject to applicable state law relating to escheatment,
hold all amounts distributable to such Holders for the benefit of such Holders.
No interest shall accrue on any amount held by the Trustee and not distributed
to a Certificateholder due to such Certificateholder’s failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with
this Section.
(c) Any
reasonable expenses incurred by the Trustee and the Securities Administrator
in
connection with any termination or liquidation of the Trust Fund (or a Mortgage
Group thereof) shall be paid from proceeds received from the liquidation of
the
Trust Fund, but only to the extent that such expenses constitute “unanticipated
expenses” within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii).
|
Section
7.03.
|
Additional
Requirements under the REMIC Provisions.
|
(a) Any
sale pursuant to Section 7.01(b) shall be effected in accordance with the
following additional requirements, unless the Trustee seeks (at the request
of
the party exercising the option to repurchase all of the Mortgage Loans,
pursuant to Section 7.01(b)), and subsequently receives, an Opinion of Counsel
(at the expense of such requesting party), addressed to the Trustee to the
effect that the failure of the Trust Fund to comply with the requirements of
this Section 7.03 will not (i) result in the imposition of taxes on any REMIC
under the REMIC Provisions or (ii) cause any REMIC established hereunder to
fail
to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) in
the case of a sale of the assets of Mortgage Group I:
(A) The
Trustee shall sell all of the assets of Mortgage Group I for cash and, within
90
days of such sale, shall distribute the proceeds of such sale to the Group
I
Certificateholders in complete liquidation of REMIC I-1, REMIC I-2 and REMIC
I-3; and
(B) The
Securities Administrator shall attach a statement to the final Federal income
tax return for each of REMIC I-1, REMIC I-2 and REMIC I-3 stating that pursuant
to Treasury Regulation § 1.860F-1, the first day of the 90-day liquidation
period for each such REMIC was the date on which the Trustee sold such assets;
and
116
(ii) in
the case of a sale of the assets of Mortgage Group II:
(A) The
Trustee shall sell all of the assets of Mortgage Group II for cash and, within
90 days of such sale, shall distribute the proceeds of such sale to the Group
II
Certificateholders in complete liquidation of REMIC II-1 and REMIC II-2;
and
(B) The
Securities Administrator shall attach a statement to the final Federal income
tax return for each of REMIC II-1 and REMIC II-2 stating that pursuant to
Treasury Regulation § 1.860F-1, the first day of the 90-day liquidation period
for each such REMIC was the date on which the Trustee sold such
assets.
(b) By
its acceptance of a Residual Certificate, each Holder thereof hereby (i)
authorizes the Trustee to take the action described in paragraph (a) above
and
(ii) agrees to take such other action as may be necessary to facilitate
liquidation of any REMIC created under this Agreement, which authorization
shall
be binding upon all successor Residual Certificateholders.
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
(a) The
death or incapacity of any Certificateholder shall not operate to terminate
this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or the operation
and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Class Notional
Amount) of Certificates of each Class affected thereby 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 cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given such Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
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 whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or 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 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.
117
|
Section
8.02.
|
Access
to List of Holders.
|
(a) If
the Trustee is not acting as Certificate Registrar, the Certificate Registrar
will furnish or cause to be furnished to the Trustee, within fifteen days after
receipt by the Certificate Registrar of a request by the Trustee in writing,
a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Certificateholders of each Class as of the most recent Record
Date.
(b) If
three or more Holders or Certificate Owners (hereinafter referred to as
“Applicants”) apply in writing to the Securities Administrator, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates
and
is accompanied by a copy of the communication which such Applicants propose
to
transmit, then the Securities Administrator shall, within five Business Days
after the receipt of such application, afford such Applicants reasonable access
during the normal business hours of the Securities Administrator to the most
recent list of Certificateholders held by the Securities Administrator or shall,
as an alternative, send, at the Applicants’ expense, the written communication
proffered by the Applicants to all Certificateholders at their addresses as
they
appear in the Certificate Register.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Securities
Administrator, the Master Servicer, the Certificate Registrar and the Trustee
that neither the Depositor, the Securities Administrator, the Master Servicer,
the Certificate Registrar nor the Trustee shall be held accountable by reason
of
the disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee, the Securities Administrator and,
where expressly required herein, to the Master Servicer. Such instrument or
instruments (as the action embodies therein and evidenced thereby) are herein
sometimes referred to as an “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agents shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee, the Securities Administrator and Master
Servicer, if made in the manner provided in this Section. Each of the Trustee,
the Securities Administrator and Master Servicer shall promptly notify the
others of receipt of any such instrument by it, and shall promptly forward
a
copy of such instrument to the others.
118
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments or deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Whenever such execution
is
by an officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The
ownership of Certificates (whether or not such Certificates shall be overdue
and
notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Trustee) shall be proved by the Certificate Register,
and
none of the Trustee, the Securities Administrator, the Master Servicer and
the
Depositor shall be affected by any notice to the contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate shall bind every future Holder of the
same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefore or in lieu thereof,
in
respect of anything done, omitted or suffered to be done by the Trustee, the
Securities Administrator or the Master Servicer in reliance thereon, whether
or
not notation of such action is made upon such Certificate.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER
|
Section
9.01.
|
Duties
of the
Master Servicer.
|
The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Aurora Loan Services LLC, as Master Servicer. For and on behalf of
the
Depositor, the Trustee and the Certificateholders, the Master Servicer shall
master service the Mortgage Loans in accordance with the provisions of this
Agreement and the provisions of the applicable Servicing
Agreement.
119
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
|
(a) The
Master Servicer, at its expense, shall maintain in effect a 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 that would meet
the requirements of FNMA or FHLMC if it were the purchaser of the Mortgage
Loans. The Master Servicer shall (i) require each Servicer to maintain an Errors
and Omissions Insurance Policy and a Fidelity Bond in accordance with the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer
to
provide to the Master Servicer certificates evidencing that such policy and
bond
is in effect and to furnish to the Master Servicer any notice of cancellation,
non-renewal or modification of the policy or bond received by it, as and to
the
extent provided in the applicable Servicing Agreement, and (iii) furnish copies
of the certificates and notices referred to in clause (ii) to the Trustee upon
its request. The Fidelity Bond and Errors and Omissions Insurance Policy may
be
obtained and maintained in blanket form.
(b) The
Master Servicer shall promptly report to the Trustee any material changes that
may occur in the Master Servicer Fidelity Bond or the Master Servicer Errors
and
Omissions Insurance Policy and shall furnish to the Trustee, on request,
certificates evidencing that such bond and insurance policy are in full force
and effect. The Master Servicer shall promptly report to the Trustee all cases
of embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses, regardless of whether claims are filed with the
applicable insurer or surety, shall be disclosed in such reports together with
the amount of such losses covered by insurance. If a bond or insurance claim
report is filed with any of such bonding companies or insurers, the Master
Servicer shall promptly furnish a copy of such report to the Trustee. Any
amounts relating to the Mortgage Loans collected by the Master Servicer under
any such bond or policy shall be promptly remitted by the Master Servicer to
the
Securities Administrator for deposit into the Certificate Account. Any amounts
relating to the Mortgage Loans collected by any Servicer under any such bond
or
policy shall be remitted to the Master Servicer to the extent provided in the
applicable Servicing Agreement.
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee, each Rating Agency and the Depositor a copy of its annual unaudited
financial statements on or prior to March 15th
of each
year commencing on March 15, 2007. Such financial statements shall include
a
balance sheet, income statement, statement of retained earnings, statement
of
additional paid-in capital, statement of changes in financial position and
all
related notes and schedules and shall be in comparative form, certified by
a
nationally recognized firm of Independent Accountants to the effect that such
statements were examined and prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of the preceding
year.
120
|
Section
9.04.
|
Power
to Act; Procedures.
|
(a) The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, and each Servicer shall have full power and authority (to
the
extent provided in the applicable Servicing Agreement) to do any and all things
that it may deem necessary or desirable in connection with the servicing and
administration of the Mortgage Loans, including but not limited to the power
and
authority (i) to execute and deliver, on behalf of the Certificateholders and
the Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds
and Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the applicable
Servicing Agreement, as applicable; provided that the Master Servicer shall
not
take, or knowingly permit any Servicer to take, any action that is inconsistent
with or prejudices the interests of the Trust Fund or the Certificateholders
in
any Mortgage Loan or the rights and interests of the Depositor, the Trustee
and
the Certificateholders under this Agreement. The Master Servicer further is
authorized and empowered by the Trustee, on behalf of the Certificateholders
and
the Trustee, in its own name or in the name of any Servicer, when the Master
Servicer or a Servicer, as the case may be, believes it is appropriate in its
best judgment to register any Mortgage Loan with MERS, 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. The Master Servicer
shall represent and protect the interests of the Trust Fund in the same manner
as it protects its own interests in mortgage loans in its own portfolio in
any
claim, proceeding or litigation regarding a Mortgage Loan and shall not make
or
knowingly permit any Servicer to make any modification, waiver or amendment
of
any term of any Mortgage Loan that would cause any REMIC included in the Trust
Fund to fail to qualify as a REMIC or result in the imposition of any tax under
Section 860F(a) or Section 860G(d) of the Code. Without limiting the generality
of the foregoing, the Master Servicer in its own name or in the name of a
Servicer, and each Servicer, to the extent such authority is delegated to such
Servicer by the Master Servicer under the applicable Servicing Agreement, is
hereby authorized and empowered by the Trustee when the Master Servicer or
a
Servicer, as the case may be, believes it appropriate in its best judgment
and
in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, to execute and deliver, on behalf of itself and the
Certificateholders, the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. The Trustee shall furnish the Master
Servicer or a Servicer, upon request, with any powers of attorney prepared
by
the Master Servicer or such Servicer empowering the Master Servicer or such
Servicer to execute and deliver instruments of satisfaction or cancellation,
or
of partial or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property, in accordance
with the applicable Servicing Agreement and this Agreement, and the Trustee
shall execute and deliver such other documents, as the Master Servicer may
request, necessary or appropriate to enable the Master Servicer to master
service the Mortgage Loans and carry out its duties hereunder and to allow
each
Servicer to service the Mortgage Loans, in each case in accordance with Accepted
Servicing Practices (and the Trustee shall have no liability for misuse of
any
such powers of attorney by the Master Servicer or the applicable Servicer).
If
the Master Servicer or the Trustee has been advised that it is likely that
the
laws of the state in which action is to be taken prohibit such action if taken
in the name of the Trustee or that the Trustee would be adversely affected
under
the “doing business” or tax laws of such state if such action is taken in its
name, then upon request of the Trustee, the Master Servicer shall join with
the
Trustee in the appointment of a co-trustee pursuant to Section 6.09 hereof.
In
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.
121
(b) In
master servicing and administering the Mortgage Loans, the Master Servicer
shall
employ procedures and exercise the same care that it customarily employs and
exercises in master servicing and administering loans for its own account,
giving due consideration to Accepted Servicing Practices where such practices
do
not conflict with this Agreement. Consistent with the foregoing, the Master
Servicer may, and may permit any Servicer to, in its discretion (i) waive any
late payment charge (but not any Prepayment Penalty Amount, except as set forth
below) and (ii) extend the due dates for payments due on a Mortgage Note for
a
period not greater than 120 days; provided, however, that the maturity of any
Mortgage Loan shall not be extended past the date on which the final payment
is
due on the latest maturing Mortgage Loan as of the Cut-off Date. In the event
of
any extension described in clause (ii) above, the Master Servicer shall make
or
cause to be made Advances on the related Mortgage Loan in accordance with the
provisions of Section 5.04 on the basis of the amortization schedule of such
Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master Servicer
shall not make or knowingly permit any modification, waiver or amendment of
any
material term of any Mortgage Loan unless: (1) such Mortgage Loan is in default
or default by the related Mortgagor is, in the reasonable judgment of the Master
Servicer or the applicable Servicer, reasonably foreseeable, (2) in the case
of
a waiver of a Prepayment Penalty Amount if (a) such Mortgage Loan is in default
or default by the related Mortgagor is reasonably foreseeable, and such waiver
would maximize recovery of total proceeds taking into account the value of
such
Prepayment Penalty Amount and the related Mortgage Loan or (b) the prepayment
is
not the result of a refinance by the Servicer or any of its affiliates and
(i)
such Mortgage Loan is in default or default by the related Mortgagor is, in
the
reasonable judgment of the Master Servicer or the applicable Servicer,
reasonably foreseeable, and such waiver would maximize recovery of total
proceeds taking into account the value of such Prepayment Penalty Amount and
the
related Mortgage Loan or (ii) the collection of the Prepayment Penalty Amount
would be in violation of applicable laws or (iii) the collection of such
Prepayment Penalty Amount would be considered “predatory” pursuant to written
guidance published or issued by any applicable federal, state or local
regulatory authority acting in its official capacity and having jurisdiction
over such matters, and (3) the Master Servicer shall have provided or caused
to
be provided to the Trustee an Opinion of Counsel (which opinion shall, if
provided by the Master Servicer, be an expense reimbursed, to the extent it
is
an unanticipated expense within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii) from the Collection Account pursuant to Section 4.02(v))
in
writing to the effect that such modification, waiver or amendment would not
cause an Adverse REMIC Event; provided, in no event shall an Opinion of Counsel
be required for the waiver of a Prepayment Penalty Amount under clause (2)
above.
