POOLING AND SERVICING AGREEMENT

EXHIBIT 4.4

SEQUOIA RESIDENTIAL FUNDING, INC.

Depositor

 

 

 

[                                        ]

Master Servicer and Securities Administrator

 

 

 

and

 

 

 

[                                        ]

 Trustee

___________________________

POOLING AND SERVICING AGREEMENT

Dated as of __________ __, 20__

___________________________

SEQUOIA MORTGAGE TRUST 20__-_

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I DEFINITIONS		7
Section 1.01.	Definitions	7
Section 1.02.	Calculations Respecting Mortgage Loans	39
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES		40
Section 2.01.	Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans	40
Section 2.02.	Acceptance of Trust Fund by Trustee; Review of Documentation for Trust Fund	43
Section 2.03.	Representations and Warranties of the Depositor	44
Section 2.04.	Discovery of Breach; Repurchase or Substitution of Mortgage Loans	46
Section 2.05.	[Reserved]	49
Section 2.06.	Grant Clause	49
ARTICLE III THE CERTIFICATES		50
Section 3.01.	The Certificates	50
Section 3.02.	Registration	51
Section 3.03.	Transfer and Exchange of Certificates	51
Section 3.04.	Cancellation of Certificates	55
Section 3.05.	Replacement of Certificates	55
Section 3.06.	Persons Deemed Owners	56
Section 3.07.	Temporary Certificates	56
Section 3.08.	Appointment of Paying Agent	57
Section 3.09.	Book Entry Certificates	57
ARTICLE IV ADMINISTRATION OF THE TRUST FUND		58
Section 4.01.	Collection Accounts; Distribution Account	58
Section 4.02	[Reserved]	60
Section 4.03	[Reserved]	60
Section 4.04.	Reports to Trustee and Certificateholders	60
ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES		62
Section 5.01.	Distributions Generally	62
Section 5.02.	Distributions from the Distribution Account	63
Section 5.03.	Allocation of Losses	67
Section 5.04.	Advances by Master Servicer	68
Section 5.05.	Compensating Interest Payments	68
Section 5.06.	Reserve Fund	68

ARTICLE VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT		69
Section 6.01.	Duties of Trustee and the Securities Administrator	69
Section 6.02.	Certain Matters Affecting the Trustee and the Securities Administrator	72
Section 6.03.	Trustee and Securities Administrator Not Liable for Certificates	74
Section 6.04.	Trustee and the Securities Administrator May Own Certificates	75
Section 6.05.	Eligibility Requirements for Trustee and Securities Administrator	75
Section 6.06.	Resignation and Removal of Trustee and the Securities Administrator	75
Section 6.07.	Successor Trustee and Successor Securities Administrator	76
Section 6.08.	Merger or Consolidation of Trustee or the Securities Administrator	77
Section 6.09.	Appointment of Co Trustee, Separate Trustee or Custodian	78
Section 6.10.	Authenticating Agents	79
Section 6.11.	Indemnification of the Trustee and the Securities Administrator	80
Section 6.12.	Fees and Expenses of Securities Administrator and the Trustee	81
Section 6.13.	Collection of Monies	81
Section 6.14.	Events of Default; Trustee To Act; Appointment of Successor	81
Section 6.15.	Additional Remedies of Trustee Upon Event of Default	85
Section 6.16.	Waiver of Defaults	85
Section 6.17.	Notification to Holders	86
Section 6.18.	Directions by Certificateholders and Duties of Trustee During Event of Default	86
Section 6.19.	[Reserved]	86
Section 6.20.	Preparation of Tax Returns and Other Reports	86
Section 6.21.	Reporting to the Commission	87
Section 6.22.	Annual Statements of Compliance	93
Section 6.23.	Annual Assessments of Compliance	94
Section 6.24.	Accountant’s Attestation	95
ARTICLE VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND		97
Section 7.01.	Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation of All Mortgage Loans	97
Section 7.02.	Procedure Upon Redemption and Termination of Trust Fund.	98
Section 7.03.	Additional Trust Fund Termination Requirements	99
ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS		99
Section 8.01.	Limitation on Rights of Holders	99
Section 8.02.	Access to List of Holders	100
Section 8.03.	Acts of Holders of Certificates	101

ARTICLE IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER		102
Section 9.01.	Duties of the Master Servicer; Enforcement of Servicer's and Master Servicer's Obligations	102
Section 9.02	Assumption of Master Servicing by Trustee	104
Section 9.03.	Representations and Warranties of the Master Servicer	105
Section 9.04.	Compensation to the Master Servicer	107
Section 9.05.	Merger or Consolidation	107
Section 9.06.	Resignation of Master Servicer	107
Section 9.07.	Assignment or Delegation of Duties by the Master Servicer	108
Section 9.08.	Limitation on Liability of the Master Servicer and Others	108
Section 9.09.	Indemnification; Third Party Claims	109
Section 9.10.	Master Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance Policy	109
ARTICLE X REMIC ADMINISTRATION		110
Section 10.01.	REMIC Administration	110
Section 10.02.	Prohibited Transactions and Activities	112
Section 10.03.	Indemnification with Respect to Prohibited Transactions or Loss of REMIC Status	113
Section 10.04.	REO Property	113
ARTICLE XI MISCELLANEOUS PROVISIONS		114
Section 11.01.	Binding Nature of Agreement; Assignment	114
Section 11.02.	Entire Agreement	114
Section 11.03.	Amendment	115
Section 11.04.	Voting Rights	116
Section 11.05.	Provision of Information	116
Section 11.06.	Governing Law	117
Section 11.07.	Notices	117
Section 11.08.	Severability of Provisions	117
Section 11.09.	Indulgences; No Waivers	117
Section 11.10.	Headings Not To Affect Interpretation	118
Section 11.11.	Benefits of Agreement	118
Section 11.12.	Special Notices to the Rating Agencies	118
Section 11.13.	Conflicts	119
Section 11.14.	Counterparts	119
Section 11.15	No Petitions	119
Section 11.16	Intention of the Parties and Interpretation; Indemnification	120

 

 

This POOLING AND SERVICING AGREEMENT, dated as of ____________ __, 20__ (the “Agreement”), by and among SEQUOIA RESIDENTIAL FUNDING, INC., a Delaware corporation, as depositor (the “Depositor”), [                            ], a national banking association, as trustee (the “Trustee”), and [                     ], in its dual capacities as master servicer (the “Master Servicer”) and securities administrator (the “Securities Administrator”) and acknowledged by RWT HOLDINGS, INC., a Delaware corporation, as seller (the “Seller”), for purposes of Sections 2.04, 7.01(b) and 9.01(d).

PRELIMINARY STATEMENT

The Depositor has acquired the Mortgage Loans from the Seller and at the Closing Date is the owner of the Mortgage Loans and related property being conveyed by the Depositor to the Trustee hereunder for inclusion in the Trust Fund.  On the Closing Date, the Depositor will acquire the Certificates from the Trustee as consideration for the Depositor’s 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 related property constituting the Trust Fund.  All covenants and agreements made by the Seller in the Mortgage Loan Purchase and Sale Agreement and in this Agreement and by the Depositor, the Master Servicer, the Securities Administrator and the Trustee herein, with respect to the Mortgage Loans and the other property constituting the Trust Fund, are for the benefit of the Holders from time to time of the Certificates.  The Depositor, the Trustee, the Master Servicer and the Securities Administrator 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 Securities Administrator shall elect that the Trust Fund (exclusive of the Additional Collateral and the assets deposited in the Reserve Fund (the “Excluded Trust Property”) be treated for federal income tax purposes as comprising three real estate mortgage investment conduits (each, a “REMIC” or, in the alternative, the “Lower-Tier REMIC,” the “Middle-Tier REMIC,” and the “Upper-Tier REMIC,” respectively).  Each Certificate, other than the Class 1-AR Certificate and the Class LT-R Certificate, is hereby designated as a regular interest in the Upper-Tier REMIC, as described herein.  In addition, each of the LIBOR Certificates represents the right to receive payments in respect of Net WAC Shortfalls from the Reserve Fund as provided in Sections 5.02 and 5.06.  The owners of the Interest-Only Certificates beneficially own the Reserve Fund.  The Class 1-AR Certificate represents the sole class of residual interest in each of the Upper-Tier and Middle-Tier REMICs.

The Class LT-R Certificate evidences ownership of the sole class of residual interest in the Lower-Tier REMIC (the “LT-R Interest”).  The Lower-Tier REMIC shall hold as its assets all property of the Trust Fund, other than the Excluded Trust Property and other than the interests in any REMIC formed hereby.  Each Lower-Tier Interest other than the LT-R Interest is hereby designated as a regular interest in the Lower-Tier REMIC and the LT-R Interest is hereby designated as the sole Class of residual interest in the Lower-Tier REMIC.  The Middle-Tier REMIC shall hold as its assets the Lower-Tier Interests other than the LT-R Interest.  Each Middle-Tier Interest other than the MT-R Interest is hereby designated as a regular interest in the Middle-Tier REMIC and the MT-R Interest is hereby designated as the sole Class of residual interest in the Middle-Tier REMIC.  The Upper-Tier REMIC shall hold as its assets the Middle-Tier Interests other than the MT-R Interest.

 

 

The Lower-Tier REMIC Interests

The following table sets forth (or describes) the Class designation, interest rate, and initial Class Principal Amount for each Class of Lower-Tier Interests:

On each Distribution Date, the Available Distribution Amount distributable as interest shall be distributed as interest with respect to the Lower-Tier Interests based on the interest rates described above.  On each Distribution Date, Interest Shortfalls shall be allocated among the related Lower-Tier Interests based on the relative amounts of interest otherwise accrued for the related Accrual Period on each such Lower-Tier Interest.

 

 

On each Distribution Date, the remaining Available Distribution Amount shall be distributed as principal on the Lower-Tier Interests as follows:

 

 

The Middle-Tier REMIC Interests

The following table sets forth (or describes) the Class designation, interest rate, and initial Class Principal Amount for each Class of Middle-Tier Interests:

On each Distribution Date, the Available Distribution Amount distributable as interest shall be distributed as interest with respect to the Middle-Tier Interests based on the interest rates described above.  On each Distribution Date, Interest Shortfalls shall be allocated among the related Middle-Tier Interests based on the relative amounts of interest otherwise accrued for the related Accrual Period on each such Middle-Tier Interest.