122
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Section
9.05.
|
Servicing
Agreements Between the Master Servicer and Servicers; Enforcement
of
Servicers’ Obligations.
|
(a) Each
Servicing Agreement requires the applicable Servicer to service the Mortgage
Loans in accordance with the provisions thereof. References in this Agreement
to
actions taken or to be taken by the Master Servicer include such actions taken
or to be taken by a Servicer pursuant to a Servicing Agreement. Any fees, costs
and expenses and other amounts payable to such Servicers shall be deducted
from
amounts remitted to the Master Servicer by the applicable Servicer (to the
extent permitted by the applicable Servicing Agreement) and shall not be an
obligation of the Trust, the Trustee or the Master Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect to
the
servicing of any Mortgage Loan that the related Servicer is not required to
take
under the related Servicing Agreement and (ii) cause a Servicer to take any
action or refrain from taking any action if the related Servicing Agreement
does
not require the Servicer to take such action or refrain from taking such action;
in both cases notwithstanding any provision of this Agreement that requires
the
Master Servicer to take such action or cause the Servicer to take such
action.
(c) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of each Servicer under the related Servicing
Agreement, and shall use its reasonable best efforts to enforce the obligations
of each Servicer under the related Servicing Agreement and shall, upon its
obtaining actual knowledge of the failure of a Servicer to perform its
obligations in accordance with the related Servicing Agreement, to the extent
that the non-performance of any such obligations would have a material adverse
effect on a Mortgage Loan, the Trust Fund or Certificateholders, terminate
the
rights and obligations of such Servicer thereunder to the extent and in the
manner permitted by the related Servicing Agreement and either act as servicer
of the related Mortgage Loans or enter into a Servicing Agreement with a
successor Servicer. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Servicing Agreements and the pursuit
of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
and
shall be reimbursed therefore initially only (i) from a general recovery
resulting from such enforcement only to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loans, (ii) from
a
specific recovery of costs, expenses or attorneys’ fees against the party
against whom such enforcement is directed, and then, to the extent that such
amounts are insufficient to reimburse the Master Servicer for the costs of
such
enforcement or (iii) from the Collection Account.
(d) The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicers under the terms of the applicable
Servicing Agreement, in its preparation of any certifications, filings or
reports, in accordance with the terms hereof or as may be required by applicable
law or regulation.
123
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
(a) To
the extent provided in the applicable Servicing Agreement, the Master Servicer
shall cause each Servicer to establish and maintain one or more custodial
accounts at a depository institution (which may be a depository institution
with
which the Master Servicer or any Servicer establishes accounts in the ordinary
course of its servicing activities), the accounts of which are insured to the
maximum extent permitted by the FDIC (each, an “Escrow Account”) and shall
deposit therein any collections of amounts received with respect to amounts
due
for taxes, assessments, water rates, Standard Hazard Insurance Policy premiums
or any comparable items for the account of the Mortgagors. Withdrawals from
any
Escrow Account may be made (to the extent amounts have been escrowed for such
purpose) only in accordance with the applicable Servicing Agreement. Each
Servicer shall be entitled to all investment income not required to be paid
to
Mortgagors on any Escrow Account maintained by such Servicer. The Master
Servicer shall make (or cause to be made) to the extent provided in the
applicable Servicing Agreement advances to the extent necessary in order to
effect timely payment of taxes, water rates, assessments, Standard Hazard
Insurance Policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails, to
pay
such items), provided that it has determined that the funds so advanced are
recoverable from escrow payments, reimbursement pursuant to Section 4.02(v)
or
otherwise.
(b) Costs
incurred by the Master Servicer or by Servicers in effecting the timely payment
of taxes and assessments on the properties subject to the Mortgage Loans may
be
added to the amount owing under the related Mortgage Note where the terms of
the
Mortgage Note so permit; provided, however, that the addition of any such cost
shall not be taken into account for purposes of calculating the distributions
to
be made to Certificateholders. Such costs, to the extent that they are
unanticipated expenses within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii) shall be recoverable by the Master Servicer pursuant to
Section 4.02(v).
|
Section
9.07.
|
Termination
of Servicing Agreements; Successor Servicers.
|
(a) The
Master Servicer shall be entitled to terminate the rights and obligations of
any
Servicer under the applicable Servicing Agreement in accordance with the terms
and conditions of such Servicing Agreement and without any limitation by virtue
of this Agreement; provided, however, that in the event of termination of any
Servicing Agreement by the Master Servicer or the related Servicer, the Master
Servicer shall either act as Servicer of the related Mortgage Loans, or enter
into a Servicing Agreement with a successor Servicer.
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer of
servicing to a successor Servicer. The Master Servicer shall be entitled to
be
reimbursed from each Servicer (or by the Trust Fund, if such Servicer is unable
to fulfill its obligations hereunder) for all costs associated with the transfer
of servicing from the predecessor servicer, including without limitation, any
costs or expenses associated with the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data, as may
be
required by the Master Servicer to correct any errors or insufficiencies in
the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
(b) If
the Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the Servicer, if any, that it replaces. The
Master Servicer shall use reasonable efforts to have the successor Servicer
assume liability for the representations and warranties made by the terminated
Servicer in respect of the related Mortgage Loans, and in the event of any
such
assumption by the successor Servicer, the Trustee or the Master Servicer, as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
124
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee and the Certificateholders in accordance with the provisions
of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of such Servicing Agreements or
arrangements. The Master Servicer shall use commercially reasonable efforts
to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce the
provisions of each Servicing Agreement for the benefit of the
Certificateholders. The Master Servicer shall be entitled to enter into any
agreement with the Servicers for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall
have no liability for the acts or omissions of any Servicer in the performance
by such Servicer of its obligations under the related Servicing
Agreement.
|
Section
9.09.
|
No
Contractual Relationship Between Servicers and Trustee or
Depositor.
|
Any
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving a Servicer in its capacity
as
such and not as an originator shall be deemed to be between such Servicer,
the
Seller and the Master Servicer, and the Trustee, the Securities Administrator
and the Depositor shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to such Servicer except
as set forth in Section 9.10 hereof.
|
Section
9.10.
|
Assumption
of Servicing Agreement by Securities Administrator.
|
(a) In
the event the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default under this Agreement),
after a period not to exceed ninety days after the Securities Administrator
receives written notice from the Trustee pursuant to Section 6.14 or Section
9.28, as applicable, the Securities Administrator shall thereupon assume all
of
the rights and obligations of such Master Servicer hereunder and enforce the
rights under each Servicing Agreement entered into with respect to the Mortgage
Loans. The Securities Administrator, its designee or any successor master
servicer appointed by the Securities Administrator or the Trustee shall be
deemed to have assumed all of the Master Servicer’s interest herein and therein
to the same extent as if such Servicing Agreement had been assigned to the
assuming party, except that the Master Servicer shall not thereby be relieved
of
any liability or obligations of the Master Servicer under such Servicing
Agreement accruing prior to its replacement as Master Servicer, and shall be
liable to the Securities Administrator, and hereby agrees to indemnify and
hold
harmless the Securities Administrator from and against all costs, damages,
expenses and liabilities (including reasonable attorneys’ fees) incurred by the
Securities Administrator as a result of such liability or obligations of the
Master Servicer and in connection with the Securities Administrator’s assumption
(but not its performance, except to the extent that costs or liability of the
Securities Administrator are created or increased as a result of negligent
or
wrongful acts or omissions of the Master Servicer prior to its replacement
as
Master Servicer) of the Master Servicer’s obligations, duties or
responsibilities thereunder; provided that the Master Servicer shall not
indemnify or hold harmless the Securities Administrator against negligent or
willful misconduct of the Securities Administrator.
125
(b) The
Master Servicer that has been terminated shall, upon request of the Securities
Administrator but at the expense of such Master Servicer or at the expense
of
the Trust Fund, deliver to the assuming party all documents and records relating
to each Servicing Agreement and the related Mortgage Loans and an accounting
of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of each Servicing Agreement to the assuming
party.
|
Section
9.11.
|
“Due-on-Sale”
Clauses; Assumption Agreements.
|
(a) To
the extent provided in the applicable Servicing Agreement, to the extent
Mortgage Loans contain enforceable due-on-sale clauses, and to the extent that
the Master Servicer has knowledge of the conveyance of a Mortgaged Property,
the
Master Servicer shall use its reasonable best efforts to cause the Servicers
to
enforce such clauses in accordance with the applicable Servicing Agreement.
If
applicable law prohibits the enforcement of a due-on-sale clause or such clause
is otherwise not enforced in accordance with the applicable Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may
be
released from liability in accordance with the applicable Servicing
Agreement.
(b) The
Master Servicer or the related Servicer, as the case may be, shall be entitled
to approve a request from a Mortgagor for the granting of an easement thereon
in
favor of another Person or any alteration or demolition of the related Mortgaged
Property if it has determined, exercising its good faith business judgment
in
the same manner as it would if it were the owner of the related Mortgage Loan,
that the security for, and the timely and full collectability of, such Mortgage
Loan would not be materially adversely affected thereby. Any fee collected
by
the Master Servicer or the related Servicer for processing such a request will
be retained by the Master Servicer or such Servicer as additional servicing
compensation.
|
Section
9.12.
|
Release
of Mortgage Files.
|
(a) Upon
(i) becoming aware of the payment in full of any Mortgage Loan, (ii) the receipt
by the Master Servicer of a notification that payment in full has been or will
be escrowed in a manner customary for such purposes, or (iii) in the case of
a
Mortgage Loan as to which the related Mortgaged Property is located in
California, receipt by the Master Servicer of notification from the applicable
Servicer that the Servicer reasonably expects that payment in full will be
received promptly, the Master Servicer will, or will cause the applicable
Servicer to, promptly notify the Trustee (or the applicable Custodian) by a
certification (which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment that
are
required to be deposited in the Collection Account maintained by the Master
Servicer pursuant to Section 4.01 have been or will be so deposited) of a
Servicing Officer and shall request the Trustee or the applicable Custodian,
to
deliver to the applicable Servicer the related Mortgage File. In lieu of sending
a hard copy certification of a Servicing Officer, the Master Servicer may,
or
may cause the Servicer to, deliver the request for release in a mutually
agreeable electronic format. To the extent that such a request, on its face,
originates from a Servicing Officer, no signature shall be required. Upon
receipt of such certification and request, the Trustee or the applicable
Custodian, shall promptly release the related Mortgage File to the applicable
Servicer and neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File. The Master Servicer is
authorized, and each Servicer, to the extent such authority is delegated to
such
Servicer by the Master Servicer under the applicable Servicing Agreement, is
authorized, to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as
the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefore 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.
126
(b) From
time to time and as appropriate for the servicing or foreclosure of, or other
legal proceedings relating to, any Mortgage Loan and in accordance with Accepted
Servicing Practices and the applicable Servicing Agreement, the Trustee shall
execute such pleadings, request for trustee’s sale or other documents as shall
be prepared and furnished to the Trustee by the Master Servicer, or by a
Servicer (in form reasonably acceptable to the Trustee) and as are necessary
to
the prosecution of any such proceedings. The Trustee or the Custodian, shall,
upon request of the Master Servicer, or of a Servicer, and delivery to the
Trustee or the applicable Custodian, of a trust receipt signed by a Servicing
Officer substantially in the form annexed hereto as Exhibit C or in the form
annexed to the applicable Custodial Agreement as Exhibit C, release the related
Mortgage File held in its possession or control to the Master Servicer (or
the
applicable Servicer). Such trust receipt shall obligate the Master Servicer
or
applicable Servicer to return the Mortgage File to the Trustee or Custodian,
as
applicable, when the need therefore by the Master Servicer or applicable
Servicer no longer exists unless (i) the Mortgage Loan shall be liquidated,
in
which case, upon receipt of a certificate of a Servicing Officer similar to
that
herein above specified, the trust receipt shall be released by the Trustee
or
the Custodian, as applicable, to the Master Servicer (or the applicable
Servicer) or (ii) the Mortgage File has been delivered directly or through
a
Servicer to an attorney, or to a public trustee or other public official as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially
or
non-judicially, and the Master Servicer has delivered directly or through a
Servicer to the Trustee a certificate of a Servicing Officer certifying as
to
the name and address of the Person to which such Mortgage File or such document
was delivered and the purpose or purposes of such delivery.
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
(a) The
Master Servicer shall transmit, or cause the applicable Servicer to transmit,
to
the Trustee such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the terms
hereof to be delivered to the Trustee. Any funds received by the Master Servicer
or by a Servicer in respect of any Mortgage Loan or which otherwise are
collected by the Master Servicer or by a Servicer as a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall
be held for the benefit of the Trustee and the Certificateholders subject to
the
Master Servicer’s right to retain or withdraw from the Collection Account the
Master Servicing Fee and other amounts provided in this Agreement, and to the
right of each Servicer to retain its Servicing Fee and other amounts as provided
in the applicable Servicing Agreement. The Master Servicer shall, and shall
(to
the extent provided in the applicable Servicing Agreement) cause each Servicer
to, provide access to information and documentation regarding the Mortgage
Loans
to the Trustee, 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.
127
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or any Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by such Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property
of
the Trustee; provided, however, that the Master Servicer and each Servicer
shall
be entitled to setoff against, and deduct from, any such funds any amounts
that
are properly due and payable to the Master Servicer or such Servicer under
this
Agreement or the applicable Servicing Agreement and shall be authorized to
remit
such funds to the Securities Administrator in accordance with this
Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution of
this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Seller
to
the Depositor not to constitute a sale, the Trustee shall have a security
interest in the Mortgage Loans and in all Mortgage Files representing such
Mortgage Loans and in all funds and investment property now or hereafter held
by, or under the control of, a Servicer or the Master Servicer that are
collected by such Servicer or the Master Servicer in connection with the
Mortgage Loans, whether as scheduled installments of principal and interest
or
as full or partial prepayments of principal or interest or as a Subsequent
Recovery, Liquidation Proceeds or Insurance Proceeds or otherwise, and in all
proceeds of the foregoing and proceeds of proceeds (but excluding any fee or
other amounts to which such Servicer is entitled under the applicable Servicing
Agreement, or the Master Servicer or the Depositor is entitled to hereunder);
and the Master Servicer agrees that so long as the Mortgage Loans are assigned
to and held by the Trustee or any Custodian, all documents or instruments
constituting part of the Mortgage Files, and such funds relating to the Mortgage
Loans which come into the possession or custody of, or which are subject to
the
control of, the Master Servicer or any Servicer shall be held by the Master
Servicer or such Servicer for and on behalf of the Trustee as the Trustee’s
agent and bailee for purposes of perfecting the Trustee’s security interest
therein as provided by the applicable Uniform Commercial Code or other
laws.
128
(d) The
Master Servicer agrees that it shall not, and shall not authorize any Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any custodial account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
|
Section
9.14.
|
Representations
and Warranties of the Master Servicer.
|
(a) The
Master Servicer hereby represents and warrants to the Depositor, the Securities
Administrator and the Trustee, for the benefit of the Certificateholders, as
of
the Closing Date that:
(i) it
is validly existing and in good standing under the jurisdiction of its
formation, and as Master Servicer has full power and authority to transact
any
and all business contemplated by this Agreement and to execute, deliver and
comply with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A) violate
the Master Servicer’s charter or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C) constitute
a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party or by
which it is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master Servicer’s
ability to perform its obligations under this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
129
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is the
servicing of conventional residential mortgage loans, is an FNMA- and FHLMC-
approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer; and
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and a
Fidelity Bond in accordance with Section 9.02, each of which is in full force
and effect, and each of which provides at least such coverage as is required
hereunder.
(b) It
is understood and agreed that the representations and warranties set forth
in
this Section 9.14 shall survive the execution and delivery of this Agreement.
The Master Servicer shall indemnify the Depositor, the Securities Administrator
and the Trustee and hold them harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs
and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Master Servicer’s
representations and warranties contained in Section 9.14(a). Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not be
liable for special, indirect or consequential losses or damages of any kind
whatsoever (including, but not limited to, lost profits). It is understood
and
agreed that the enforcement of the obligation of the Master Servicer set forth
in this Section to indemnify the Depositor, the Securities Administrator and
the
Trustee as provided in this Section constitutes the sole remedy (other than
as
set forth in Section 6.14) of the Depositor, the Securities Administrator and
the Trustee, respecting a breach of the foregoing representations and
warranties. Such indemnification shall survive any termination of the Master
Servicer as Master Servicer hereunder, and any termination of this
Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by any of the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or notice thereof by any one of such
parties to the other parties.
130
(c) It
is understood and agreed that the representations and warranties of the
Depositor set forth in Sections 2.03(a)(i) through (vi) shall survive the
execution and delivery of this Agreement. The Depositor shall indemnify the
Master Servicer and hold it harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs
and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Depositor’s representations
and warranties contained in Sections 2.03(a)(i) through (vi). It is understood
and agreed that the enforcement of the obligation of the Depositor set forth
in
this Section to indemnify the Master Servicer as provided in this Section
constitutes the sole remedy of the Master Servicer respecting a breach by the
Depositor of the representations and warranties in Sections 2.03(a)(i) through
(vi).
Any
cause
of action against the Depositor relating to or arising out of the breach of
the
representations and warranties made in Sections 2.03(a)(i) through (vi) shall
accrue upon discovery of such breach by either the Depositor or the Master
Servicer or notice thereof by any one of such parties to the other
parties.
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Section
9.15.
|
Closing
Certificate and Opinion.
|
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Trustee and ▇▇▇▇▇▇ Brothers Inc. an Opinion of Counsel, dated
the
Closing Date, in form and substance reasonably satisfactory to the Depositor
and
▇▇▇▇▇▇ Brothers Inc., as to the due authorization, execution and delivery of
this Agreement by the Master Servicer and the enforceability
thereof.
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Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by each Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
It is understood and agreed that such insurance shall be with insurers meeting
the eligibility requirements set forth in the applicable Servicing Agreement
and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional
insurance.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the Mortgagor in accordance
with
the Master Servicer’s or the Servicer’s normal servicing procedures and Accepted
Servicing Practices) shall be deposited into the Collection Account, subject
to
withdrawal pursuant to Section 4.02. Any cost incurred by the Master Servicer
or
any Servicer in maintaining any such insurance if the Mortgagor defaults in
its
obligation to do so shall be added to the amount owing under the Mortgage Loan
where the terms of the Mortgage Loan so permit; provided, however, that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Section
4.02(v).
131
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Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
The
Master Servicer shall, or shall cause each Servicer (to the extent provided
in
the applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies
with
respect to the Mortgage Loans, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured’s claim) as shall be
necessary to realize recovery under such policies. Any proceeds disbursed to
the
Master Servicer (or disbursed to a Servicer and remitted to the Master Servicer)
in respect of such policies or bonds shall be promptly deposited in the
Collection Account upon receipt, except that any amounts realized that are
to be
applied to the repair or restoration of the related Mortgaged Property or
release to the Mortgagor in accordance with the Master Servicer’s or the
Servicer’s normal servicing procedures need not be so deposited (or
remitted).
|
Section
9.18.
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
(a) The
Master Servicer shall not take, or knowingly permit any Servicer (consistent
with the applicable Servicing Agreement) to take, any action that would result
in non-coverage under any applicable Primary Mortgage Insurance Policy of any
loss which, but for the actions of such Master Servicer or Servicer, would
have
been covered thereunder. To the extent that coverage is available, the Master
Servicer shall use its best reasonable efforts to keep in force and effect,
or
to cause each 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 and the related Servicing Agreement, as applicable.
The Master Servicer shall not, and shall not permit any Servicer to, cancel
or
refuse to renew any such Primary Mortgage Insurance Policy that is in effect
at
the date of the initial issuance of the Certificates and is required to be
kept
in force hereunder except as required by a applicable law or in accordance
with
the provisions of this Agreement and the related Servicing Agreement, as
applicable.
(b) The
Master Servicer agrees to present, or to cause each Servicer to present, on
behalf of the Trustee and the Certificateholders, claims to the insurer under
any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Section 4.01, any amounts collected by the Master Servicer or any Servicer
under
any Primary Mortgage Insurance Policies shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 4.02.
|
Section
9.19.
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
The
Trustee (or the applicable Custodian, as directed by the Trustee), shall retain
possession and custody of the originals of the Primary Mortgage Insurance
Policies or certificate of insurance if applicable and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer otherwise
has
fulfilled its obligations under this Agreement, the Trustee (or the applicable
Custodian, as directed by the Trustee) shall also retain possession and custody
of each Mortgage File in accordance with and subject to the terms and conditions
of this Agreement. The Master Servicer shall promptly deliver or cause to be
delivered to the Trustee (or the applicable Custodian, as directed by the
Trustee), upon the execution or receipt thereof the originals of the Primary
Mortgage Insurance Policies and any certificates of renewal thereof, and such
other documents or instruments that constitute portions of the Mortgage File
that come into the possession of the Master Servicer from time to
time.
132
|
Section
9.20.
|
Realization
Upon Defaulted Mortgage Loans.
|
The
Master Servicer shall use its reasonable best efforts to, or to cause each
Servicer to, foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments, all in accordance with the
applicable Servicing Agreement. Alternatively, the Master Servicer may take,
or
authorize any Servicer to take, other actions in respect of a defaulted Mortgage
Loan, which may include (i) accepting a short sale (a payoff of the
Mortgage Loan for an amount less than the total amount contractually owed in
order to facilitate a sale of the Mortgaged Property by the Mortgagor) or
permitting a short refinancing (a payoff of the Mortgage Loan for an amount
less
than the total amount contractually owed in order to facilitate refinancing
transactions by the Mortgagor not involving a sale of the Mortgaged Property),
(ii) arranging for a repayment plan or (iii) agreeing to a
modification in accordance with Section 9.04. In connection with such
foreclosure or other conversion or action, the Master Servicer shall, consistent
with Section 9.18, follow such practices and procedures as it shall reasonably
determine to be in the best interests of the Trust Fund and the
Certificateholders and which shall be consistent with its customary practices
in
performing its general mortgage servicing activities; provided that the Master
Servicer shall not be liable in any respect hereunder if the Master Servicer
is
acting in connection with any such foreclosure or other conversion or action
in
a manner that is consistent with the provisions of this Agreement. Neither
the
Master Servicer, nor any Servicer, shall be required to expend its own funds
or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or toward the correction of any
default on a related senior mortgage loan, or towards the restoration of any
property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan
to
the Certificateholders after reimbursement to itself for such expenses or
charges and (ii) that such expenses and charges will be recoverable to it
through Liquidation Proceeds or Insurance Proceeds (as provided in Section
4.02).
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
The
Master Servicer shall (i) be entitled, at its election, either (a) to pay itself
the Master Servicing Fee, in respect of the Mortgage Loans out of any Mortgagor
payment on account of interest prior to the deposit of such payment in the
Collection Account it maintains or (b) to withdraw from the Collection Account
the Master Servicing Fee to the extent permitted by Section 4.02(iv). The Master
Servicer shall also be entitled, at its election, either (a) to pay itself
the
Master Servicing Fee in respect of each delinquent Mortgage Loan master serviced
by it out of Liquidation Proceeds in respect of such Mortgage Loan or other
recoveries with respect thereto to the extent permitted in Section 4.02 or
(b)
to withdraw from the Collection Account it maintains the Master Servicing Fee
in
respect of each Liquidated Mortgage Loan to the extent of such Liquidation
Proceeds or other recoveries, to the extent permitted by Section 4.02. Servicing
compensation in the form of assumption fees, if any, late payment charges,
as
collected, if any, or otherwise (but not including any Prepayment Penalty
Amount) shall be retained by the Master Servicer (or the applicable Servicer)
and shall not be deposited in the Collection Account. If the Master Servicer
does not retain or withdraw the Master Servicing Fee from the Collection Account
as provided herein, the Master Servicer shall be entitled to direct the Trustee
to pay the Master Servicing Fee to such Master Servicer by withdrawal from
the
Certificate Account to the extent that payments have been received with respect
to the applicable Mortgage Loan. 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 therefore except as provided in this
Agreement. Pursuant to Section 4.01(e), all income and gain realized from any
investment of funds in the Collection Account shall be for the benefit of the
Master Servicer as additional compensation. The provisions of this Section
9.21
are subject to the provisions of Section 6.14(b).
133
|
Section
9.22.
|
REO
Property.
|
(a) In
the event the Trust Fund acquires ownership of any REO Property in respect
of
any Mortgage Loan, the deed or certificate of sale shall be issued to the
Trustee, or to its nominee, on behalf of the Certificateholders. The Master
Servicer shall use its reasonable best efforts to sell, or, to the extent
provided in the applicable Servicing Agreement, cause the applicable Servicer
to
sell, any REO Property as expeditiously as possible and in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as applicable,
but in all events within the time period, and subject to the conditions set
forth in Article X hereof. Pursuant to its efforts to sell such REO Property,
the Master Servicer shall protect and conserve, or cause the applicable Servicer
to protect and conserve, such REO Property in the manner and to such extent
required by the applicable Servicing Agreement, subject to Article X
hereof.
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from any Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances as well as any unpaid Master Servicing Fees or Servicing Fees from
Liquidation Proceeds received in connection with the final disposition of such
REO Property; provided, that (without limitation of any other right of
reimbursement that the Master Servicer or any Servicer shall have hereunder)
any
such unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees may be reimbursed or paid, as the case may be, prior to final
disposition, out of any net rental income or other net amounts derived from
such
REO Property.
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net of
any
payment to the Master Servicer and the applicable Servicer as provided above,
shall be deposited in the Collection Account on or prior to the Determination
Date in the month following receipt thereof (and the Master Servicer shall
provide written notice to the Securities Administrator upon such deposit) and
be
remitted by wire transfer in immediately available funds to the Trustee for
deposit into the Certificate Account on the next succeeding Deposit
Date.
134
|
Section
9.23.
|
Notices
to the Depositor and the Securities Administrator
|
(a) The
Master Servicer shall promptly notify the Securities Administrator, the Sponsor
and the Depositor (i) of any legal proceedings pending against the Master
Servicer of the type described in Item 1117 (§ 229.1117) of Regulation AB and
(ii) if the Master Servicer shall become (but only to the extent not previously
disclosed to the Master Servicer and the Depositor) at any time an affiliate
of
any of the parties listed on Exhibit R to this Agreement. On or before March
1st
of each
year, the Depositor shall distribute the information in Exhibit R to the Master
Servicer.
(b) Not
later than four Business Days prior to the Distribution Date of each month,
the
Master Servicer shall provide to the Securities Administrator, the Sponsor
and
the Depositor notice of the occurrence of any material modifications, extensions
or waivers of terms, fees, penalties or payments relating to the Mortgage Loans
during the related Collection Period or that have cumulatively become material
over time (Item 1121(a)(11) of Regulation AB) along with all information, data,
and materials related thereto as may be required to be included in the related
Distribution Report on Form 10-D. The parties to this Agreement acknowledge
that
the performance by the Master Servicer of its duties under this Section 9.23(b)
related to the timely preparation and delivery of such information is contingent
upon each applicable Servicer strictly observing all requirements and deadlines
in the performance of their duties under their related Servicing Agreements.