 

 

On each Distribution Date, the remaining Available Distribution Amount distributable to with respect principal shall be distributed to the Middle-Tier Interests as follows:

 

The Certificates and the Upper-Tier REMIC

 

The following table sets forth (or describes) the Class designation, Certificate Interest Rate, initial Class Principal Amount (or initial Class Notional Amount) and minimum denomination for each Class of Certificates comprising interests in the Trust Fund created hereunder.

 

 

 

 

As of the Cut-off Date, the Mortgage Loans had an Aggregate Stated Principal Balance of $[        ].

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 6.21(b)(i) hereof.

Accepted Servicing Practices :  With respect to any Mortgage Loan, those mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the same type as such Mortgage Loan in the jurisdiction where the related Mortgaged Property is located.

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.

Accountant’s Attestation :  As defined in Section 6.24.

Accrual Period :  With respect to any Distribution Date and any Class of LIBOR Certificates, the period commencing on the immediately preceding Distribution Date (or, in the case of the first Distribution Date, on the Closing Date) and ending on the day immediately preceding the current Distribution Date.  The Accrual Period applicable to the remaining Classes of Certificates and to each Lower-Tier Interest is the calendar month preceding the month in which the Distribution Date occurs.  Interest shall accrue on all Classes of Certificates and on all Lower-Tier Interests (other than the LIBOR Certificates, the LT-Pool 1 and LT-Pool 1 PSA Interests, and the MT-1A1 and MT-1A2 Interests) on the basis of a 360-day year consisting of twelve 30-day months, and interest shall accrue on the LIBOR Certificates, the LT-Pool 1 and LT-Pool 1 PSA Interests, and the MT-1A1 and MT-1A2 Interests) on the basis of a 360-day year and the actual number of days elapsed in the related Accrual Period.

 

 

Acknowledgements :  The Assignment, Assumption and Recognition Agreements, each dated ___________ __, 20__, assigning rights under the Purchase Agreements and the Servicing Agreements from the Seller to the Depositor and from the Depositor to the Trustee, for the benefit of the Certificateholders.

Additional Collateral :  With respect to any Additional Collateral Mortgage Loan, the marketable securities and other acceptable collateral pledged as collateral pursuant to the related pledge agreements.

Additional Collateral Mortgage Loan :  Each Mortgage Loan identified as such in the Mortgage Loan Schedule.

Additional Form 10-D Disclosure :  As defined in Section 6.21(a)(i).

Additional Form 10-K Disclosure :  As defined in Section 6.21(b)(i).

Adjustment Date :  As to any Mortgage Loan, the date on which the related Mortgage Rate adjusts in accordance with the terms of the related Mortgage Note.

Advance :  With respect to a Mortgage Loan, the payments required to be made by the Master Servicer or the applicable Servicer with respect to any Distribution Date pursuant to this Agreement or the Servicing Agreements, as applicable, the amount of any such payment being equal to the aggregate of the payments of principal and interest (net of the Master Servicing Fee and/or the applicable Servicing Fee and net of any net income in the case of any REO Property) on the Mortgage Loans that were due on the related Due Date and not received as of the close of business on the related Determination Date, less the aggregate amount of any such delinquent payments that the Master Servicer or the Servicers have determined would constitute Nonrecoverable Advances if advanced.

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 Expense Rate :  With respect to any Mortgage Loan, the sum of the Master Servicing Fee Rate, the applicable Servicing Fee Rate and the premium rate of any lender-paid Primary Mortgage Insurance Policy, expressed as an annual rate.

Aggregate Senior Percentage :  As to any Distribution Date, the percentage equivalent of a fraction, the numerator of which is the aggregate of the Class Principal Amounts of the Class 1-A1, Class 1-A2, Class 1-AR, Class 2-A1, Class 2-A2, Class 3-A1, Class 3-A2, Class 4-A1, Class 4-A2, Class 5-A1 and Class 5-A2 Certificates and the denominator of which is the Aggregate Stated Principal Balance for such date, but in no event greater than 100%.

Aggregate Stated Principal Balance :  As to any Distribution Date, the aggregate of the Stated Principal Balances for all Mortgage Loans (and when such term is used with respect to a particular Mortgage Pool, the aggregate of the Stated Principal Balances of the Mortgage Loans in such Mortgage Pool) which were outstanding on the Due Date in the month preceding the month of such Distribution Date.

Aggregate Subordinate Percentage :  As to any Distribution Date, the excess of 100% over the Aggregate Senior Percentage for such Distribution Date, but in no event less than zero.

Aggregate Voting Interests :  The aggregate of the Voting Interests of all the Certificates under this Agreement.

Agreement :  This Pooling and Servicing Agreement and all amendments and supplements hereto.

Applicable Credit Support Percentage :  As to any Class of Subordinate Certificates and any Distribution Date, the sum of the Class Subordination Percentage of such Class and the aggregate of the Class Subordination Percentages of all other Classes (if any) of Subordinate Certificates that rank lower in priority than such Class.

Apportioned Principal Balance :  As to any Distribution Date and each Class of Subordinate Certificates, the Class Principal Amount thereof immediately prior to that Distribution Date, multiplied by a fraction, the numerator of which is the applicable Pool Subordinate Amount ( i.e. , the Pool 1 Subordinate Amount, the Pool 2 Subordinate Amount, the Pool 3 Subordinate Amount, the Pool 4 Subordinate Amount or the Pool 5 Subordinate Amount, as the case may require), and the denominator of which is the sum of the Pool Subordinate Amounts, in each case, on such date.

Appraised Value :  With respect to any Mortgage Loan, the Appraised Value of the related Mortgaged Property shall be:  (i) with respect to a Mortgage Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of the Mortgaged Property based upon the appraisal made at the time of the origination of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the time of the origination of such Mortgage Loan; and (ii) with respect to a Refinancing Mortgage Loan, the value of the Mortgaged Property based upon the appraisal made at the time of the origination of such Refinancing Mortgage Loan.

 

Assessment of Compliance :  As defined in Section 6.23(a).

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.

Authenticating Agent :  Any authenticating agent appointed by the Trustee pursuant to Section 6.10 until any successor authenticating agent for the Certificates is named, and thereafter  “Authenticating Agent” shall mean any such successor.  The initial Authenticating Agent shall be the Securities Administrator under this Agreement.

Authorized Officer :  Any Person who may execute an Officer’s Certificate on behalf of the Depositor.

Available Distribution Amount :  With respect to any Distribution Date and each Mortgage Pool, the total amount of all cash, including that portion of the Redemption Price (if applicable) received by the Master Servicer or the Securities Administrator in respect of the Mortgage Loans in such Mortgage Pool from each Servicer or otherwise through the Distribution Account Deposit Date for deposit into the Distribution Account in respect of such Distribution Date, including (1) all scheduled installments of interest (net of the related Servicing Fees and Master Servicing Fees) and principal collected on the related Mortgage Loans and due during the Due Period related to such Distribution Date, together with any Advances in respect thereof, (2) all Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and the proceeds of any Additional Collateral from the related Mortgage Loans, in each case for such Distribution Date, (3) all partial or full Principal Prepayments, together with any accrued interest thereon, identified as having been received from the related Mortgage Loans during the related Prepayment Period, (4) any amounts paid by the Master Servicer and/or received from the Servicers in respect of Prepayment Interest Shortfalls with respect to the related Mortgage Loans; and (5) the aggregate Purchase Price of all Defective Mortgage Loans in such Mortgage Pool purchased from the Trust Fund during the related Prepayment Period, minus :

 

Back-Up Certification :  As defined in Section 6.21(e).

Bankruptcy :  As to any Person, the making of an assignment for the benefit of creditors, the filing of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent, the entry of an order for relief in a bankruptcy or insolvency proceeding, the seeking of reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief, or seeking, consenting to or acquiescing in the appointment of a trustee, receiver or liquidator, dissolution, or termination, as the case may be, of such Person pursuant to the provisions of either the Bankruptcy Code or any other similar state laws.

Bankruptcy Code :  The United States Bankruptcy Code of 1986, as amended.

BBA :  The British Banker’s Association.

Benefit Plan Opinion :  An Opinion of Counsel satisfactory to the Certificate Registrar to the effect that any proposed transfer will not (i) cause the assets of the Trust Fund to be regarded as plan assets for purposes of the Plan Asset Regulations or (ii) give rise to any fiduciary duty on the part of the Depositor or the Trustee.

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 Book-Entry Termination 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, the following Classes of Certificates constitute Book-Entry Certificates:  Class 1-A1, Class 1-A2, Class 1-XA, Class 2-A1, Class 2-A2, Class 3-A1, Class 3-A2, Class 4-A1, Class 4-A2, Class 5-A1, Class 5-A2, Class B-1, Class B-2 and Class B-3.

 

Book-Entry Termination :  As defined in Section 3.09(c).

Business Day :  Any day other than (i) a Saturday or a Sunday or (ii) a day on which banking institutions in New York, New York or, if other than New York, the city in which the Corporate Trust Office of the Trustee is located, or the States of Maryland or Minnesota, are authorized or obligated by law or executive order to be closed.

Certificate :  Any one of the certificates signed by the Trustee and authenticated by the Securities Administrator as Authenticating Agent in substantially the forms attached hereto as Exhibit A.

Certificate Group :  Each of the Group 1 Certificates, the Group 2 Certificates, the Group 3 Certificates, the Group 4 Certificates and the Group 5 Certificates.

Certificate Interest Rate :  With respect to each Class of Certificates and any Distribution Date, the applicable per annum rate described in the Preliminary Statement to this Agreement.

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 an Interest-Only 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, less (i) the amount of all principal distributions previously made with respect to such Certificate; (ii) all Realized Losses allocated to such Certificate; provided, however , that on any Distribution Date on which a Subsequent Recovery is distributed, the Certificate Principal Amount of any Certificate then outstanding to which a Realized Loss amount has been applied will be increased sequentially, in order of seniority, by an amount equal to the lesser of (A) the Realized Loss amount previously allocated to that Certificate and (B) any Subsequent Recovery allocable to such Certificate after application (for this purpose) to more senior Classes of Certificates pursuant to this Agreement and (iii) in the case of a Subordinate Certificate, any Subordinate Certificate Writedown Amount allocated to such Certificates.  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.  Interest-Only Certificates, if applicable, are issued without Certificate Principal Amounts.

 

 

Certificate Register and Certificate Registrar :  The register maintained and the registrar appointed pursuant to Section 3.02.  The Securities Administrator will act as the initial Certificate Registrar.