The
Master Servicer shall have no liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare and/or timely
deliver all such information where such failure results from the Master
Servicer’s inability or failure to obtain or receive, on a timely basis, any
information from any Servicer needed to prepare or deliver such information,
which failure does not result from the Master Servicer’s own negligence, bad
faith or willful misconduct.
|
Section
9.24.
|
Reports
to the Trustee and the Securities Administrator.
|
(a) Not
later than 30 days after each Distribution Date, the Master Servicer shall
forward to the Trustee and the Securities Administrator a statement, deemed
to
have been certified by a Servicing Officer, setting forth the status of the
Collection Account maintained by the Master Servicer as of the close of business
on the related Distribution Date, indicating that all distributions required
by
this Agreement to be made by the Master Servicer have been made (or if any
required distribution has not been made by the Master Servicer, specifying
the
nature and status thereof) and showing, for the period covered by such
statement, the aggregate of deposits into and withdrawals from the Collection
Account maintained by the Master Servicer. Copies of such statement shall be
provided by the Master Servicer, upon request, to the Depositor, Attention:
Contract Finance, and, upon request, any Certificateholders (or by the
Securities Administrator at the Master Servicer’s expense if the Master Servicer
shall fail to provide such copies (unless (i) the Master Servicer shall have
failed to provide the Securities Administrator with such statement or (ii)
the
Securities Administrator shall be unaware of the Master Servicer’s failure to
provide such statement)).
135
(b) Not
later than two Business Days following each Distribution Date, the Master
Servicer shall deliver to the Person designated by the Depositor, in a format
consistent with other electronic loan level reporting supplied by the Master
Servicer in connection with similar transactions, “loan level” information with
respect to the Mortgage Loans as of the related Determination Date, to the
extent that such information has been provided to the Master Servicer by the
Servicers or by the Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under this
Agreement shall be based on information supplied to the Master Servicer by
the
Servicers without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
(d) The
Master Servicer shall provide the Securities Administrator with such information
as the Securities Administrator may reasonably request in connection with its
responsibilities under Section 10.01 hereof provided that such information
is in
the possession of the Master Servicer.
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports..
|
(a) Assessment
of Compliance
(i) By
March 15 of each year, commencing in March 2007, the Master Servicer and the
Securities Administrator, each at its own expense, shall furnish, and each
such
party shall cause any Servicing Function Participant engaged by it to furnish,
each at its own expense, to the Sponsor, the Depositor, the Master Servicer
and
the Securities Administrator, a report on an assessment of compliance with
the
Relevant Servicing Criteria that contains (A) a statement by such party of
its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Servicing Criteria to assess compliance
with the Relevant Servicing Criteria, (C) such party’s assessment of compliance
with the Relevant Servicing Criteria as of and for the fiscal year covered
by
the Form 10-K required to be filed pursuant to Section 6.20(e), including,
if
there has been any material instance of noncompliance with the Relevant
Servicing Criteria, a discussion of each such failure and the nature and status
thereof, and (D) a statement that a registered public accounting firm has issued
an attestation report on such party’s assessment of compliance with the Relevant
Servicing Criteria as of and for such period. Each such assessment, pursuant
to
clause (C) above, shall cover, at a minimum, the matters indicated as
obligations with respect to such Person on Exhibit O attached hereto.
(ii) When
the Master Servicer and the Securities Administrator (or any Servicing Function
Participant engaged by it) submit their assessments to the Securities
Administrator, such parties will also at such time include the assessment (and
attestation pursuant to subsection (b) of this Section 9.25) of each Servicing
Function Participant engaged by it and shall indicate to the Securities
Administrator what Relevant Servicing Criteria will be addressed in any such
reports prepared by any such Servicing Function Participant.
136
(iii) Promptly
after receipt of each report on assessment of compliance, the Securities
Administrator shall confirm that the assessments, taken as a whole, address
all
applicable Servicing Criteria and taken individually address the Relevant
Servicing Criteria (and disclose the inapplicability of the Servicing Criteria
not determined to be Relevant Criteria) for each party as set forth on Exhibit
O
and on any similar exhibit set forth in each Servicing Agreement in respect
of
each Servicer, and each Custodial Agreement in respect of each Custodian, and
shall notify the Depositor of any exceptions.
(iv) On
or prior to the Closing Date, the Master Servicer shall deliver to the Sponsor,
the Securities Administrator and the Depositor a certification in the form
of
Exhibit O attached hereto regarding the items it will address in its assessment
of compliance with the servicing criteria under this Section
9.25(a).
(b) Attestation
Reports
(i) By
March 15 of each year, commencing in March 2007, 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 and the Securities Administrator,
as the case may be) that is a member of the American Institute of Certified
Public Accountants to furnish a report to the Sponsor, the Depositor, the Master
Servicer and the Securities Administrator, as applicable, to the effect that
(A)
it has obtained a representation regarding certain matters from the management
of such party, which includes an assertion that such party has complied with
the
Relevant Servicing Criteria, and (B) on the basis of an examination conducted
by
such firm in accordance with standards for attestation engagements issued or
adopted by the PCAOB, it is expressing an opinion as to whether such party’s
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party’s assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such
an
opinion. Such report must be available for general use and not contain
restricted use language.
(ii) Promptly
after receipt of such report from the Master Servicer, the Securities
Administrator or any Servicing Function Participant engaged by such parties,
the
Securities Administrator shall confirm that each assessment submitted pursuant
subsection (a) of this Section 9.25 is coupled with an attestation meeting
the
requirements of this Section and notify the Depositor of any
exceptions.
137
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing Criteria
.
|
The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Securities Administrator on or before March 15 of each year, commencing
in
March 2007, an Officer’s Certificate stating, as to the signer thereof, that (A)
a review of such party’s activities during the preceding calendar year or
portion thereof and of such party’s performance under this Agreement, or such
other applicable agreement in the case of an Additional Servicer, has been
made
under such officer’s supervision and (B) to the best of such officer’s
knowledge, based on such review, such party has fulfilled all its obligations
under this Agreement, or such other applicable agreement in the case of an
Additional Servicer, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in
any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
|
Section
9.27.
|
Merger
or Consolidation.
|
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or resulting
Person to the Master Servicer shall be a Person that shall be qualified and
approved to service mortgage loans for FNMA or FHLMC and shall have a net worth
of not less than $15,000,000. Notwithstanding the foregoing, as a condition
to
the succession to the Master Servicer under this Agreement by any Person (i)
into which the Master Servicer may be merged or consolidated, or (ii) which
may
be appointed as a successor to the Master Servicer, the Master Servicer shall
notify the Depositor, at least 15 calendar days prior to the effective date
of
such succession or appointment, of such succession or appointment and shall
furnish to the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably necessary for the
Securities Administrator to accurately and timely report, pursuant to Section
6.20, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
|
Section
9.28.
|
Resignation
of Master Servicer.
|
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer shall
not resign from the obligations and duties hereby imposed on it unless it or
the
Trustee or the Securities Administrator determines that the Master Servicer’s
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it and cannot be cured. Any such determination permitting the resignation
of the Master Servicer shall be evidenced by an Opinion of Counsel that shall
be
Independent to such effect delivered to the Trustee and the Securities
Administrator. In the event such determination of ineligibility of the Master
Servicer to continue in the capacity of master servicer is made by the Master
Servicer, the Securities Administrator or the Trustee, no such resignation
shall
become effective until a period of time not to exceed ninety days after the
Securities Administrator receives written notice thereof from the Master
Servicer or Trustee and until the Securities Administrator shall have assumed,
or a successor master servicer shall have been appointed by the Trustee or
the
Securities Administrator, as applicable, and until such successor shall have
assumed, the Master Servicer’s responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer to the Depositor.
138
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
(a) Except
as expressly provided herein, the Master Servicer shall not assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or
delegate to or subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by the
Master Servicer hereunder; provided, however, that the Master Servicer shall
have the right without the prior written consent of the Trustee, the Securities
Administrator, the Depositor or the Rating Agencies to delegate or assign to
or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such
permitted assignment shall be given promptly by the Master Servicer to the
Depositor, the Securities Administrator and the Trustee. If, pursuant to any
provision hereof, the duties of the Master Servicer are transferred to a
successor master servicer, the entire amount of the Master Servicing Fees and
other compensation payable to the Master Servicer pursuant hereto, including
amounts payable to or permitted to be retained or withdrawn by the Master
Servicer pursuant to Section 9.21 hereof, shall thereafter be payable to such
successor master servicer.
(b) Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Master Servicer
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB without (a) giving notice to the
Trustee, the Securities Administrator and the Depositor and (b) requiring any
such Subcontractor to provide to the Master Servicer an attestation report
as
provided for in Section 9.25 and an assessment report as provided in Section
9.26, which reports the Master Servicer shall include in its attestation and
assessment reports.
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
(a) The
Master Servicer undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to act
or
its own willful misconduct; provided, however, that the duties and obligations
of the Master Servicer shall be determined solely by the express provisions
of
this Agreement, the Master Servicer shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement; no implied covenants or obligations shall be read into this Agreement
against the Master Servicer and, in absence of bad faith on the part of the
Master Servicer, the Master Servicer may conclusively rely, as to the truth
of
the statements and the correctness of the opinions expressed therein, upon
any
certificates or opinions furnished to the Master Servicer and conforming to
the
requirements of this Agreement.
139
(c) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Trustee or the
Certificateholders for any action taken or for refraining from the taking of
any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Master Servicer
or
any such person against any liability that would otherwise be imposed by reason
of willful misfeasance, bad faith or negligence in its performance of its duties
or by reason of reckless disregard for its obligations and duties under this
Agreement. The Master Servicer and any director, officer, employee or agent
of
the Master Servicer shall be entitled to indemnification by the Trust Fund
and
will be held harmless against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the Certificates
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of his or its duties
hereunder or by reason of reckless disregard of his or its obligations and
duties hereunder. The Master Servicer and any director, officer, employee or
agent of the Master Servicer may rely in good faith on any document of any
kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Master Servicer shall be under no obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties
to
master service the Mortgage Loans in accordance with this Agreement and that
in
its opinion may involve it in any expenses or liability; provided, however,
that
the Master Servicer may in its sole discretion undertake any such action that
it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account it maintains as provided by Section 4.02.
Notwithstanding anything herein to the contrary, neither the Master Servicer
nor
the Trustee shall have any liability for the servicing of the Additional
Collateral, including, without limitation, the perfection, continuation, partial
release, release, termination, realization upon, substitution, foreclosure,
sale, or any other matter with respect to the Additional Collateral, or the
enforcement of the Additional Collateral Servicing Agreement.
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Trustee
and
the Securities Administrator, and their respective officers, directors, agents
and affiliates, hold each of them harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Sponsor, the Trustee or the Securities Administrator may sustain as a result
of (a) any breach by the Master Servicer of any of its obligations hereunder,
including particularly its obligations to provide any report under Section
9.25(a), Section 9.25(b) or Section 9.26 or any information, data or materials
required to be included in any Exchange Act report, (b) any misstatement or
omission on any information, data, or materials provided by the Master Servicer,
or (c) the negligence, bad faith or willful misconduct of the Master Servicer
in
connection with its performance hereunder. The Depositor, the Sponsor, the
Trustee and the Securities Administrator shall immediately notify the Master
Servicer if a claim is made by a third party with respect to this Agreement
or
the Mortgage Loans entitling the Depositor, the Sponsor, the Trustee or the
Securities Administrator to indemnification hereunder, whereupon the Master
Servicer shall assume the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. This indemnification shall survive the termination of
this Agreement or the termination of the Master Servicer as a party to this
Agreement.
140
ARTICLE
X
REMIC
ADMINISTRATION
|
Section
10.01.
|
REMIC
and Grantor Trust Administration.
|
(a) As
set forth in the Preliminary Statement hereto, REMIC status shall be elected
in
accordance with the REMIC Provisions with respect to each of REMIC I-1, REMIC
I-2, REMIC I-3, REMIC II-1 and REMIC II-2. The Trustee shall make such elections
on Forms 1066 or other appropriate federal tax or information return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. For purposes of such elections, (i) each of the REMIC
I-1 Interests, other than the Class LTI1-R Interest, is hereby designated as
a
regular interest in REMIC I-1; (ii) each of the REMIC I-2 Interests, other
than
the Class LTI2-R Interest, is hereby designated as a regular interest in REMIC
I-2; (iii) each of the REMIC I-3 Interests, other than the Class LTI3-R
Interest, is hereby designated as a regular interest in REMIC I-3; (iv) each
of
the REMIC II-1 Interests, other than the Class LTII1-R Interest, is hereby
designated as a regular interest in REMIC II-1; and
(v)
each of the REMIC II-2 Interests, other than the Class LTII2-R Interest, is
hereby designated as a regular interest in REMIC II-2.
The
Class LTI1-R Interest is hereby designated as the sole residual interest in
REMIC I-1. The Class LTI2-R Interest is hereby designated as the sole residual
interest in REMIC I-2. The Class LTI3-R Interest is hereby designated as the
sole residual interest in REMIC I-3.