Certificateholder :  The meaning provided in the definition of “Holder.”

Certification Parties :  As defined in Section 6.21(e).

Certifying Person :  As defined in Section 6.21(e).

Civil Relief Act :  The Servicemembers Civil Relief Act, as amended, or any similar state or local law.

Class :  Collectively, Certificates bearing the same class designation.  In the case of the Lower-Tier REMIC, the term “Class” refers to all Lower-Tier Interests having the same alphanumeric designation.

Class 1-AR Certificate :  The Class 1-AR Certificate executed by the Trustee, and authenticated and delivered by the Authenticating Agent, substantially in the form annexed hereto as Exhibit A, and evidencing the ownership of the sole residual interest in each of the Middle-Tier and Upper-Tier REMICs.

Class LT-R Certificate :  The Class LT-R Certificate executed by the Trustee and authenticated and delivered by the Authenticating Agent, substantially in the form annexed as Exhibit A and evidencing ownership of the LT-R Interest.

Class Notional Amount :  With respect to any Class of Interest-Only Certificates, the applicable class notional amount calculated as provided in the Preliminary Statement to this Agreement.

Class Principal Amount :  With respect to each Class of Certificates (other than an Interest-Only Certificate), the aggregate of the Certificate Principal Amounts of all Certificates of such Class at the date of determination.  With respect to any Lower-Tier Interest, the initial Class Principal Amount as shown or described in the table set forth in the Preliminary Statement to this Agreement for the issuing REMIC, as reduced by principal distributed with respect to such Lower-Tier Interest and Realized Losses allocated to such Lower-Tier Interest at the date of determination.

Class Subordination 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 aggregate of the Class Principal Amounts of all Classes of Certificates immediately prior to such Distribution Date.

Clearing Agency :  An organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.  As of the Closing Date, the Clearing Agency shall be The Depository Trust Company.

 

 

Clearing Agency Participant :  A broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.

Closing Date :  __________ __, 20__.

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 Accounts :  Each collection account (other than an Escrow Account) established and maintained by a Servicer pursuant to a Servicing Agreement.

Commission :  U.S. Securities and Exchange Commission.

Compensating Interest Payment :  As to any Distribution Date, the lesser of (1) the Master Servicing Fee for such date and (2) any Prepayment Interest Shortfall for such date.

Component :  Not applicable.

Component Interest Rate :  Not applicable.

Component Notional Amount :  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 Property :  The real property and improvements owned by the Cooperative Corporation, that includes the allocation of individual dwelling units to the holders of the shares of the Cooperative Corporation.

Cooperative Shares :  Shares issued by a Cooperative Corporation.

Corporate Trust Office :  With respect to the Trustee, the principal corporate trust office of the Trustee located at [                 , Attention: Trustee Sequoia Mortgage Trust 20__-_], 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 Certificate  Registrar and presentment of Certificates for registration of transfer, exchange or final payment, [                   , Attention: Sequoia Mortgage Trust 20__-_].

Corresponding Class of Certificates :  With respect to each Lower-Tier Interest or Middle-Tier Interest, the Class or Classes of Certificates appearing opposite such Lower-Tier Interest or Middle-Tier Interest, respectively, as described in the Preliminary Statement to this Agreement.

 

 

Credit Support Depletion Date :  The first Distribution Date, if any, on which the aggregate of the Class Principal Amounts of the Subordinate Certificates has been reduced to zero.

Current Interest :  With respect to each Class of Certificates and any Distribution Date, the aggregate amount of interest accrued at the applicable Certificate Interest Rate during the related Accrual Period on the Class Principal Amount or Class Notional Amount, as applicable, of such Class immediately prior to such Distribution Date.

Custodian :  A Person who is at anytime appointed by the Trustee and the Depositor as a custodian of all or a portion of the Mortgage Documents and the related Trustee Mortgage Files and listed on the Mortgage Loan Schedule as the Custodian of such Mortgage Documents and related Trustee Mortgage Files.  The initial Custodian is [                        ].

Custody Agreement : The Custody Agreement, dated as of ____________ __, 20__, among the Depositor, the Seller, the Trustee and [           , as Custodian].  A copy of the Custody Agreement is attached hereto as Exhibit D.

Cut-off Date :  ____________ __, 20__.

Debt Service Reduction :  With respect to any Mortgage Loan, a reduction by a court of competent jurisdiction in a proceeding under the Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became final and non-appealable, except such a reduction resulting from a Deficient Valuation or any reduction that results in a permanent forgiveness of principal.

Defective Mortgage Loan :  The meaning specified in Section 2.04.

Deficient Valuation :  With respect to any Mortgage Loan, a valuation of the related Mortgaged Property by a court of competent jurisdiction in an amount less than the then outstanding indebtedness under the Mortgage Loan, or any reduction in the amount of principal to be paid in connection with any Scheduled Payment that results in a permanent forgiveness of principal, which valuation or reduction results from an order of such court which is final and non-appealable in a proceeding under the Bankruptcy Code.

Definitive Certificate :  A Certificate of any Class issued in definitive, fully registered, certificated form.

Deleted Mortgage Loan :  As defined in the applicable Purchase Agreement.

Delinquent :  Any Mortgage Loan with respect to which the Scheduled Payment due on a Due Date is not received, based on the MBA method of calculating delinquency.

Depositor :  Sequoia Residential Funding, Inc., a Delaware corporation having its principal place of business in California, or its successors in interest.

Determination Date :  With respect to each Distribution Date, the 18th day of the month in which such Distribution Date occurs, or, if such 18th day is not a Business Day, the next succeeding Business Day; provided, however , that with respect to a Servicer, the Determination Date is the date set forth in the related Servicing Agreement.

 

 

Disqualified Organization :  A “disqualified organization” as defined in Section 860E(e)(5) of the Code.

Distribution Account :  The separate Eligible Account created and maintained by the Securities Administrator, on behalf of the Trustee, pursuant to Section 4.01.  Funds in the Distribution Account (exclusive of any earnings on investments made with funds deposited in the Distribution Account) shall be held in trust for the Trustee and the Certificateholders for the uses and purposes set forth in this Agreement.

Distribution Account Deposit Date :  The 18th day of each calendar month after the initial issuance of the Certificates or, if such 18th day is not a Business Day, the immediately preceding Business Day, commencing in ___________ 20__.

Distribution Date :  The 20th day of each month or, if such 20th day is not a Business Day, the next succeeding Business Day, commencing in ___________ 20__.

Distribution Date Statement :  As defined in Section 4.04.

Document Transfer Event :  The day on which (i) [                    ] or any successor thereto is no longer a Servicer of any of the Mortgage Loans, (ii) the senior, unsecured long-term debt rating of [                ] is less than “BBB-” by Fitch or (iii) any Rating Agency requires such Servicer to deliver the Retained Mortgage Files to the Custodian.

Due Date :  With respect to any Mortgage Loan, the date on which a Scheduled Payment is due under the related Mortgage Note as indicated in the applicable Servicing Agreement.

Due Period :  As to any Distribution Date, the period beginning on the second day of the month preceding the month of such Distribution Date, and ending on the first day of the month of such Distribution Date.

Effective Loan-to-Value Ratio :  A fraction, expressed as a percentage, the numerator of which is the original Stated Principal Balance of the Mortgage Loan, less the amount of Additional Collateral required to secure such Mortgage Loan at the time of origination, if any, and the denominator of which is the Appraised Value of the related Mortgage Property at such date.

Eligible Account :  Any of (i) an account or accounts maintained with a federal or state chartered depository institution or trust company the short-term unsecured debt obligations of which (or, in the case of a depository institution or trust company that is the principal subsidiary of a holding company, the debt obligations of such holding company) have the highest short-term ratings of each Rating Agency at the time any amounts are held on deposit therein, or (ii) a trust account or accounts maintained with the trust department of a federal or state chartered depository institution or trust company, acting in its fiduciary capacity or (iii) any other account acceptable to each Rating Agency. Eligible Accounts may bear interest, and may include, if otherwise qualified under this definition, accounts maintained with the Trustee, the Paying Agent, the Securities Administrator or the Master Servicer.  If the depository institution or trust company that maintains the account or accounts receives a downgrade in its rating such that it is no longer acceptable to the Rating Agencies, the funds on deposit therewith in connection with this transaction shall be transferred to an Eligible Account within 30 days of such downgrade.

 

ERISA :  The Employee Retirement Income Security Act of 1974, as amended.

ERISA-Qualifying Underwriting :  A best efforts or firm commitment underwriting or private placement that meets the requirements of an Underwriter’s Exemption.

ERISA-Restricted Certificate :  The Class 1-AR, Class LT-R, Class B-4, Class B-5 or Class B-6 Certificates, any Retained Certificates until such Retained Certificates have been subject to an ERISA-Qualifying Underwriting and any Certificate that does not satisfy the applicable rating requirement under the Underwriter’s Exemption.

ERISA-Restricted Purchase Option Certificate :  Any Certificate other than an ERISA-Restricted Certificate.

Escrow Account :  As defined in Section 1 of each Servicing Agreement.

Event of Default :  Any one of the conditions or circumstances enumerated in Section 6.14.

Exchange Act :  The Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

Excluded Trust Property :  As defined in the Preliminary Statement.

Fannie Mae :  The Federal National Mortgage Association, a federally chartered and privately owned corporation organized and existing under the Federal National Mortgage Association Charter Act, or any successor thereto.

FDIC :  The Federal Deposit Insurance Corporation or any successor thereto.

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.

Fitch :  Fitch, Inc., or any successor in interest.

Form 8-K Disclosure Information :  As defined in Section 6.21(c)(i).

Global Securities :  The global certificates representing the Book-Entry Certificates.

Group 1 :  All of the Group 1 Certificates.

Group 1 Certificate :  Any Class 1-A1, Class 1-A2, Class 1-XA or Class 1-AR Certificate.

 

Group 1 Step-Up Date :  The Distribution Date on which the then Aggregate Stated Principal Balance of the Mortgage Loans is equal to or less than 5% of the Aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.

 

Group 2 :  All of the Group 2 Certificates.

Group 2 Certificate :  Any Class 2-A1 or Class 2-A2 Certificate.

Group 3 :  All of the Group 3 Certificates.

Group 3 Certificate :  Any Class 3-A1 or Class 3-A2 Certificate.

Group 4 :  All of the Group 4 Certificates.

Group 4 Certificate :  Any Class 4-A1 or Class 4-A2 Certificate.

Group 5 :  All of the Group 5 Certificates.