The
Class LTII1-R Interest is hereby designated as the sole residual interest in
REMIC II-1. The Class LTII2-R Interest is hereby designated as the sole residual
interest in REMIC II-2. The Class R Certificate evidences ownership of the
Class
LTI1-R Interest, the Class the Class LTI2-R Interest, the Class LTI3-R Interest,
the Class LTII1-R Interest and the Class LTII2-R Interest. The Class P-I and
Class P-II Certificates shall be neither regular interests nor residual
interests in any REMIC created hereunder. It is the intention of the parties
hereto that the segregated pool of assets consisting of any collections of
Prepayment Penalty Amounts (i) related to the Mortgage Loans in Pool
1,
Pool 2 and Pool 3, and (ii) related to the Mortgage Loans in Pool 4
each
constitute a grantor trust for federal income tax purposes. The Trustee, by
its
execution and delivery hereof, acknowledges the assignment to it of the Grantor
Trust Assets and declares that it holds and will hold such assets in trust
for
the exclusive use and benefit of all present and future Holders of the Class
P-I
(in the case of collections of Prepayment Penalty Amounts related to Pool 1,
Pool 2 and Pool 3) and Class P-II (in the case of collections of Prepayment
Penalty Amounts related to Pool 4) Certificates. The rights of Holders of the
Class P-I and Class P-II Certificates to receive distributions from the proceeds
of the Grantor Trust Assets, and all ownership interests of such Holders in
and
to such distributions, shall be as set forth in this Agreement.
141
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation Section 1.860G-1(a)(4) is the “Latest Possible
Maturity Date”.
(c) The
Securities Administrator shall pay any and all tax related expenses (not
including taxes) of each REMIC and each Grantor Trust, including but not limited
to any professional fees or expenses related to audits or any administrative
or
judicial proceedings with respect to such REMIC or such Grantor Trust that
involve the Internal Revenue Service or state tax authorities, but only to
the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement from the Certificate Account of the expenses to the extent (x)
provided in clause (i) above and (y) in the case of expenses relating to a
REMIC
provided for hereunder, such expenses are “unanticipated expenses” within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii).
(d) The
Securities Administrator shall prepare and file, and the Trustee shall sign,
all
of each REMIC’s federal and state tax and information returns as such REMIC’s
direct representative. The Securities Administrator shall prepare and file,
and
the Trustee shall sign, all of the tax returns in respect of each Grantor Trust.
The Securities Administrator shall comply with such requirement by filing Form
1041. The expenses of preparing and filing such returns shall be borne by the
Securities Administrator. If any Disqualified Organization acquires any
Ownership Interest in a Residual Certificate, then the Securities Administrator
will upon request provide to the Internal Revenue Service, and to the persons
specified in Sections 860E(e)(3) and (6) of the Code, such information as
required in Section 860D(a)(6)(B) of the Code needed to compute the tax imposed
under Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations and the Securities Administrator will be reimbursed
by the Trust for all expenses incurred therewith solely from amounts received
for the provision of such information from persons specified in Sections
860E(e)(3) and (6) of the Code.
(e) The
Securities Administrator or its designee shall perform on behalf of each REMIC
and each Grantor Trust all reporting and other tax compliance duties that are
the responsibility of such REMIC or Grantor Trust under the Code, the REMIC
Provisions, or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority. Among its other duties, if required
by
the Code, the REMIC Provisions, or other such guidance, the Securities
Administrator shall provide (i) to the Treasury or other governmental authority
such information as is necessary for the application of any tax relating to
the
transfer of a Residual Certificate to any disqualified person or organization
and (ii) to the Certificateholders such information or reports as are required
by the Code or REMIC Provisions.
142
(f) The
Trustee, the Securities Administrator, the Master Servicer and the Holders
of
Certificates shall take any action or cause any REMIC hereunder to take any
action necessary to create or maintain the status of such REMIC as a REMIC
under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status. Neither the Trustee, the Securities Administrator, the
Master Servicer nor the Holder of any Residual Certificate shall take any
action, cause any REMIC to take any action or fail to take (or fail to cause
to
be taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of any such REMIC as a REMIC
or
(ii) result in the imposition of a tax upon any such REMIC (including but not
limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth on Section 860G(d)
of the Code) (either such event, an “Adverse REMIC Event”) unless the Trustee,
the Securities Administrator and the Master Servicer have received an Opinion
of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such a tax. In addition, prior to taking any action with respect
to any such REMIC or the assets therein, or causing any such REMIC to take
any
action, which is not expressly permitted under the terms of this Agreement,
any
Holder of a Residual Certificate will consult with the Trustee, the Securities
Administrator and the Master Servicer, or their respective designees, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to such REMIC, and no such Person shall take any such
action or cause such REMIC to take any such action as to which the Trustee,
the
Securities Administrator or the Master Servicer has advised it in writing that
an Adverse REMIC Event could occur.
(g) The
Securities Administrator shall prepare or cause to be prepared on behalf of
the
Trust Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, the Trustee shall sign and
the
Securities Administrator shall file, federal tax returns and appropriate state
income tax returns and such other returns as may be required by applicable
law
relating to the Trust Fund, and shall file any other documents to the extent
required by applicable state tax law (to the extent such documents are in the
Securities Administrator’s possession). The Securities Administrator shall
forward copies to the Depositor of all such returns and Form 1099 supplemental
tax information and such other information within the control of the Securities
Administrator as the Depositor may reasonably request in writing, and shall
forward to the Trustee for distribution to each Certificateholder such forms
and
furnish such information within the control of the Securities Administrator
as
are required by the Code and the REMIC Provisions to be furnished to them,
and
will prepare and furnish to the Trustee for distribution to Certificateholders
Form 1099 (supplemental tax information) (or otherwise furnish information
within the control of the Securities Administrator) to the extent required
by
applicable law. The Master Servicer will indemnify the Securities Administrator
and the Trustee for any liability of or assessment against the Securities
Administrator or the Trustee, as applicable, resulting from any error in any
of
such tax or information returns directly resulting from errors in the
information provided by such Master Servicer.
(h) The
Securities Administrator shall prepare and file with the Internal Revenue
Service (“IRS”), on behalf of each REMIC, an application on IRS Form SS-4. The
Securities Administrator, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned for each REMIC, shall promptly forward copies
of
such notices to the Trustee, the Master Servicer and the Depositor. The
Securities Administrator will file an IRS Form 8811 for the REMICs created
hereunder. The Trustee shall sign such forms referred to in this Section
10.01(h) as may be required under applicable law.
143
(i) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the extent
that such Trust taxes are not paid by a Residual Certificateholder, the
Securities Administrator shall pay any remaining REMIC taxes out of current
or
future amounts otherwise distributable to the Holder of the Residual Certificate
in such REMIC or, if no such amounts are available, out of other amounts held
in
the Collection Account, and shall reduce amounts otherwise payable to holders
of
regular interests in such REMIC, as the case may be.
(j) The
Securities Administrator shall, for federal income tax purposes, maintain books
and records with respect to each REMIC on a calendar year and on an accrual
basis.
(k) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement with respect to Qualified Substitute
Mortgage Loans and any contributions from the Funding Account as provided for
in
Section 5.06 hereof.
(l) Neither
the Securities Administrator nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(m) Upon
the request of any Rating Agency, the Securities Administrator shall deliver
to
such Rating Agency an Officer’s Certificate stating the Securities
Administrator’s compliance with the provisions of this Section
10.01.
(n) The
Trustee shall provide the Securities Administrator such information as the
Securities Administrator may reasonably request in connection with its
responsibilities under this Section 10.01.
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
Neither
the Depositor, the Master Servicer nor the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of the REMIC holding such Mortgage Loan pursuant to
Article VII of this Agreement, (iv) a substitution pursuant to Article II of
this Agreement, or (v) a repurchase of Mortgage Loans pursuant to Article II
of
this Agreement, nor acquire any assets for any REMIC, nor sell or dispose of
any
investments in the Certificate Account for gain, nor accept any contributions
to
any REMIC after the Closing Date (other than any contributions from the Funding
Account as provided in Section 5.06 hereof), unless it has received an Opinion
of Counsel (at the expense of the party causing such sale, disposition, or
substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of such REMIC as a REMIC or of the
Certificates other than the Residual Certificates as the regular interests
therein, (b) affect the distribution of interest or principal on the
Certificates, (c) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause such REMIC to be subject to a tax on prohibited transactions or
prohibited contributions pursuant to the REMIC Provisions.
144
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
In
the
event that a REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or
incurs federal, state or local taxes as a result of a prohibited transaction
or
prohibited contribution under the REMIC Provisions due to the negligent
performance by the Trustee or the Securities Administrator, as applicable,
of
its duties and obligations set forth herein, the Trustee or the Securities
Administrator, as applicable, shall indemnify the Holder of the Residual
Certificate against any and all losses, claims, damages, liabilities or expenses
(“Losses”) resulting from such negligence; provided, however, that neither the
Trustee nor the Securities Administrator shall be liable for any such Losses
attributable to the action or inaction of the Master Servicer, the Depositor,
or
the Holder of such Residual Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of such Residual
Certificate on which the Trustee or the Securities Administrator, as applicable,
has relied. The foregoing shall not be deemed to limit or restrict the rights
and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Trustee or the Securities Administrator have any liability
(1)
for any action or omission that is taken in accordance with and in compliance
with the express terms of, or which is expressly permitted by the terms of,
this
Agreement, (2) for any Losses other than arising out of a negligent performance
by the Trustee or the Securities Administrator, respectively, of its duties
and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (in addition to payment of principal and interest on
the
Certificates); provided,
however, that
this
sentence shall not apply in connection with any failure by the Trustee to comply
with the provisions of Section 6.01(l) hereof, or any failure by the Securities
Administrator to comply with the provisions of Sections 6.01 (k) and (l) and
Sections 9.25 (a) and (b) hereof.
|
Section
10.04.
|
REO
Property.
|
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not (except to the extent provided in the
applicable Servicing Agreement), permit any Servicer to, rent, lease, or
otherwise earn income or otherwise take or fail to take any action on behalf
of
any REMIC with respect to any REO Property which might cause such REO Property
to fail to qualify as “foreclosure” property within the meaning of section
860G(a)(8) of the Code or result in the receipt by any REMIC of any “income from
non-permitted assets” within the meaning of section 860F(a)(2) of the Code or
any “net income from foreclosure property” which is subject to tax under the
REMIC Provisions unless the Master Servicer has advised, or has caused the
applicable Servicer to advise, the Trustee and the Securities Administrator
in
writing to the effect that, under the REMIC Provisions, such action would not
adversely affect the status of any REMIC as a REMIC and any income generated
for
such REMIC by the REO Property would not result in the imposition of a tax
upon
such REMIC.
(b) The
Master Servicer shall make, or shall cause the applicable Servicer to make,
reasonable efforts to sell any REO Property for its fair market value. In any
event, however, the Master Servicer shall, or shall cause the applicable
Servicer to, dispose of any REO Property within three years from the end of
the
calendar year of its acquisition by the Trust Fund unless the Master Servicer
has received a grant of extension from the Internal Revenue Service to the
effect that, under the REMIC Provisions and any relevant proposed legislation
and under applicable state law, the applicable REMIC may hold REO Property
for a
longer period without adversely affecting the REMIC status of such REMIC or
causing the imposition of a Federal or state tax upon such REMIC. If such an
extension has been received, then (a) the Master Servicer shall provide a copy
of such extension to the Trustee and Securities Administrator and (b) the Master
Servicer, acting on behalf of the Trustee and Securities Administrator
hereunder, shall, or shall cause the applicable Servicer to, continue to attempt
to sell the REO Property for its fair market value for such period longer than
three years as such extension permits (the “Extended Period”). If the Master
Servicer has not received such an extension, or the Master Servicer is acting
on
behalf of the Trustee and Securities Administrator hereunder, or the applicable
Servicer is unable to sell the REO Property within 33 months after its
acquisition by the Trust Fund or if the Trustee has received such an extension,
and the Trustee, or the Master Servicer acting on behalf of the Trustee
hereunder, is unable to sell the REO Property within the period ending three
months before the close of the Extended Period, the Master Servicer shall,
or
shall cause the applicable Servicer to, before the end of the three year period
or the Extended Period, as applicable, (i) purchase such REO Property at a
price
equal to the REO Property’s fair market value or (ii) auction the REO Property
to the highest bidder (which may be the Master Servicer) in an auction
reasonably designed to produce a fair price prior to the expiration of the
three-year period or the Extended Period, as the case may be.
145
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
|
Section
11.02.
|
Entire
Agreement.
|
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
|
Section
11.03.
|
Amendment.
|
(a) This
Agreement may be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator and the Trustee, without notice to or
the
consent of any of the Holders, (i) to cure any ambiguity, (ii) to cause the
provisions herein to conform to or be consistent with or in furtherance of
the
statements made with respect to the Certificates, the Trust Fund or this
Agreement in any Offering Document; or to correct or supplement any provision
herein which may be inconsistent with any other provisions herein or with the
provisions of any Servicing Agreement, (iii) to make any other provisions with
respect to matters or questions arising under this Agreement or (iv) to add,
delete, or amend any provisions to the extent necessary or desirable to comply
with any requirements imposed by the Code and the REMIC Provisions as evidenced
by an Opinion of Counsel. No such amendment effected pursuant to the preceding
sentence shall, as evidenced by an Opinion of Counsel, result in an Adverse
REMIC Event, nor shall such amendment effected pursuant to clause (iii) of
such
sentence adversely affect in any material respect the interests of any Holder.