Group 5 Certificate :  Any Class 5-A1 or Class 5-A2 Certificate.

Holder or Certificateholder :  The registered owner of any Certificate as recorded on the books of the Certificate Registrar except that, solely for the purposes of taking any action or giving any consent pursuant to this Agreement, any Certificate registered in the name of the Depositor, the Trustee, the Master Servicer, the Securities Administrator and 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, the Certificate Registrar and the Securities Administrator may request and conclusively rely on certifications by the Depositor, the Master Servicer, the Securities Administrator or any Servicer in determining whether any Certificates are registered to an Affiliate of the Depositor, the Master Servicer, the Securities Administrator or any Servicer.

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.

Index :  As to each Mortgage Loan, the index from time to time in effect for adjustment of the Mortgage Rate as set forth as such on the related Mortgage Note.

Initial One-Month LIBOR Rate :  [    ]%.

 

Initial Trust Receipt .  With respect to any Mortgage Loan, as defined in the Custody Agreement.

 

Insurance Policy :  With respect to any Mortgage Loan, any insurance policy, including all names and endorsements thereto in effect, including any replacement policy or policies for any Insurance Policies.

Insurance Proceeds :  Proceeds paid by any Insurance Policy (excluding proceeds required to be applied to the restoration and repair of the related Mortgaged Property or released to the Mortgagor), in each case other than any amount included in such Insurance Proceeds in respect of Insured Expenses and (i) the proceeds from any Limited Purpose Surety Bond.

Insured Expenses :   Expenses covered by an Insurance Policy or any other insurance policy with respect to the Mortgage Loans.

Interest Distribution Amount :  For each Class of Certificates on any Distribution Date, the Current Interest for such Class as reduced by such Class’s share of Net Prepayment Interest Shortfalls and Relief Act Shortfalls.  Any such shortfalls and reductions shall be allocated among (i) the Senior Certificates of a Certificate Group, proportionately based on the amount of Net Prepayment Interest Shortfalls and Relief Act Shortfalls experienced by the related Mortgage Pool and related Current Interest otherwise distributable thereon on such Distribution Date and (ii) the Subordinate Certificates, the amount of Net Prepayment Interest Shortfalls and Relief Act Shortfalls experienced by all the Mortgage Loans and interest accrued on their Apportioned Principal Balances before taking into account any reductions in such amounts from shortfalls for that Distribution Date.

Interest-Only Certificates :  The Class 1-XA Certificates.

Interest Shortfall :  As to any Class of Certificates and any Distribution Date, (i) the amount by which the Interest Distribution Amount for such Class on such Distribution Date and all prior Distribution Dates exceeds (ii) amounts distributed in respect thereof to such Class on prior Distribution Dates.

Interest Transfer Amount :  With respect to any Distribution Date and for any Undercollateralized Group, an amount equal to one month’s interest on the applicable Principal Transfer Amount at the Pool 1 Net WAC (if Pool 1 is an Undercollateralized Group), the Pool 2 Net WAC (if Pool 2 is an Undercollateralized Group), the Pool 3 Net WAC (if Pool 3 is an Undercollateralized Group), the Pool 4 Net WAC (if Pool 4 is an Undercollateralized Group) or the Pool 5 Net WAC (if Pool 5 is an Undercollateralized Group), plus any interest accrued on such Undercollateralized Group remaining unpaid from prior Distribution Dates.

Intervening Assignments :  The original intervening assignments of the Mortgage, notices of transfer or equivalent instrument.

Item 1123 Certificate :  As defined in Section 6.22.

Latest Possible Maturity Date :  The Distribution Date occurring in _________ 20__.

 

LIBOR Business Day :  Any day on which banks in London, England and The City of New York are open and conducting transactions in foreign currency and exchange.

 

LIBOR Certificate :  Any Class 1-A1 or Class 1-A2 Certificate.

LIBOR Determination Date :  With respect to each Class of LIBOR Certificates and any Distribution Date, the second LIBOR Business Day immediately preceding the commencement of the Accrual Period related to such Distribution Date.

Limited Purpose Surety Bond :  Any Limited Purpose Surety Bond listed in Exhibit G.

Liquidated Mortgage Loan :  With respect to any Distribution Date, a defaulted Mortgage Loan (including any REO Property) which was liquidated in the calendar month preceding the month of such Distribution Date and as to which the related Servicer has certified (in accordance with its Servicing Agreement) that it has received all amounts it expects to receive in connection with the liquidation of such Mortgage Loan including the final disposition of an REO Property.

Liquidation Proceeds :  Amounts, including Insurance Proceeds, received in connection with the partial or complete liquidation of defaulted Mortgage Loans, whether through trustee’s sale, foreclosure sale or otherwise or amounts received in connection with any condemnation or partial release of a Mortgaged Property and any other proceeds received in connection with an REO Property.

Loan-To-Value Ratio :  With respect to any Mortgage Loan and as to any date of determination, the fraction (expressed as a percentage) the numerator of which is the principal balance of the related Mortgage Loan at such date of determination and the denominator of which is the Appraised Value of the related Mortgaged Property.

Lower-Tier Interest :  Any one of the interests in the Lower-Tier REMIC as described in the Preliminary Statement to this Agreement.

Lower-Tier REMIC :  As described in the Preliminary Statement to this Agreement.

LT-R Interest :  The residual interest in the Lower-Tier REMIC, as described in the Preliminary Statement to this Agreement.

Margin :  As to each Mortgage Loan, the percentage amount set forth on the related Mortgage Note added to the Index in calculating the Mortgage Rate thereon.

Master Servicer :  [                      ], N.A., a national banking association organized under the laws of the United States in its capacity as Master Servicer and any Person succeeding as Master Servicer hereunder 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 :  With respect to any Distribution Date, an amount equal to the product of one-twelfth of the Master Servicing Fee Rate and the Stated Principal Balance of each Mortgage Loan as of the first day of the related Due Period.

Master Servicing Fee Rate :  [      ]% per annum.

 

Maximum Rate :  As to any Mortgage Loan, the maximum rate set forth on the related Mortgage Note at which interest can accrue on such Mortgage Loan.

 

MERS :  Mortgage Electronic Registration Systems, Inc., or its successors or assigns.

MERS Designated Mortgage Loan :  Each Mortgage Loan that has been originated in the name of, or assigned to, MERS and registered under the MERS System.

MERS System :  The system of recording transfers of mortgages electronically maintained by MERS.

Middle-Tier Interest :  Any one of the interests in the Middle-Tier REMIC as described in the Preliminary Statement to this Agreement.

Middle-Tier REMIC :  As described in the Preliminary Statement to this Agreement.

Moody’s :  Moody’s Investors Service, Inc., or any successor in interest.

Mortgage :  A mortgage, deed of trust or other instrument encumbering a fee simple interest in real property securing a Mortgage Note, together with improvements thereto.

Mortgage Documents :  With respect to each Mortgage Loan, the mortgage documents required to be delivered to the Custodian pursuant to the Custody Agreement.

Mortgage Loan :  A Mortgage and the related notes or other evidences of indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned to or deposited with the Trustee pursuant to Section 2.01 (including any Replacement Loan and REO Property), including without limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as amended from time to time.

Mortgage Loan Purchase and Sale Agreement :  The mortgage loan purchase and sale agreement, dated as of ____________ __, 20__, between the Seller and the Depositor.

Mortgage Loan Schedule :  The schedule attached hereto as Schedule A, which shall identify each Mortgage Loan, as such schedule may be amended  by the Depositor or the Servicer from time to time to reflect the addition of Replacement Mortgage Loans to, or the deletion of Deleted Mortgage Loans from, the Trust Fund.  Such schedule shall, among other things (i) designate the Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate (and the rate of any subservicing fee, if applicable); (ii) identify the designated Mortgage Pool in which such Mortgage Loan is included; (iii) separately identify the Mortgage Loans with Mortgage Rates that adjust based on the one-month LIBOR index, six-month LIBOR index, one-year LIBOR index and one-year CMT index; (iv) separately identify Additional Collateral Mortgage Loans; and (v) designate the rate of any lender-paid Primary Mortgage Insurance Policy.

Mortgage Note :  The original executed note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage under a Mortgage Loan.

Mortgage Pool :  Each of Pool 1, Pool 2, Pool 3, Pool 4 and Pool 5.

 

 

Mortgaged Property :  The underlying property, including any Additional Collateral, securing a Mortgage Loan which, with respect to a Cooperative Loan, is the related Cooperative Shares and Property Lease.

Mortgage Rate :  As to any Mortgage Loan and any Distribution Date, the annual rate of interest borne by the related Mortgage Note as of the related Due Date.

Mortgagor :  The obligor on a Mortgage Note.

MT-R Interest :  The residual interest in the Middle-Tier REMIC, as described in the Preliminary Statement to this Agreement.

Net Liquidation Proceeds :  With respect to any Liquidated Mortgage Loan or any other disposition of related Mortgaged Property, the related Liquidation Proceeds net of Advances, Servicer Advances, related Servicing Fees and/or Master Servicing Fees and any other accrued and unpaid servicing fees received and retained in connection with the liquidation of such Mortgage Loan or Mortgaged Property.

Net Mortgage Rate :  With respect to any Mortgage Loan and any Distribution Date, the related Mortgage Rate as of the Due Date in the month preceding the month of such Distribution Date reduced by the Aggregate Expense Rate for such Mortgage Loan.

Net Prepayment Interest Shortfall :  With respect to any Mortgage Loan and any Distribution Date, the amount by which any Prepayment Interest Shortfall for the related Due Period exceeds the amount of Compensating Interest Payment paid by the Master Servicer and related amounts paid by the applicable Servicer in respect of such shortfall for such Due Period.

Net WAC Shortfall :  For any Class of LIBOR Certificates and any Distribution Date, the sum of:

Non-Book-Entry Certificate :  Any Certificate other than a Book-Entry Certificate.

Non-permitted Foreign Holder :  As defined in Section 3.03(g).

Nonrecoverable Advance :  Any portion of an Advance or Servicer Advance previously made or proposed to be made by the Master Servicer and/or a Servicer (as certified in an Officer’s Certificate of the Servicer), which in the good faith judgment of such party, shall not be ultimately recoverable by such party from the related Mortgagor, related Liquidation Proceeds or otherwise.

 

Non-Upper-Tier REMIC :  As defined in Section 10.01(d).

Non-U.S. Person :  Any person other than a “United States person” within the meaning of Section 7701(a)(30) of the Code.

Notional Amount :  With respect to an Interest-Only Certificate and any Distribution Date, such Certificate’s Percentage Interest of the Class Notional Amount of such Class of Certificates for such Distribution Date.

Officer’s Certificate :  A certificate signed by two Authorized Officers of the Depositor or the Chairman of the Board, any Vice Chairman, the President, any Vice President or any Assistant Vice President of the Master Servicer or the Securities Administrator, and in each case delivered to the Trustee or the Securities Administrator, as provided in this Agreement.

Officer’s Certificate of the Servicer :  A certificate (i) signed by the Chairman of the Board, the Vice Chairman of the Board, the President, a Managing Director, a Vice President (however denominated), an Assistant Vice President, the Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant Secretaries of a Servicer, or (ii) if provided for herein, signed by a Servicing Officer, as the case may be, and delivered to the Trustee, the Securities Administrator or the Master Servicer, as required hereby.

One-Month LIBOR :  With respect to the first Accrual Period, the Initial One-Month LIBOR Rate.  With respect to each subsequent Accrual Period, a per annum rate determined on the LIBOR Determination Date for the LIBOR Certificates in the following manner by the Securities Administrator on the basis of the “Interest Settlement Rate” set by the BBA for one-month United States dollar deposits (1) as such rates appear on the Reuters screen “LIBOR01” as of 11:00 a.m. (London time) on such LIBOR Determination Date or (2) if such rate does not appear on the Reuters screen “LIBOR01” as of 11:00 a.m. (London time), the Securities Administrator will obtain such rate from the Bloomberg L.P. page “US0001M.”

 

Opinion of Counsel :  A written opinion of counsel, reasonably acceptable in form and substance to the Trustee, the Securities Administrator or the Master Servicer, as required hereby, and who may be in-house or outside counsel to the Depositor, the Master Servicer, the Securities Administrator or the Trustee but which must be Independent outside counsel with respect to any such opinion of counsel concerning the transfer of any Residual Certificate or concerning certain matters with respect to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or the taxation, or the federal income tax status, of each REMIC.

Original Applicable Credit Support Percentage :  With respect to each Class of Subordinate Certificates, the related Applicable Credit Support Percentage as of the Closing Date, which shall be equal to the corresponding approximate percentage set forth in the table below opposite its Class designation:

Original Subordinate Class Principal Amount :  The aggregate of the initial Class Principal Amounts of the Classes of Subordinate Certificates.

Overcollateralized Group :  On any Distribution Date, the Certificate Group which is not an Undercollateralized Group.

Paying Agent :  Any paying agent appointed pursuant to Section 3.08.  The initial Paying Agent shall be the Securities Administrator under this Agreement.

Percentage Interest :  With respect to any Certificate, its percentage interest in the undivided beneficial ownership interest in the Trust Fund evidenced by all Certificates of the same Class as such Certificate.  With respect to any Certificate, other than an Interest-Only Certificate, if applicable, or the Class 1-AR and Class LT-R Certificates, 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 each of the Class 1-AR and the Class LT-R Certificates, the Percentage Interest evidenced thereby shall be as specified on the face thereof, or otherwise, be equal to 100%.  With respect to an Interest-Only Certificate, the Percentage Interest evidenced thereby shall equal its initial Notional Amount as set forth on the face thereof divided by the initial Class Notional Amount of such Class.

Permitted Investments :  At any time, any one or more of the following obligations and securities:

 

 

 

 

provided, that no such instrument shall be a Permitted Investment if (i) such instrument evidences the right to receive interest only payments with respect to the obligations underlying such instrument, (ii) such instrument would require the Depositor to register as an investment company under the Investment Company Act of 1940, as amended or (iii) the rating of such instrument contains a “t” or “r” notation therein; provided further, that for all Eligible Investments rated at least “A1/A+” (short/long) by S&P that have terms greater than 60 days, in the event of a downgrade of such Eligible Investment below “A1” (or “A+” if no short term rating) such Eligible Investment shall be removed and transferred to another Eligible Investment within 60 days of such downgrade.

Person :  Any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof.

Plan :  An employee benefit plan or other retirement arrangement which is subject to Section 406 of ERISA and/or Section 4975 of the Code or any entity whose underlying assets include such plan’s or arrangement’s assets by reason of their investment in the entity.

Plan Asset Regulations :  The Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.

Pool 1 :  The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 1.

Pool 1 Mortgage Loan :  Any Mortgage Loan in Pool 1.

 

 

Pool 1 Net WAC :  With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 1 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances.

Pool 1 Subordinate Amount :  For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 1 Mortgage Loans over the aggregate of the Class Principal Amounts of the Class 1-A1, Class 1-A2 and Class 1-AR Certificates immediately before such Distribution Date.

Pool 2 :  The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 2.

Pool 2 Mortgage Loan :  Any Mortgage Loan in Pool 2.

Pool 2 Net WAC :  With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 2 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances.

Pool 2 Subordinate Amount :  For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 2 Mortgage Loans over the aggregate of the Class Principal Amounts of the Class 2-A1 and Class 2-A2 Certificates immediately before such Distribution Date.

Pool 3 :  The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 3.

Pool 3 Mortgage Loan :  Any Mortgage Loan in Pool 3.

Pool 3 Net WAC :  With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 3 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances.

Pool 3 Subordinate Amount :  For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 3 Mortgage Loans over the aggregate of the Class Principal Amounts of the Class 3-A1 and Class 3-A2 Certificates immediately before such Distribution Date.

Pool 4 :  The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 4.

Pool 4 Mortgage Loan :  Any Mortgage Loan in Pool 4.

Pool 4 Net WAC :  With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 4 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances.

 

 

Pool 4 Subordinate Amount :  For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 4 Mortgage Loans over the aggregate of the Class Principal Amounts of the Class 4-A1 and Class 4-A2 Certificates immediately before such Distribution Date.

Pool 5 :  The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 5.

Pool 5 Mortgage Loan :  Any Mortgage Loan in Pool 5.

Pool 5 Net WAC :  With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 5 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances.

Pool 5 Subordinate Amount :  For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 5 Mortgage Loans over the aggregate of the Class Principal Amounts of the Class 5-A1 and Class 5-A2 Certificates immediately before such Distribution Date.

Pool Percentage :  With respect to each Mortgage Pool and any Distribution Date, a fraction, expressed as a percentage, the numerator of which is the Aggregate Stated Principal Balance of such Mortgage Pool, and the denominator of which is the sum of the Aggregate Stated Principal Balances of all of the Mortgage Pools as of such Due Date.

Pool Subordinate Amount :  Any of the Pool 1 Subordinate Amount, the Pool 2 Subordinate Amount, the Pool 3 Subordinate Amount, the Pool 4 Subordinate Amount or the Pool 5 Subordinate Amount.

Prepayment Interest Shortfall :  With respect to any full or partial Principal Prepayment of a Mortgage Loan, the excess, if any, of (i) one full month’s interest at the applicable Mortgage Rate on the Stated Principal Balance of such Mortgage Loan immediately prior to such Principal Prepayment over (ii) the amount of interest actually received with respect to such Mortgage Loan in connection with such Principal Prepayment.

Prepayment Period :  With respect to each Distribution Date, the calendar month immediately preceding the month in which the Distribution Date occurs.

Primary Mortgage Insurance Policy :  Each policy of primary mortgage guaranty insurance or any replacement policy therefor with respect to any Mortgage Loan.

Principal Distribution Amount :  With respect to any Mortgage Pool and any Distribution Date, the sum of (a) each Scheduled Payment of principal collected or advanced on the related Mortgage Loans (before taking into account any Deficient Valuations or Debt Service Reductions) and due during the related Due Period, (b) that portion of the Purchase Price representing principal of any Mortgage Loans in such Mortgage Pool purchased in accordance with Section 2.04 hereof and received during the related Prepayment Period, (c) the principal portion of any related Substitution Amount received during the related Prepayment Period, (d) any Subsequent Recoveries and the principal portion of all Insurance Proceeds received during the related Prepayment Period with respect to Mortgage Loans in such Mortgage Pool that are not yet Liquidated Mortgage Loans, (e) the principal portion of all Net Liquidation Proceeds received during the related Prepayment Period with respect to Liquidated Mortgage Loans in such Mortgage Pool, (f) the principal portion of the proceeds of any Additional Collateral with respect to the Mortgage Loans in such Mortgage Pool, (g) the principal portion of all partial and full principal prepayments of Mortgage Loans in such Mortgage Pool applied by the Servicers during the related Prepayment Period and (h) on the Distribution Date on which the Trust Fund is to be terminated pursuant to Article X hereof, that portion of the Redemption Price in respect of principal for such Mortgage Pool.

 

Principal Prepayment :  Any Mortgagor payment of principal 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 Servicing Agreement.

Principal Prepayment In Full :  Any Principal Prepayment of the entire principal balance of the Mortgage Loans.

Principal Transfer Amount :  For any Distribution Date and for any Undercollateralized Group, the excess, if any, of the aggregate of the Class Principal Amounts of the Senior Certificates related to such Undercollateralized Group immediately prior to such Distribution Date, over the Aggregate Stated Principal Balance of the Mortgage Pool related to such Undercollateralized Group immediately prior to such Distribution Date.

Proceeding :  Any suit in equity, action at law or other judicial or administrative proceeding.

Proprietary Lease :  With respect to any Cooperative Property, a lease or occupancy agreement between a Cooperative Corporation and a holder of related Cooperative Shares.

Prospectus :  The prospectus supplement dated _________ __, 20__ and the accompanying prospectus dated _________ __, 20__, relating to the Class [   ], Class [   ] and Class [   ] Certificates, together with any supplement thereto.

Purchase Agreement : Each mortgage purchase agreement listed in Exhibit F hereto, as each such agreement has been modified by the related Acknowledgement.

Purchase Price :  With respect to any Mortgage Loan required or permitted to be purchased by the Seller or Depositor pursuant to this Agreement, by the Servicers pursuant to the Servicing Agreements, or by the Seller pursuant to the Purchase Agreements, an amount equal to the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the date of such purchase, (ii) accrued interest thereon at the applicable Net Mortgage Rate from the date through which interest was last paid by the Mortgagor to the Due Date in the month in which the Purchase Price is to be distributed to Certificateholders, or such other amount as may be specified in the related Servicing Agreement or Purchase Agreement and (iii) the amount of any costs and damages incurred by the Trust Fund as a result of any violation of any applicable federal, state, or local predatory or abusive lending law arising from or in connection with the origination of such Mortgage Loan.