Prior to entering into any amendment without the consent of Holders pursuant
to
this paragraph, the Trustee may require an Opinion of Counsel (at the expense
of
the party requesting such amendment) to the effect that such amendment is
permitted under this Section. Any such amendment shall be deemed not to
adversely affect in any material respect any Holder, if the Trustee receives
written confirmation from each Rating Agency that such amendment will not cause
such Rating Agency to reduce, qualify or withdraw the then current rating
assigned to the Certificates (and any Opinion of Counsel requested by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
146
(b) This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator and the Trustee with the consent of
the
Holders of not less than 66 2/3% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided, however, that no such amendment shall be made unless the
Trustee receives an Opinion of Counsel addressed to the Trustee, at the expense
of the party requesting the change, that such change will not cause an Adverse
REMIC Event; and provided further, that no such amendment may (i) reduce in
any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate, without the
consent of the Holder of such Certificate or (ii) reduce the aforesaid
percentages of Class Principal Amount (or Percentage Interest) of Certificates
of each Class, the Holders of which are required to consent to any such
amendment without the consent of the Holders of 100% of the Class Principal
Amount (or Class Notional Amount) of each Class of Certificates affected
thereby. For purposes of this paragraph, references to “Holder” or “Holders”
shall be deemed to include, in the case of any Class of Book-Entry Certificates,
the related Certificate Owners.
(c) Promptly
after the execution of any such amendment, the Securities Administrator on
behalf of the Trustee shall furnish written notification of the substance of
such amendment to each Holder, the Depositor and to the Rating
Agencies.
(d) It
shall not be necessary for the consent of Holders under this Section 11.03
to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Holders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(e) Notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in this Section with respect to
amendment of this Agreement and (ii) except for a Permitted Servicing Amendment,
any such amendment pursuant to Section 11.03(a)(iii) shall not be materially
inconsistent with the provisions of such Servicing Agreement.
147
(f) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee to the extent necessary, in the judgment of the
Depositor and its counsel, to comply with the Securities Exchange Act of 1934,
Regulation AB and any related rules and regulations.
|
Section
11.04.
|
Voting
Rights.
|
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount (or Notional Amount),
Certificates owned by the Depositor, the Securities Administrator, the Master
Servicer, the Trustee or any Servicer or Affiliates thereof are not to be
counted so long as such Certificates are owned by the Depositor, the Securities
Administrator, the Master Servicer, the Trustee or any Servicer or Affiliates
thereof.
|
Section
11.05.
|
Provision
of Information.
|
(a) For
so long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
agree to cooperate with each other to provide to any Certificateholders and
to
any prospective purchaser of Certificates designated by such Certificateholder,
upon the request of such Certificateholder or prospective purchaser, any
information required to be provided to such holder or prospective purchaser
to
satisfy the condition set forth in Rule 144A(d)(4) under the Act. Any
reasonable, out-of-pocket expenses incurred by the Trustee or the Securities
Administrator in providing such information shall be reimbursed by the
Depositor.
(b) The
Securities Administrator will make available to any person to whom a Prospectus
was delivered, upon the request of such person specifying the document or
documents requested, (i) a copy (excluding exhibits) of any report on Form
8-K,
Form 10-D or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 6.20(c) and (ii) a copy of any other document incorporated
by reference in the Prospectus to the extent in the possession of the Securities
Administrator. Any reasonable out-of-pocket expenses incurred by the Securities
Administrator in providing copies of such documents shall be reimbursed by
the
Depositor.
|
Section
11.06.
|
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 CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW).
|
Section
11.07.
|
Notices.
|
148
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when delivered to such party at the relevant
address, facsimile number or electronic mail address set forth below (or at
such
other address, facsimile number or electronic mail address as such party may
designate from time to time by written notice in accordance with this
Section 11.07): received by (a) in the case of the Depositor, Structured
Asset Securities Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇, (b) in the case of the Securities Administrator,
▇▇▇▇▇ Fargo Bank, National Association, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or, for overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇) (SARM 2006-3) or for purposes of presentment of Certificates for
transfer, exchange and/or payment, the Securities Administrator’s Corporate
Trust Office, (c) in the case of the Certificate Registrar, its Corporate Trust
Office, (d) in the case of the Trustee, Corporate Trust Services, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: SARM 2006-3 and
(e)
in the case of the Master Servicer, Aurora Loan Services LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Mail Stop Code 3195; Attention: Master
Servicing or as to each party such other address as may hereafter be furnished
by such party to the other parties in writing. Any notice required or permitted
to be mailed to a Holder shall be given by first class mail, postage prepaid,
at
the address of such Holder as shown in the Certificate Register. Any notice
so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.
|
Section
11.08.
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
|
Section
11.09.
|
Indulgences;
No Waivers.
|
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted to
have
granted such waiver.
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
|
Section
11.11.
|
Benefits
of Agreement.
|
Nothing
in this Agreement or in the Certificates, express or implied, shall give to
any
Person, other than the parties to this Agreement and their successors hereunder
and the Holders of the Certificates, any benefit or any legal or equitable
right, power, remedy or claim under this Agreement, except to the extent
specified in Section 11.14.
149
|
Section
11.12.
|
Special
Notices to the Rating Agencies.
|
(a) The
Depositor shall give prompt notice to the Rating Agencies of the occurrence
of
any of the following events of which it has notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section 6.14;
and
(vi) the
making of a final payment pursuant to Section 7.02.
(b) All
notices to the Rating Agencies provided for this Section shall be in writing
and
sent by first class mail, telecopy or overnight courier, as
follows:
If
to
Fitch, to:
Fitch,
Inc.
▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If
to
S&P, to:
Standard
& Poor’s
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(c) The
Securities Administrator shall provide or make available to the Rating Agencies
reports prepared pursuant to Section 4.03. In addition, the Securities
Administrator shall, at the expense of the Trust Fund, make available to each
Rating Agency such information as such Rating Agency may reasonably request
regarding the Certificates or the Trust Fund, to the extent that such
information is reasonably available to the Securities
Administrator.
|
Section
11.13.
|
Counterparts.
|
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one and
the
same instrument.
150
|
Section
11.14.
|
Transfer
of Servicing.
|
The
Seller agrees that it shall provide written notice to the Trustee, the
Securities Administrator and the Master Servicer thirty days prior to any
transfer or assignment by the Seller of its rights under any Servicing Agreement
or of the servicing thereunder or delegation of its rights or duties thereunder
or any portion thereof to any Person other than the initial Servicer under
such
Servicing Agreement; provided
that the
Seller shall not be required to provide prior notice of any transfer of
servicing that occurs within three months following the Closing Date to an
entity that is a Servicer on the Closing Date. In addition, the ability of
the
Seller to transfer or assign its rights and delegate its duties under a
Servicing Agreement or to transfer the servicing thereunder to a successor
servicer shall be subject to the following conditions:
(i) Satisfaction
of the conditions to such transfer as set forth in the Servicing Agreement
including, without limitation, receipt of written consent of the Master Servicer
to such transfer;
(ii) Such
successor servicer must be qualified to service loans for FNMA or
FHLMC;
(iii) Such
successor servicer must satisfy the seller/servicer eligibility standards in
the
applicable Servicing Agreement, exclusive of any experience in mortgage loan
origination, and must be reasonably acceptable to the Master Servicer, whose
approval shall not be unreasonably withheld;
(iv) Such
successor servicer must execute and deliver to the Trustee, the Securities
Administrator and the Master Servicer an agreement, in form and substance
reasonably satisfactory to the Trustee, the Securities Administrator and the
Master Servicer, that contains an assumption by such successor servicer of
the
due and punctual performance and observance of each covenant and condition
to be
performed and observed by the applicable Servicer under the applicable Servicing
Agreement or, in the case of a transfer of servicing to a party that is already
a Servicer pursuant to this Agreement, an agreement to add the related Mortgage
Loans to the Servicing Agreement already in effect with such
Servicer;
(v) If
the successor servicer is not a Servicer of Mortgage Loans at the time of such
transfer, there must be delivered to the Trustee and the Securities
Administrator a letter from each Rating Agency to the effect that such transfer
of servicing will not result in a qualification, withdrawal or downgrade of
the
then-current rating of any of the Certificates;
(vi) The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following: (A) to the
extent required by the terms of the Mortgage Loans and by applicable federal
and
state laws and regulations, the Seller shall cause the prior Servicer to timely
mail to each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of servicing, the
Seller shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the effective
date of such transfer of servicing, the Seller shall cause the prior Servicer
to
deliver to the successor servicer all Mortgage Loan Documents and any related
records or materials; (D) on or prior to the effective date of such transfer
of
servicing, the Seller shall cause the prior Servicer to transfer to the
successor servicer, or, if such transfer occurs after a Remittance Date but
before the next succeeding Deposit Date, to the Master Servicer, all funds
held
by the applicable Servicer in respect of the Mortgage Loans; (E) on or prior
to
the effective date of such transfer of servicing, the Seller shall cause the
prior Servicer to, after the effective date of the transfer of servicing to
the
successor servicer, continue to forward to such successor servicer, within
one
Business Day of receipt, the amount of any payments or other recoveries received
by the prior Servicer, and to notify the successor servicer of the source and
proper application of each such payment or recovery; and (F) the Seller shall
cause the prior Servicer to, after the effective date of transfer of servicing
to the successor servicer, continue to cooperate with the successor servicer
to
facilitate such transfer in such manner and to such extent as the successor
servicer may reasonably request.
151
|
Section
11.15.
|
Conflicts.
|
To
the
extent that the terms of this Agreement conflict with the terms of any Servicing
Agreement, the related Servicing Agreement shall govern, unless such provisions
shall adversely affect the Trustee or the Trust Fund or the status of any REMIC
created hereunder as a REMIC, provided that nothing in this Section 11.15 shall
be construed to limit the rights or obligations of the Master Servicer under
Section 9.05 of this Agreement.
|
Section
11.16.
|
Compliance
with Regulation AB.
|
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.02,
6.20, 9.25 and 9.26 of this Agreement is to facilitate compliance by the
Depositor and the Securities Administrator with the provisions of Regulation
AB,
as such regulation may be amended or clarified from time to time. Therefore,
each of the parties agrees that (a) the obligations of the parties hereunder
shall be interpreted in such a manner as to accomplish compliance with
Regulation AB, (b) the parties’ obligations hereunder will be supplemented and
modified as necessary to be consistent with any such amendments, interpretive
advice or guidance, or convention or consensus among active participants in
the
asset-backed securities markets in respect of the requirements of Regulation
AB
and (c) the parties shall comply, to the extent practicable from a timing and
information systems perspective, with reasonable requests made by the Depositor
or its designee for delivery of additional or different information as is
necessary to comply with the provisions of Regulation AB.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
152
IN
WITNESS WHEREOF, the Depositor, the Securities Administrator, the Trustee and
the Master Servicer have caused their names to be signed hereto by their
respective officers hereunto duly authorized as of the day and year first above
written.
STRUCTURED
ASSET SECURITIES
CORPORATION, as Depositor
CORPORATION, as Depositor
By:
__________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Senior Vice President
U.S.
BANK
NATIONAL ASSOCIATION, not in
its individual capacity, but solely as Trustee
its individual capacity, but solely as Trustee
By:
__________________________
Name:
Title:
▇▇▇▇▇
FARGO BANK, NATIONAL
ASSOCIATION,
as Securities Administrator
ASSOCIATION,
as Securities Administrator
By:
__________________________
Name:
Title:
AURORA
LOAN SERVICES LLC,
as Master Servicer
as Master Servicer
By:
_______________________
Name:
Title:
Solely
for purposes of Section 11.14,
accepted
and agreed to by:
▇▇▇▇▇▇
BROTHERS HOLDINGS INC.
By: _______________________
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
[INTENTIONALLY
OMITTED]
▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
INITIAL CERTIFICATION
___________________
Date
U.S.
Bank
National Association
▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Structured
Asset Securities Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aurora
Loan Services LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Trust
Agreement (the “Trust Agreement”), dated as of March 1, 2006 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association,
as Securities Administrator and U.S. Bank National Association, as
Trustee, with respect to Structured Adjustable Rate Mortgage Loan
Trust
Mortgage Pass-Through Certificates, Series
2006-3
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review of
the
contents thereof, the undersigned, as Custodian on behalf of the Trustee, hereby
certifies that it (or its custodian) has received the documents listed in
Section 2.01(b) of the Trust Agreement for each Mortgage File pertaining to
each
Mortgage Loan listed on Schedule A, to the Trust Agreement, subject to any
exceptions noted on Schedule I hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
[Custodian],
on behalf of
U.S.
Bank
National Association,
as
Trustee
By:
_____________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
INTERIM CERTIFICATION
___________________
Date
U.S.
Bank
National Association
▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Structured
Asset Securities Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aurora
Loan Services LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Trust
Agreement (the “Trust Agreement”), dated as of March 1, 2006 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association,
as Securities Administrator and U.S. Bank National Association, as
Trustee, with respect to Structured Adjustable Rate Mortgage Loan
Trust
Mortgage Pass-Through Certificates, Series
2006-3
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned, as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents identified above and has determined that
each such document appears regular on its face and appears to relate to the
Mortgage Loan identified in such document.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said
B-2-1
Trust
Agreement including, but not limited to, Section 2.02(b).
[Custodian],
on behalf of
U.S.
Bank
National Association,
as
Trustee
By:_____________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
FINAL CERTIFICATION
___________________
Date
U.S.
Bank
National Association
▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Structured
Asset Securities Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aurora
Loan Services LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Trust
Agreement (the “Trust Agreement”), dated as of March 1, 2006 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association,
as Securities Administrator and U.S. Bank National Association, as
Trustee, with respect to Structured Adjustable Rate Mortgage Loan
Trust
Mortgage Pass-Through Certificates, Series
2006-3
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned, as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is
correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said
B-3-1
Trust
Agreement.
[Custodian],
on behalf of
U.S.
Bank
National Association,
as
Trustee
By:_____________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
ENDORSEMENT
Pay
to
the order of U.S. Bank National Association, as trustee (the “Trustee”) under
the Trust Agreement dated as of March 1, 2006, among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services LLC, as Master Servicer, ▇▇▇▇▇
Fargo Bank, National Association, as Securities Administrator and the Trustee
relating to Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2006-3, without recourse.
______________________________________
[current
signatory on note]
By:___________________________________
Name:
Title:
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
___________________
Date
[Addressed
to Trustee
or,
if
applicable, custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of March 1, 2006 among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as Securities Administrator
and you, as Trustee (the “Trust Agreement”), the undersigned Master Servicer
hereby requests a release of the Mortgage File held by you as Trustee with
respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
|
1.
|
Mortgage
Loan paid in full. (The Master Servicer hereby certifies that all
amounts
received in connection with the loan have been or will be credited
to the
Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
|
|
2.
|
The
Mortgage Loan is being foreclosed.
|
|
3.
|
Mortgage
Loan substituted. (The Master Servicer hereby certifies that a Qualifying
Substitute Mortgage Loan has been assigned and delivered to you along
with
the related Mortgage File pursuant to the Trust
Agreement.)
|
|
4.
|
Mortgage
Loan repurchased. (The Master Servicer hereby certifies that the
Purchase
Price has been credited to the Collection Account or the Certificate
Account (whichever is applicable) pursuant to the Trust
Agreement.)
|
|
5.
|
Other.
(Describe)
|
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and will
be
returned to you within ten (10) days of our receipt of the Mortgage File, except
if the Mortgage Loan has been paid in full, or repurchased or substituted for
a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will be
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required by
us
for such purpose).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
_____________________________________
[Name
of
Master Servicer]
By:__________________________________
Name:
Title:
Servicing Officer
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
That
he
[she] is [title of officer] ________________________ of [name of Purchaser]
_________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he [she] makes this affidavit.
|
1.
|
That
the Purchaser’s Taxpayer Identification Number is
______________.
|
|
2.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of
__________________ [date of transfer], and that the Purchaser is
not
acquiring a Residual Certificate (as defined in the Agreement) for
the
account of, or as agent (including a broker, nominee, or other middleman)
for, any person or entity from which it has not received an affidavit
substantially in the form of this affidavit. For these purposes,
a
“disqualified organization” means the United States, any state or
political subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the foregoing
(other
than an instrumentality if all of its activities are subject to tax
and a
majority of its board of directors is not selected by such governmental
entity), any cooperative organization furnishing electric energy
or
providing telephone service to persons in rural areas as described
in Code
Section 1381(a)(2)(C), any “electing large partnership” within the meaning
of Section 775 of the Code, or any organization (other than a farmers’
cooperative described in Code Section 521) that is exempt from federal
income tax unless such organization is subject to the tax on unrelated
business income imposed by Code Section
511.
|
|
3.
|
That
the Purchaser is not, and on _______________ [date of transfer] will
not
be, an employee benefit plan or arrangement subject to Title I of
the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a
plan subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended (the “Code”) or a plan subject to any provisions under any
federal, state, local, non-U.S. or other laws or regulations that
are
substantively similar to the foregoing provisions of ERISA or the
Code
(collectively, a “Plan”), and is not directly or indirectly acquiring the
Residual Certificate for, on behalf of or with any assets of any
such
Plan.
|
D-1-1
|
4.
|
That
the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the “Agreement”) among Structured Asset Securities Corporation,
U.S. Bank National Association, as Trustee, ▇▇▇▇▇ Fargo Bank, National
Association, as Securities Administrator and Aurora Loan Services
LLC, as
Master Servicer, dated as of March 1, 2006, no transfer of a Residual
Certificate shall be permitted to be made to any person unless the
Depositor and the Trustee have received a certificate from such transferee
containing the representations in paragraphs 2, 3 and 4
hereof.
|
|
5.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
6.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual Certificate, and that the Purchaser
has
provided financial statements or other financial information requested
by
the transferor in connection with the transfer of the Residual Certificate
in order to permit the transferor to assess the financial capability
of
the Purchaser to pay such taxes.
|
|
7.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 2, paragraph 5 or paragraph 9
hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 6 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the
Agreement.
|
|
8.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
9.
|
That
the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S. Person that
holds
a Residual Certificate in connection with the conduct of a trade
or
business within the United States and has furnished the transferor
and the
Trustee with an effective Internal Revenue Service Form W-8 ECI
(Certificate of Foreign Person’s Claim for Exemption From Withholding on
Income Effectively Connected with the Conduct of a Trade or Business
in
the United States) or successor form at the time and in the manner
required by the Code. “Non-U.S. Person” means any person other than (i) a
citizen or resident of the United States; (ii) a corporation (or
entity
treated as a corporation for tax purposes) created or organized in
the
United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia; (iii)
a
partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States
or
of any state thereof, including, for this purpose, the District of
Columbia (unless provided otherwise by future Treasury regulations);
(iv)
an estate whose income is includible in gross income for United States
income tax purposes regardless of its source; (v) a trust, if a court
within the United States is able to exercise primary supervision
over the
administration of the trust and one or more U.S. Persons have authority
to
control all substantial decisions of the trust or; (vi) and, to the
extent
provided in Treasury regulations, certain trusts in existence prior
to
August 20, 1996 that are treated as United States persons prior to
such
date and elect to continue to be treated as United States
persons.
|
D-1-2
|
10.
|
That
the Purchaser agrees to such amendments of the Trust Agreement as
may be
required to further effectuate the restrictions on transfer of any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 6 and paragraph 9
hereof.
|
|
11.
|
That
the Purchaser consents to the designation of the Securities Administrator
as its agent to act as “tax matters person” of the Trust Fund pursuant to
the Trust Agreement.
|
Terms
used in this transfer affidavit which are not otherwise defined herein have
the
respective meanings assigned thereto in the Trust Agreement.
D-1-3
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, 20__.
______________________________________
[name
of
Purchaser]
By:___________________________________
Name:
Title:
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument and
to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
_________________________________
COUNTY
OF_____________________
STATE
OF_______________________
My
commission expires the _____ day of __________, 20__.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
___________________
Date
|
Re:
|
Structured
Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through Certificates,
Series 2006-3
|
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 6 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very
truly yours,
_______________________________
Name:
Title:
D-2-1
EXHIBIT
E
SERVICING
AGREEMENTS
(See
Exhibits 99.2 through 99.4)
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Structured
Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates,
Series 2006-3
|
Reference
is hereby made to the Trust Agreement (the “Trust Agreement”), dated as of March
1, 2006 among Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer ▇▇▇▇▇ Fargo Bank, National Association, as
Securities Administrator and U.S. Bank National Association, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Trust Agreement.
This
letter relates to $_________ initial Certificate Principal Amount of Class
Certificates
which are held in the form of Definitive Certificates registered in the name
of
(the
“Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the name
of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer”, which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction.
This
certificate and the statements contained herein are made for the benefit of
the
Trustee, the Securities Administrator, the Placement Agent and the
Depositor.
________________________________________
[Name
of
Transferor]
By:_____________________________________
Name:
Title:
Dated:
__________________, ________
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
__________________
Date
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2006-3 (the “Privately Offered Certificates”) of Structured
Asset Securities Corporation (the “Depositor”) which are held in the form of
Definitive Certificates, we confirm that:
|
1.
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended (the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if we
should
sell any Privately Offered Certificates within two years of the later
of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned by
the
Depositor or any affiliate of the Depositor (which includes the Placement
Agent) we will do so only (A) to the Depositor, (B) to “qualified
institutional buyers” (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities
Act
(“QIBs”), (C) pursuant to the exemption from registration provided by Rule
144 under the Securities Act, or (D) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an “Institutional
Accredited Investor”) which, prior to such transfer, delivers to the
Trustee under the Trust Agreement (the “Trust Agreement”), dated as of
March 1, 2006 among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, ▇▇▇▇▇ Fargo Bank, National
Association, as Securities Administrator and U.S. Bank National
Association, as Trustee, a signed letter in the form of this letter;
and
we further agree, in the capacities stated above, to provide to any
person
purchasing any of the Privately Offered Certificates from us a notice
advising such purchaser that resales of the Privately Offered Certificates
are restricted as stated herein.
|
|
2.
|
We
understand that, in connection with any proposed resale of any Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Trustee, the Certificate Registrar and
the
Depositor a certification from such transferee in the form hereof
to
confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements
of
the Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing
effect.
|
G-1
|
3.
|
We
are acquiring the Privately Offered Certificates for investment purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting are
each able
to bear the economic risk of such
investment.
|
|
4.
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
|
5.
|
We
have received such information as we deem necessary in order to make
our
investment decision.
|
|
6.
|
If
we are acquiring an ERISA-Restricted Certificate, we are not a Plan
and we
are not acquiring the ERISA-Restricted Certificate for, on behalf
of or
with any assets of a Plan, except as may be permitted pursuant to
Section
3.03(d) of the Trust Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
You
and
the Depositor, the Securities Administrator and the Trustee are entitled to
rely
upon this letter and are irrevocably authorized to produce this letter or a
copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very
truly yours,
__________________________________
[Purchaser]
By________________________________
Name:
Title:
G-2
EXHIBIT
H
[FORM
OF
ERISA TRANSFER AFFIDAVIT]
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
|
1.
|
The
undersigned is the ______________________ of (the “Investor”), a
[corporation duly organized] and existing under the laws of __________,
on
behalf of which he makes this
affidavit.
|
|
2.
|
The
Investor (A) is not, and on _______________ [date of transfer] will
not
be, an employee benefit plan or arrangement subject to Title I of
the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a
plan subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended (the “Code”) or a plan subject to any provisions under any
federal, state, local, non-U.S. or other laws or regulations that
are
substantively similar to the foregoing provisions of ERISA or the
Code
(“Similar Law”) (collectively, a “Plan”), and is not directly or
indirectly acquiring the Certificate for, on behalf of or with any
assets
of any such Plan, (B) if the Certificate has been the subject of
an
ERISA-Qualifying Underwriting, is an insurance company that is acquiring
the Certificate with assets of an “insurance company general account” as
defined in Section V(E) of Prohibited Transaction Class Exemption
(“PTCE”)
95-60 and the acquisition and holding of the Certificate are covered
and
exempt under Sections I and III of PTCE 95-60, or (C) solely in the
case
of a Definitive Certificate, shall herewith deliver an Opinion of
Counsel
satisfactory to the Certificate Registrar, the Trustee and the Depositor,
and upon which the Trustee, the Certificate Registrar and the Depositor
shall be entitled to rely, to the effect that the acquisition and
holding
of such Certificate by the Investor will not result in a nonexempt
prohibited transaction under Title I of ERISA or Section 4975 of
the Code,
or a violation of Similar Law, and will not subject the Trustee,
the
Master Servicer, the Securities Administrator, the Certificate Registrar,
any Servicer or the Depositor to any obligation in addition to those
undertaken by such entities in the Trust Agreement, which Opinion
of
Counsel shall not be an expense of the Trustee, the Master Servicer,
the
Securities Administrator, the Certificate Registrar, any Servicer
or the
Depositor.
|
|
3.
|
The
Investor hereby acknowledges that under the terms of the Trust Agreement
(the “Agreement”) among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services LLC, as Master Servicer, ▇▇▇▇▇ Fargo
Bank,
National Association and U.S. Bank National Association, as Trustee,
dated
as of March 1, 2006, no transfer of the ERISA-Restricted Certificates
(other than the Class R Certificate) shall be permitted to be made
to any
person unless the Depositor, the Certificate Registrar and Trustee
have
received an affidavit from such transferee in the form hereof or
an
opinion of counsel as provided
herein.
|
|
4.
|
Capitalized
terms used but not defined herein shall have the meanings given to
such
terms in the Trust Agreement.
|
H-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20__.
________________________________________
[Investor]
By:_____________________________________
Name:
Title:
ATTEST:
___________________________
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
Personally
appeared before me the above-named ___________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be the
_________________ of the Investor, and acknowledged that he executed the same
as
his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of ___________ 20___.
__________________________________
NOTARY
PUBLIC
My
commission expires the
____
day
of __________, 20__.
H-2
EXHIBIT
I
MONTHLY
REMITTANCE ADVICE
[INTENTIONALLY
OMITTED]
I-1
EXHIBIT
J
MONTHLY
ELECTRONIC DATA TRANSMISSION
[INTENTIONALLY
OMITTED]
J-1
EXHIBIT
K
CUSTODIAL
AGREEMENTS
[INTENTIONALLY
OMITTED]
K-1
EXHIBIT
L-1
FORM
OF TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(B)
of
the
Agreement)
|
Re:
|
Structured
Adjustable Rate Mortgage Loan Trust Mortgage Loan Trust
Mortgage Pass-Through Certificates, Series 2006-3 |
Reference
is hereby made to the Trust Agreement (the “Agreement”) among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, ▇▇▇▇▇ Fargo Bank, National Association and U.S. Bank National
Association, as Trustee, dated as of March 1, 2006. Capitalized terms used
but
not defined herein shall have the meanings given to them in the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted Global
Security with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904 of
Regulation S, and that:
a. the
offer of the Securities was not made to a person in the United
States;
b. at
the time the buy order was originated, the transferee was outside the United
States or the Transferor and any person acting on its behalf reasonably believed
that the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e. the
transferee is not a U.S. person (as defined in Regulation S).