 

Rapid Prepayment Conditions :  As to any Distribution Date, if (1) the Aggregate Subordinate Percentage on such date is less than 200% of the Aggregate Subordinate Percentage on the Closing Date; or (2) the outstanding Stated Principal Balance of the Mortgage Loans in any Mortgage Pool that are 60 days or more Delinquent (including such Mortgage Loans in REO, foreclosure and bankruptcy status) (averaged over the preceding six month period), as a percentage of the Pool Subordinate Amount of such Mortgage Pool, is greater than or equal to 50%.

Rating Agency :  Each of Moody’s and S&P.

Realized Loss :  With respect to each Liquidated Mortgage Loan, an amount (not less than zero or more than the Stated Principal Balance of the Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated Principal Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus (ii) interest at the Net Mortgage Rate from the Due Date as to which interest was last paid or advanced (and not reimbursed) to Certificateholders up to the Due Date in the month in which Liquidation Proceeds are required to be distributed on the Stated Principal Balance of such Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation Proceeds and the proceeds of any Additional Collateral, if any, received during the month in which such liquidation occurred, to the extent applied as recoveries of interest at the Net Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect to each Mortgage Loan which has become the subject of a Deficient Valuation, if the principal amount due under the related Mortgage Note has been reduced, the difference between the principal balance of the Mortgage Loan outstanding immediately prior to such Deficient Valuation and the principal balance of the Mortgage Loan as reduced by the Deficient Valuation.

Record Date :  As to any Distribution Date (i) with respect to the LIBOR Certificates, the last Business Day preceding such Distribution Date unless such Certificates shall no longer be Book-Entry Certificates, in which case the Record Date shall be the last Business Day of the month preceding the month of such Distribution Date and (ii) in the case of all other Certificates (including LIBOR Certificates that are subsequently reissued as Definitive Certificates), the last Business Day of the month preceding the month of each Distribution Date (or the Closing Date, in the case of the first Distribution Date).

Redemption Price :  With respect to each Class of Certificates, an amount equal to 100% of the related Class Principal Amount of such Certificates, together with interest on such amount at the applicable Certificate Interest Rate through the related Accrual Period (excluding the amount of any unpaid Net WAC Shortfalls with respect to the LIBOR Certificates), and including, the payment of all amounts (including, without limitation, all previously unreimbursed Advances and Servicer Advances and accrued and unpaid Servicing Fees) payable or reimbursable to the Trustee, the Securities Administrator, the Master Servicer and the Servicers pursuant to this Agreement and the Servicing Agreements, or to the Custodian under the Custody Agreement (to the extent such amounts are not paid to the Custodian by the Seller), as applicable.

 

 

Refinancing Mortgage Loan :  Any Mortgage Loan originated in connection with the refinancing of an existing mortgage loan.

Regulation AB :  Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and subject to such clarifications and interpretations as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

Relevant Servicing Criteria :  The Servicing Criteria applicable to each party, as set forth on Exhibit N 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 or any Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to such parties.

Related Certificate Group :  The Certificate Group related to a particular Mortgage Pool as indicated by the same numerical designation (i.e., Group 1 Certificates are related to Pool 1, the Group 2 Certificates are related to Pool 2, the Group 3 Certificates are related to Pool 3, the Group 4 Certificates are related to Pool 4 and the Group 5 Certificates are related to Pool 5).

Relief Act Shortfalls :  With respect to any Distribution Date and any Mortgage Loan as to which there has been a reduction in the amount of interest collectible thereon for the most recently ended calendar month as a result of the application of the Civil Relief Act, the amount, if any, by which (i) interest collectible on such Mortgage Loan for the most recently ended calendar month is less than (ii) interest accrued thereon for such month pursuant to the Mortgage Note.

REMIC :  Each pool of assets in the Trust Fund designated as a REMIC as described in the Preliminary Statement to this Agreement.

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 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.

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.

Replacement Mortgage Loan :  A mortgage loan substituted by the Seller for a Deleted Mortgage Loan which must, on the date of such substitution, as confirmed in a Request for Release, substantially in the form attached to the Custody Agreement, (i) have a Stated Principal Balance, after deduction of the principal portion of the Scheduled Payment due in the month of substitution, not in excess of, and not more than 10% less than, the Stated Principal Balance of the Deleted Mortgage Loan; (ii) have a Maximum Rate not less than (and not more than two percentage points greater than) the Maximum Rate of the Deleted Mortgage Loan; (iii) have a gross margin not less than that of the Deleted Mortgage Loan and, if Mortgage Loans equal to 1% or more of the balance of the related Mortgage Pool as of the Cut-off Date have become Deleted Mortgage Loans, not more than two percentage points more than that of the Deleted Mortgage Loan; (iv) have an Effective Loan-to-Value Ratio or Loan-to-Value Ratio, as applicable, no higher than that of the Deleted Mortgage Loan; (v) have Adjustment Dates that are no more or less frequent than the Deleted Mortgage Loan; (vi) have a remaining term to maturity no greater than (and not more than one year less than that of) the Deleted Mortgage Loan; (vii) not permit conversion of the related Mortgage Rate to a permanent fixed Mortgage Rate; (viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a Cooperative Loan; (ix) have the same or better Fair, Isaac & Company (FICO) credit score; (x) have an initial interest adjustment date no earlier than five months before (and no later than five months after) the initial adjustment date of the Deleted Mortgage Loan, (xi) comply with each representation and warranty set forth in Article III of each Purchase Agreement; and (xii) shall be accompanied by an Opinion of Counsel that such Replacement Mortgage Loan would not adversely affect the REMIC status of the Trust Fund or would not otherwise be prohibited by this Agreement.

 

Reportable Event :  As defined in Section 6.21(c)(i).

Reporting Servicer :  As defined in Section 6.21(b)(i).

Required Reserve Fund Deposit :  For any Distribution Date, an amount equal to the lesser of (i) the Current Interest for the Class 1-XA Certificates for such Distribution Date and (ii) the amount needed to increase the amount on deposit in the Reserve Fund to the sum of (a) Net WAC Shortfalls for such Distribution Date with respect to the Class 1-A1 and Class 1-A2 Certificates and (b) $10,000.

Reserve Fund :  A fund created as part of the Trust Fund pursuant to Section 5.06 of this Agreement (but which is not an asset of any REMIC).

Residual Certificate :  Each of the Class 1-AR and Class LT-R Certificates.

Responsible Officer :  With respect to the Trustee, any officer in the corporate trust department or similar group of the Trustee with direct responsibility for the administration of this Agreement and also, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

Restricted Certificate :  Any Class B-4, Class B-5, Class B-6 or Class LT-R Certificate.

Restricted Global Security :  As defined in Section 3.01(c).

Restricted Holder :  As defined in Section 3.03(d).

Retained Certificates :  Not applicable.

Retained Mortgage File :  Any file of mortgage loan documents maintained by [                     ], in its capacity as Servicer, pursuant to the related Servicing Agreement, prior to any Document Transfer Event.

 

 

S&P :  Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor in interest.

SAIF :  The Savings Association Insurance Fund, or any successor thereto.

Sarbanes Oxley Act :  The Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

Sarbanes-Oxley Certification : As defined in Section 6.21(e).

Schedule of Exceptions :  With respect to any Mortgage Loan, as defined in the Custody Agreement.

Scheduled Payment :  The scheduled monthly payment on a Mortgage Loan due on any Due Date allocable to principal and/or interest on such Mortgage Loan which, unless otherwise specified in the Servicing Agreements, shall give effect to any related Debt Service Reduction and any Deficient Valuation that affects the amount of the monthly payment due on such Mortgage Loan.

Securities Act :  The Securities Act of 1933, as amended, and the rules and regulations thereunder.

Securities Administrator :  [                    ], 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.  [                   ] shall act as Securities Administrator for so long as it is Master Servicer under this Agreement.

Seller :  RWT Holdings, Inc., a Delaware corporation.

Senior Certificate :  Any one of the Class A-[  ], Class A-[  ] or Class A-[  ] Certificates, as applicable.

Senior Percentage :  With respect to each Distribution Date and each Mortgage Pool, the percentage equivalent of a fraction, the numerator of which is the aggregate Class Principal Amounts of the Class or Classes of Senior Certificates of the Related Certificate Group immediately prior to such Distribution Date, and the denominator of which is the Aggregate Stated Principal Balance of the related Mortgage Pool for such Distribution Date.

Senior Prepayment Percentage :  With respect to any Distribution Date occurring before the Distribution Date in __________ 20__ and any Mortgage Pool, [    ]%.  Except as provided herein, the Senior Prepayment Percentage for each Mortgage Pool and any Distribution Date occurring in or after __________ 20__ shall be as follows:  (i) from __________ 20__ through __________ 20__, the related Senior Percentage plus [   ]% of the related Subordinate Percentage for that Distribution Date; (ii) from __________ 20__ through __________ 20__, the related Senior Percentage plus [   ]% of the related Subordinate Percentage for that Distribution Date; (iii) from __________ 20__ through __________ 20__, the related Senior Percentage plus [    ]% of the related Subordinate Percentage for that Distribution Date; (iv) from __________ 20__ through __________ 20__, the related Senior Percentage plus [   ]% of the related Subordinate Percentage for that Distribution Date; and (v) from and after __________ 20__, the related Senior Percentage for that Distribution Date; provided, however , that there shall be no reduction in the Senior Prepayment Percentage for the related Certificate Group unless both Step-Down Conditions are satisfied; and provided, further, that if on any such Distribution Date on or after the Distribution Date in __________ 20__, the related Senior Percentage for any Mortgage Pool exceeds the initial related Senior Percentage, the Senior Prepayment Percentage for all Mortgage Pools for that Distribution Date shall again equal 100%.

 

Notwithstanding the above, if on any Distribution Date the Two Times Test is satisfied  on any Distribution Date (i) before the Distribution Date in __________ 20__, the Senior Prepayment Percentage for each Mortgage Pool shall equal the related Senior Percentage for such Distribution Date plus [   ]% of an amount equal to the 100% minus the related Senior Percentage for such Distribution Date and (ii) on or after the Distribution Date in __________ 20__, the Senior Prepayment Percentage for each Mortgage Pool shall equal the related Senior Percentage for such Distribution Date.  In addition, if on any Distribution Date the allocation to the Senior Certificates then entitled to distributions of principal of full and partial principal prepayments and other amounts in the percentage required above would reduce the aggregate of the Class Principal Amounts of those Certificates to below zero, the related Senior Prepayment Percentage for such Distribution Date shall be limited to the percentage necessary to reduce that Class Principal Amount to zero.

Senior Principal Distribution Amount :  With respect to each Mortgage Pool and any Distribution Date, the sum of:

 

 

Senior Termination Date :  With respect to each Mortgage Pool, the date on which the aggregate of the Class Principal Amounts of the Senior Certificates related to such Mortgage Pool is reduced to zero.

Servicers :  Each Servicer under a Servicing Agreement.

Servicer Advance :  A “Servicing Advance” as defined in the applicable Servicing Agreement.

Servicer Remittance Date :  The 18th day of each calendar month after the initial issuance of the Certificates or, if such 18th day is not a Business Day, the immediately preceding Business Day, commencing in __________ 20__.

Service(s)(ing) :  In accordance with Regulation AB, the act of servicing and administering 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 and is subject to the disclosure requirements set forth in Item 1108 of Regulation AB.  Any uncapitalized occurrence of this term shall have the meaning commonly understood by participants in the residential mortgage-backed securitization market.

Servicing Agreement :  Each agreement listed in Exhibit E, as such agreement has been modified by the related Acknowledgement and as it may be amended or supplemented from time to time as permitted hereunder.

Servicing Criteria :  The criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such may be amended from time to time.

Servicing Fee :  As to any Distribution Date and each Mortgage Loan, an amount equal to the product of (a) one-twelfth of the Servicing Fee Rate and (b) the Stated Principal Balance of such Mortgage Loan as of the first day of the related Due Period.

Servicing Fee Rate :  With respect to each Mortgage Loan and any Distribution Date, the rate specified in the related Servicing Agreement.

Servicing Function Participant :  Any Subservicer or Subcontractor, other than each Servicer, the Master Servicer 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 Servicers involved in, or responsible for, the administration and servicing of the Mortgage Loans whose name and facsimile signature appear on a list of servicing officers furnished to the Master Servicer by the Servicers on the Closing Date pursuant to the Servicing Agreements, as such list may from time to time be amended.

Startup Day :  The day designated as such pursuant to Section 10.01(b) hereof.

Stated Principal Balance :  As to any Mortgage Loan and Due Date, the unpaid principal balance of such Mortgage Loan as of such Due Date as specified in the amortization schedule at the time relating thereto (before any adjustment to such amortization schedule by reason of any moratorium or similar waiver or grace period) after giving effect to any previous partial Principal Prepayments and Liquidation Proceeds allocable to principal (other than with respect to any Liquidated Mortgage Loan) and to the payment of principal due on such Due Date and irrespective of any delinquency in payment by the related Mortgagor.

 

Step-Down Conditions : As of the first Distribution Date as to which any decrease in any Senior Prepayment Percentage applies, (i) the aggregate outstanding Stated Principal Balance of all Mortgage Loans 60 days or more Delinquent (including Mortgage Loans in REO, foreclosure or bankruptcy status) (averaged over the preceding six month period), as a percentage of the aggregate of the Class Principal Amounts of the Classes of Subordinate Certificates on such Distribution Date, does not equal or exceed 50% and (ii) cumulative Realized Losses with respect to the Mortgage Loans do not exceed (a) with respect to each Distribution Date from __________ 20__ through __________ 20__, [   ]% of the Original Subordinate Class Principal Amount, (b) with respect to each Distribution Date from __________ 20__ through __________ 20__, [   ]% of the Original Subordinate Class Principal Amount, (c) with respect to each Distribution Date from __________ 20__ through __________ 20__, [   ]% of the Original Subordinate Class Principal Amount, (d) with respect to each Distribution Date from __________ 20__ through __________ 20__, [   ]% of the Original Subordinate Class Principal Amount and (e) with respect to each Distribution Date from and after __________ 20__, [   ]% of the Original Subordinate Class Principal Amount.

Sub Account :  Not applicable.

Subcontractor :  Any vendor, subcontractor or other Person that is not responsible for the overall servicing of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the direction or authority of any Servicer (or a Subservicer of any Servicer), the Master Servicer or the Securities Administrator.

Subordinate Certificate :  Any of the Class B-[   ], Class B-[   ], or Class B-[   ] Certificates.

Subordinate Certificate Writedown Amount :  The amount described in Section 5.03(c).

Subordinate Class Percentage :  As to any Distribution Date and any Class of Subordinate Certificates, a fraction, expressed as a percentage, the numerator of which is the Class Principal Amount of such Class on such date, and the denominator of which is the aggregate of the Class Principal Amounts of all Classes of Subordinate Certificates on such date.

Subordinate Net WAC :  For any Distribution Date, the weighted average of the Pool 1 Net WAC, the Pool 2 Net WAC, the Pool 3 Net WAC, the Pool 4 Net WAC and the Pool 5 Net WAC, in each case weighted on the basis of the relative Pool Subordinate Amounts for Pool 1, Pool 2, Pool 3, Pool 4 and Pool 5, respectively, immediately prior to such Distribution Date.

Subordinate Percentage :  With respect to each Mortgage Pool and any Distribution Date, the difference between 100% and the related Senior Percentage for such Mortgage Pool for  such Distribution Date.

 

 

Subordinate Prepayment Percentage :  With respect to any Distribution Date and for each Mortgage Pool, the difference between 100% and the related Senior Prepayment Percentage for such Mortgage Pool for that Distribution Date.

Subordinate Principal Distribution Amount :  With respect to any Distribution Date and each Mortgage Pool, an amount equal to the sum of:

Subsequent Recovery :  Any amount recovered by a Servicer with respect to a Liquidated Mortgage Loan (after reimbursement of any unreimbursed Advances or expenses of the Servicer) with respect to which a Realized Loss was incurred after the liquidation or disposition of such Mortgage Loan.

Subservicer :  Any Person that (i) services Mortgage Loans on behalf of any Servicer, and (ii) is responsible for the performance (whether directly or through sub-servicers or Subcontractors) of Servicing functions required to be performed under this Agreement, any related Servicing Agreement or any sub-servicing agreement that are identified in Item 1122(d) of Regulation AB.

Substitution Amount :  As defined in the second paragraph of Section 2.04(b).

 

 

Tax Matters Person :  The “tax matters person” as specified in the REMIC Provisions which shall initially be the Holder of the Class LT-R Certificate, as described under Section 10.01( l ).

Trust Fund :  The corpus of the trust created pursuant to this Agreement, consisting of the Mortgage Loans and all interest and principal received thereon after the Cut-off Date (other than Scheduled Payments due on or prior to the Cut-off Date), the Depositor’s rights assigned to the Trustee under the Purchase Agreements and the Servicing Agreements and the Mortgage Loan Purchase and Sale Agreement, the Insurance Policies relating to the Mortgage Loans, all cash, instruments or property held or required to be held in the Collection Accounts, the Distribution Account, property that secured a Mortgage Loan, the pledge, control and guaranty agreements and any Limited Purpose Surety Bond relating to the Additional Collateral Mortgage Loans and the Reserve Fund.

Trustee :  [               ], a national banking association organized and existing under the laws of the United States of America and any Person succeeding the Trustee hereunder, or if any successor trustee or any co-trustee shall be appointed as herein provided, then such successor trustee and such co-trustee, as the case may be.

Trustee Mortgage Files :  With respect to each Mortgage Loan, the Mortgage Documents to be retained in the custody and possession of the Trustee or the Custodian on behalf of the Trustee and any Retained Mortgage File that is delivered to the Custodian or the Trustee pursuant to Section 2.01(a) of this Agreement.

Two Times Test :  As to any Distribution Date, (i) the Aggregate Subordinate Percentage is at least two times the Aggregate Subordinate Percentage as of the Closing Date; (ii) the aggregate outstanding Stated Principal Balances of all Mortgage Loans 60 days or more Delinquent (including Mortgage Loans in REO, foreclosure or bankruptcy status) (averaged over the preceding six month period), as a percentage of the aggregate of the Class Principal Amounts of the Classes of Subordinate Certificates on such Distribution Date, does not equal or exceed [   ]%; and (iii) on or prior to the Distribution Date in __________ 20__, cumulative Realized Losses with respect to the Mortgage Loans do not exceed [   ]% of the aggregate Original Subordinate Class Principal Amount, and thereafter, cumulative Realized Losses with respect to the Mortgage Loans do not exceed [   ]% of the Original Subordinate Class Principal Amount.

UCC :  The Uniform Commercial Code as enacted in the relevant jurisdiction.

Undercollateralized Group :  With respect to any Distribution Date, any Certificate Group with respect to which the aggregate Class Principal Amount of such Certificate Group is greater than the aggregate Stated Principal Balance of the Mortgage Loans in the related Mortgage Pool immediately prior to such Distribution Date.

Underwriter(s) :  Banc of America Securities LLC.

Underwriter’s Exemption :  Prohibited Transaction Exemption (“PTE”) 93-31 (58 Fed. Reg. 28620 (1993)), as most recently amended and restated by PTE 2007-5 (72 Fed. Reg. 13130 (March 20, 2007)) or any substantially similar administrative exemption granted by the U.S. Department of Labor to the Underwriter(s).

 

 

Underwriting Agreement :  The Underwriting Agreement, dated __________ __, 20__, among the Seller, the Depositor and the Underwriter(s).

Uniform Commercial Code :  The Uniform Commercial Code as in effect in any applicable jurisdiction from time to time.

Upper-Tier REMIC :  As described in the Preliminary Statement to this Agreement.

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, [98].00% of all Voting Interests shall be allocated to the Class 1-A1, Class 1-A2, Class 2-A1, Class 2-A2, Class 3-A1, Class 3-A2, Class 4-A1, Class 4-A2, Class 5-A1, Class 5-A2, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates.  Voting Interests shall be allocated among such Certificates based on the product of (i) [98].00% and (ii) the fraction, expressed as a percentage, the numerator of which is the aggregate of the Class Principal Amounts of all Classes then outstanding and the denominator of which is the sum of the then-outstanding Aggregate Stated Principal Balances of all Mortgage Pools.  At all times during the term of this Agreement, [2].00% of all Voting Interests shall be allocated to each of the Class 1-AR and Class 1-XA Certificates.  Voting Interests shall be allocated among such Certificates based on the product of (i) 1% and (ii) the fraction, expressed as a percentage, the numerator of which is the aggregate of the Class Principal Amounts Class then outstanding and the denominator of which is the sum of the then-outstanding Aggregate Stated Principal Balances of all Mortgage Pools.  The Class LT-R Certificate shall not have any voting rights.