L-1-1
The
Depositor, the Securities Administrator and the Trustee are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a
copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in
this
certificate have the meanings set forth in Regulation S.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
____
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(C)
of
the
Agreement)
|
Re:
|
Structured
Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates,
Series 2006-3
|
Reference
is hereby made to the Trust Agreement (the “Agreement”) among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, ▇▇▇▇▇ Fargo Bank, National Association and U.S. Bank National
Association, as Trustee, dated as of March 1, 2006. Capitalized terms used
but
not defined herein shall have the meanings given to them in the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
___
L-2-1
EXHIBIT
M
FORM
OF
CERTIFICATION TO BE PROVIDED TO
THE
DEPOSITOR AND THE MASTER SERVICER BY THE SECURITIES ADMINISTRATOR
Structured
Asset Securities Corporation
▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aurora
Loan Services LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Structured
Adjustable Rate Mortgage Loan Trust,
Mortgage
Pass-Through Certificates, Series
2006-3
|
Reference
is made to the Trust Agreement dated as of March 1, 2006 (the “Trust
Agreement”), by and among ▇▇▇▇▇ Fargo Bank, National Association, as Securities
Administrator (the “Securities Administrator”), U.S. Bank National Association
(the “Trustee”), Aurora Loan Services LLC, as master servicer (the “Master
Servicer”), and Structured Asset Securities Corporation, as depositor (the
“Depositor”). Capitalized terms used herein but not defined have the meanings
assigned to them in the Trustee Agreement.
The
Securities Administrator hereby certifies to the Depositor and the Master
Servicer, and its officers, directors and affiliates, and with the knowledge
and
intent that they will rely upon this certification, that:
|
(i)
|
The
Securities Administrator has reviewed the annual report on Form 10-K
for
the fiscal year [ ] (the “Annual Report”), and all reports on Form 8-K (if
any) and on Form 10-D required to be filed in respect of the period
covered by such Annual Report (collectively with the Annual Report,
the
“Reports”), relating to the above-referenced
trust;
|
|
(ii)
|
To
the best of the Securities Administrator’s knowledge, and assuming the
accuracy of the statements required to be made or data required to
be
delivered by the Servicers, any Subservicers, any Subcontractors,
the
Master Servicer, the Custodians, the Trustee and the Depositor (to
the
extent that such statements or data were received by the Securities
Administrator and are relevant to the statements made by the Securities
Administrator in this Officer’s Certificate), the information
in the Reports does
not contain any untrue statement of a material fact or omit to state
a
material fact necessary
to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period
covered by the Annual Report;
|
M-1
|
(iii)
|
To
the best of the Securities Administrator’s knowledge, and assuming the
accuracy of the statements required to be made or data required to
be
delivered by the Servicers, any Subservicers, any Subcontractors,
the
Master Servicer, the Custodians and the Depositor (to the extent
that such
statements or data were received by the Securities Administrator
and are
relevant to the statements made by the Securities Administrator in
this
Officer’s Certificate), the distribution or servicing or other information
required to be provided to the Securities Administrator by the Depositor,
the Trustee, the Master Servicer, each Servicer each Subservicer,
each
Subcontractor and each Custodian under the Trust Agreement for inclusion
in the Reports is included in the
Reports;
|
|
(iv)
|
A
review of the Securities Administrator’s activities during the preceding
calendar year or portion thereof and of such Securities Administrator’s
performance under the Agreement has been made under my supervision
under
Item 1123 of Regulation AB. To the best of my knowledge, based on
such
review, the Securities Administrator has fulfilled all its obligations
under the Agreement, in all material respects throughout the year
or
portion thereof, or, if there has been a failure to fulfill any such
obligation in any material respect, the Securities Administrator
has
specified each such failure known to such officer and the nature
and
status thereof; and
|
|
(v)
|
The
report on assessment of compliance with servicing criteria for
asset-backed securities of the Securities Administrator and its related
attestation report on assessment of compliance with servicing criteria
required to be included in the Annual Report in accordance with Item
1122
of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been
included as an exhibit to the Annual Report. Any material instances
of
non-compliance are described in such report and have been disclosed
in the
Annual Report.
|
Date:
▇▇▇▇▇
Fargo Bank, National Association, as Securities Administrator
By: ____________________________
Name: __________________________
Title: ___________________________
M-2
EXHIBIT
N
FORM
OF ASSESSMENT OF COMPLIANCE
[DATE]
Structured
Asset Securities Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Mortgage Finance, SARM 2006-3
Aurora
Loan Services LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fitch,
Inc.
▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Standard
& Poor’s, a division of
The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Trust
Agreement dated as of March 1, 2006 (the “Trust Agreement”), by and among
U.S. Bank National Association (the “Trustee”), ▇▇▇▇▇
Fargo Bank, National Association (the “Securities
Administrator”),
Aurora Loan Services LLC, as master servicer (the “Master Servicer”), and
Structured Asset Securities Corporation, as depositor (the “Depositor”).
|
For
the
calendar year ending December 31, [2006] or portion thereof, [Aurora Loan
Services LLC, as Master Servicer][▇▇▇▇▇
Fargo Bank, National Association, as Securities Administrator] under
the
Trust Agreement has complied in all material respects with the relevant
Servicing Criteria in Exhibit O of the Trust Agreement.
All
capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Trust Agreement.
Date: ________________________________
By:
___________________________________
Name:
_________________________________
Title:
__________________________________
EXHIBIT
O
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements. Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Trust Agreement dated as of March 1, 2006
(the
“Trust Agreement”), by and among U.S. Bank National Association, (the
“Trustee”), ▇▇▇▇▇ Fargo Bank, National Association, as Securities Administrator
(the “Securities Administrator”), Aurora Loan Services LLC, as master servicer
(the “Master Servicer”), and Structured Asset Securities Corporation, as
depositor (the “Depositor”).
|
Reg
AB
Reference
|
Servicing
Criteria
|
Securities
Administrator
|
Master
Servicer
|
|
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
|
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
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|
X
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
X
|
|
Cash Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
O-1
|
Reg
AB
Reference
|
Servicing
Criteria
|
Securities
Administrator
|
Master
Servicer
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
O-2
|
Reg
AB
Reference
|
Servicing
Criteria
|
Securities
Administrator
|
Master
Servicer
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
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
|
X
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
O-3
|
Reg
AB
Reference
|
Servicing
Criteria
|
Securities
Administrator
|
Master
Servicer
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
||
|
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
|
O-4
|
Reg
AB
Reference
|
Servicing
Criteria
|
Securities
Administrator
|
Master
Servicer
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
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.
|
|
O-5
EXHIBIT
P
EXHIBIT
P-1
ADDITIONAL
FORM 10-D DISCLOSURE
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Master
Servicer (as
to any Servicer, to the extent provided by the Servicer)
Securities
Administrator
|
|
Item
2: Legal Proceedings
per
Item 1117 of Reg AB
|
(i)
All parties to the Trust Agreement (as to themselves), (ii) the Securities
Administrator as to the issuing entity, (iii) the Depositor as to
the
sponsor, any 1106(b) originator, any 1100(d)(1) party and (iv) the
Master
Servicer, as to any Servicer, to the extent provided by the
Servicer
|
|
Item
3: Sale of Securities and Use of Proceeds
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
|
Securities
Administrator
|
|
Item
5: Submission of Matters to a Vote of Security Holders
|
Securities
Administrator
|
|
Item
6: Significant Obligors of Pool Assets
|
Depositor
|
|
Item
7: Significant Enhancement Provider Information
|
Depositor
|
|
Item
8: Other Information
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
9: Exhibits
|
Securities
Administrator
|
P-1-1
EXHIBIT
P-2
ADDITIONAL
FORM 10-K DISCLOSURE
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
|
(i)
Any party responsible for disclosure items on Form 8-K (as to themselves)
and (ii) the Master Servicer, as to any Servicer, to the extent provided
by such Servicer
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Additional
Item:
Disclosure
per Item 1117 of Reg AB
|
(i)
All parties to the Trust Agreement (as to themselves), (ii) the Securities
Administrator as to the issuing entity, (iii) the Depositor as to
the
sponsor, any 1106(b) originator, any 1100(d)(1) party and (iv) the
Master
Servicer, as to any Servicer, to the extent provided by the
Servicer
|
|
Additional
Item:
Disclosure
per Item 1119 of Reg AB
|
(i)
All parties to the Trust Agreement as to themselves, (ii) the Depositor
as
to he sponsor, originator, significant obligor, enhancement or support
provider and (iii) the Master Servicer, as to any Servicer, to the
extent
provided by the Servicer
|
|
Additional
Item:
Disclosure
per Item 1112(b) of Reg AB
|
Depositor
|
|
Additional
Item:
Disclosure
per Items 1114(b) and 1115(b) of Reg AB
|
Depositor
|
P-2-1
EXHIBIT
P-3
ADDITIONAL
FORM 8-K DISCLOSURE
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
|
All
parties (provided that the Trustee shall only be a responsible party
if it
is also the Paying Agent of the Trust Fund)
|
|
Item
1.02- Termination of a Material Definitive Agreement
|
All
parties (provided that the Trustee shall only be a responsible party
if it
is also the Paying Agent of the Trust Fund)
|
|
Item
1.03- Bankruptcy or Receivership
|
Depositor
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
|
Depositor
|
|
Item
3.03- Material Modification to Rights of Security Holders
|
Securities
Administrator
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
|
Depositor
|
|
Item
6.01- ABS Informational and Computational Material
|
Depositor
|
P-3-1
|
Item
6.02- Change of Servicer or Securities Administrator
|
Master
Servicer (as to itself and as to any Servicer, to the extent provided
by
such Servicer), Securities Administrator, Seller
|
|
Item
6.03- Change in Credit Enhancement or External Support
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
|
|
Item
6.05- Securities Act Updating Disclosure
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
Depositor
|
|
Item
8.01
|
Depositor
|
|
Item
9.01
|
Depositor
|
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
ADDITIONAL
DISCLOSURE NOTIFICATION
▇▇▇▇▇
Fargo Bank, N.A., as Securities Administrator
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate
Trust Services - SARM 2006-3 - SEC Report Processing
RE: **Additional
Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Trust Agreement, dated as of March 1, 2006,
by and among Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer, U.S. Bank National Association, as Trustee
and
▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator, the undersigned, as [
],
hereby notifies you that certain events have come to our attention that [will]
[may] need to be disclosed on Form [10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to
[ ],
phone
number: [ ];
email
address: [ ].
[NAME
OF
PARTY],
as
[role]
By:
____________________________
Name:
Title:
cc: Structured
Asset Securities Corporation
P-4-1
EXHIBIT
Q
FORM
OF
BACK-UP ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
[ ]
[ ]
[ ]
|
Re:
|
SARM
2006-3
|
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer and the Securities Administrator, and each of their
officers, directors and affiliates that:
(1) I
have reviewed [the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),] the
report on assessment of the Company’s compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to any of the Depositor, the
Master Servicer and the Securities Administrator pursuant to the Agreement
(collectively, the “Company Servicing Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the Depositor,
the Master Servicer and the Securities Administrator;
(4) I
am responsible for reviewing the activities performed by [_______] as [_______]
under the [_______] (the “Agreement”), and based on my knowledge[and the
compliance review conducted in preparing the Compliance Statement] and except
as
disclosed in [the Compliance Statement,] the Servicing Assessment or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
Q-1
(5) [The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and] [The] [the] Servicing Assessment and Attestation Report required
to be provided by the Company and [by any Subservicer or Subcontractor] pursuant
to the Agreement, have been provided to the Depositor, the Master Servicer
and
the Securities Administrator. Any material instances of noncompliance described
in such reports have been disclosed to the Depositor, the Master Servicer and
the Securities Administrator. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Trust Agreement, dated as of March 1, 2006 (the “Trust Agreement”) by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank National
Association, as Trustee, Aurora Loan Services LLC, as Master Servicer, and
▇▇▇▇▇
Fargo Bank, N.A., as Securities Administrator. Capitalized terms used but not
defined herein shall have the meanings given to them in the Trust
Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
Q-2
EXHIBIT
R
TRANSACTION
PARTIES
Sponsor
and Seller: ▇▇▇▇▇▇ Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
U.S. Bank National Association
Securities
Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Master
Servicer: Aurora Loan Services LLC
Servicer(s):
Aurora Loan Services LLC, Countrywide Home Loans Servicing LP, PHH Mortgage
Corp., SunTrust Mortgage Company and ▇▇▇▇▇ Fargo Bank, N.A..
Originator(s):
American Home Mortgage, Corp., ▇▇▇▇▇▇ Brothers Bank FSB, Countrywide Home Loans
Servicing LP, GreenPoint Mortgage Funding Inc., PHH Mortgage Corp., SunTrust
Mortgage Company and ▇▇▇▇▇ Fargo Bank, N.A..
Custodian(s):
Deutsche Bank National Trust Company, LaSalle Bank National Association, U.S.
Bank National Association and ▇▇▇▇▇ Fargo Bank, N.A.
R-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
On
file
at the offices of:
Dechert
LLP
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
Sch.
A-1