Section 1.02      Calculations Respecting Mortgage Loans.

Calculations required to be made pursuant to this Agreement with respect to any Mortgage Loan in the Trust Fund shall be made based upon current information as to the terms of the Mortgage Loans and reports of payments received from the Mortgagor on such Mortgage Loans and payments to be made to the Securities Administrator as supplied to the Securities Administrator by the Master Servicer.  The Securities Administrator shall not be required to recompute, verify or recalculate the information supplied to it by the Master Servicer or any 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 and 2.04, in trust, all the right, title and interest of the Depositor in and to the Trust Fund.  Such conveyance includes, without limitation, (i) the Mortgage Loans, including the right to all payments of principal and interest received on or with respect to the Mortgage Loans after the Cut-off Date (other than Scheduled Payments due on or before such date), and all such payments due after such date but received on or prior to such date and intended by the related Mortgagors to be applied after such date; (ii) all of the Depositor’s right, title and interest in and to all amounts from time to time credited to and the proceeds of the Distribution Account, any Collection Accounts or any Escrow Account established with respect to the Mortgage Loans; (iii) with respect to the Mortgage Loans, to the extent set forth in the related Acknowledgements, the Depositor’s rights under the Purchase Agreements and the Servicing Agreements and all of the Depositor’s rights under Mortgage Loan Purchase and Sale Agreement; (iv) all of the Depositor’s right, title or interest in REO Property and the proceeds thereof; (v) all of the Depositor’s rights under any Insurance Policies related to the Mortgage Loans; and (vi) the Depositor’s security interest in any collateral pledged to secure the Mortgage Loans, including the Mortgaged Properties and any Additional Collateral relating to the Additional Collateral Mortgage Loans, including, but not limited to, the pledge, control and guaranty agreements and any related Limited Purpose Surety Bond to have and to hold, in trust; and the Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Fund, as trustee, in trust, for the benefit and use of the Holders of the Certificates and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, has caused to be executed, authenticated and delivered to or upon the order of the Depositor, in exchange for the Trust Fund, Certificates in the authorized denominations evidencing the entire ownership of the Trust Fund.

The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in the creation or assumption by the Trustee of any obligation of the Depositor, the Seller or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth therein.

Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge that the functions of the Trustee with respect to the custody, acceptance, inspection and release of Mortgage Files, including but not limited to certain insurance policies and documents contemplated by this Agreement, and preparation and delivery of the certifications shall be performed by the Custodian pursuant to the terms and conditions of the Custody Agreement.

 

 

In connection with such transfer and assignment of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Custodian acting on the Trustee’s behalf, the following documents or instruments with respect to each related Mortgage Loan (each, a “Trustee Mortgage File”) so transferred and assigned:

Notwithstanding the foregoing, with respect to Mortgage Loans serviced by                      [                    ], such Servicer shall hold the Retained Mortgage Files in trust for the benefit of the Trustee pursuant to the related Servicing Agreement.  The possession of each Retained Mortgage File held by such Servicer is in a custodial capacity only.  Within 60 days of the occurrence of a Document Transfer Event, such Servicer shall, pursuant to the related Servicing Agreement, deliver or cause to be delivered to and deposited with the Trustee or to the corporate trust services division of the Custodian the Retained Mortgage Files consisting of the following additional items, as applicable: (i) the original mortgage with evidence of recording indicated thereon (or, if such original recorded mortgage has not yet been returned by the recording office, a copy thereof certified to be a true and complete copy of such mortgage sent for recording) and (ii) the policies of title insurance issued with respect to each applicable Mortgage Loan.

 

(b)           The Depositor shall cause Assignments of Mortgage with respect to each Mortgage Loan other than a Cooperative Mortgage Loan to be completed in the form specified in Section 2.01(a)(iii) above within 30 days of the Closing Date for purpose of their recording; provided, however, that such Assignments of Mortgage need not be recorded if, on or prior to the Closing Date, the Depositor delivers, at its own expense, an Opinion of Counsel (which must be Independent counsel) acceptable to the Trustee, the Securities Administrator and the Rating Agencies, to the effect that recording in such states is not required to protect the Trustee’s interest in the related Mortgage Loans.  Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 270 days thereafter except to the extent delays are caused by the applicable recording office), the Depositor at its own expense and with the cooperation of the applicable Servicer, shall cause to be properly recorded by each Servicer in each public recording office where the related Mortgages are recorded each Assignment of Mortgage endorsed in the form described in Section 2.01(a)(iii) above with respect to each such Mortgage Loan.

(c)           In instances where a title insurance policy is required to be delivered to the Trustee or the Custodian on behalf of the Trustee under Sections 2.01(a)(vi) or 2.01(a)(viii)(g) above and is not so delivered, the Depositor will provide a copy of such title insurance policy to the Trustee, or to the Custodian on behalf of the Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.

(d)           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 Custodian on behalf of the Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account pursuant to Section 4.01 have been so deposited.  All original documents that are not delivered to the Trustee or the Custodian on behalf of the Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Trustee and the Certificateholders.

(a)           The Trustee, by execution and delivery hereof, acknowledges receipt by it or by the Custodian on its behalf of the Trustee Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof by the Custodian on behalf of the Trustee in accordance with Section 4(a) of the Custody Agreement (a form of which is attached hereto as Exhibit D).  The Custodian on behalf of the Trustee, will execute and deliver to the Trustee and the Depositor an Initial Trust Receipt and Schedule of Exceptions, on the Closing Date in the forms required by the Custody Agreement.

(b)           Within 270 days after the Closing Date, the Custodian on behalf of the Trustee, will, for the benefit of Holders of the Certificates, review each related Trustee Mortgage File to ascertain that all required documents set forth in Section 2.01 have been received and appear on their face to conform with the requirements set forth in Section 4A and 4B of the Custody Agreement.

 

(c)           Nothing in this Agreement shall be construed to constitute an assumption by the Trust Fund, the Trustee, the Custodian or the Certificateholders of any unsatisfied duty, claim or other liability on any Mortgage Loan or to any Mortgagor.

(d)           Each of the parties hereto acknowledges that the Custodian shall perform the applicable review of the related Mortgage Loans and respective certifications as provided in the Custody Agreement.

(e)           Upon execution of this Agreement, the Depositor hereby delivers to the Trustee and the Trustee acknowledges receipt of the Acknowledgements, together with the related Purchase Agreements, Servicing Agreements and the Mortgage Loan Purchase and Sale Agreement.

Section 2.03      Representations and Warranties of the Depositor.  

(a)           The Depositor hereby represents and warrants to the Trustee, for the benefit of the Certificateholders, and to the Master Servicer and the Securities Administrator as of the Closing Date or such other date as is specified, that:

 

 

The foregoing representations made in this Section 2.03 shall survive the termination of this Agreement and shall not be waived by any party hereto.

Section 2.04      Discovery of Breach; Repurchase or Substitution of Mortgage Loans.

(a)           Pursuant to Sections 2(b) and 2(d) of the Mortgage Loan Purchase and Sale Agreement, the Seller has made or assigned certain representations and warranties as to the characteristics of the Mortgage Loans as of the Closing Date, including representations and warranties that no Mortgage Loan is a “high-cost home loan” as defined under any local, state, or federal laws, and each of the Depositor and the Trustee intend that the Mortgage Loans (including any Replacement Mortgage Loans) included in the Trust Fund satisfy such representations and warranties.  The Depositor, for the benefit of the Trustee and the Certificateholders hereby assigns any such rights against the Seller to the Trustee and the Seller acknowledges that it has agreed to comply with the provisions of this Section 2.04 in respect of a breach of any of such representations and warranties.

It is understood and agreed that such representations and warranties set forth in Section 2(b) and 2(d) of the Mortgage Loan Purchase and Sale Agreement shall survive delivery of the Trustee Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.  Upon (i) discovery or receipt by the Depositor of written notice of any materially defective document in a related Trustee Mortgage File or, following the date of delivery to the Trustee of the Custodian’s Final Trust Receipt as required under the Custody Agreement, that a document is missing from a related Trustee Mortgage File, or (ii) discovery by the Depositor or the Seller of the breach by the Seller [or designated originator] of any representation or warranty under the Mortgage Loan Purchase and Sale Agreement made by the Depositor or the Seller [or the designated originator] in respect of any Mortgage Loan, which materially adversely affects the value of that Mortgage Loan or the interest therein of the Certificateholders (a “Defective Mortgage Loan”) (each of such parties hereby agreeing to give written notice thereof to the Trustee and the other of such parties), the Trustee, or its designee, shall promptly notify the Depositor in writing of such defective or missing document or breach and request that the Depositor deliver such missing document or cure or cause the cure of such defect or breach within 90 days from the date that the Depositor discovered or was notified of such missing document, defect or breach, and if the Depositor does not deliver such missing document or cure or cause the cure of such defect or breach in all material respects during such period, the Trustee shall enforce the Seller’s obligation under the Mortgage Loan Purchase and Sale Agreement and cause the Seller [or designated originator] to repurchase that Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the Determination Date following the expiration of such 90-day period (subject to Section 2.04(b) below); provided, however , that, in connection with any such breach that could not reasonably have been cured within such 90-day period, if the Seller shall have commenced to cure such breach within such 90-day period, the Seller shall be permitted to proceed thereafter diligently and expeditiously to cure or cause the cure the same within an additional 90-day period.  The Purchase Price for the repurchased Mortgage Loan shall be deposited in the related Distribution Account, and the Trustee, or its designee, upon receipt of written certification from the Securities Administrator of such deposit, shall release to the Seller, the related Trustee Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranties, as either party shall furnish to it and as shall be necessary to vest in such party any Mortgage Loan released pursuant hereto and the Trustee, or its designee, shall have no further responsibility with regard to such Trustee Mortgage File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose).  In lieu of repurchasing any such Mortgage Loan as provided above, either party may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Replacement Mortgage Loans in the manner and subject to the limitations set forth in Section 2.04(b) below.  It is understood and agreed that the obligation of the Seller to cure, to cause the cure or to repurchase [or cause the repurchase by the designated originator] (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the such party respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.

 

(b)           Any substitution of Replacement Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.04(a) above must be effected prior to the last Business Day that is within two years after the Closing Date.  As to any Deleted Mortgage Loan for which the Seller substitutes a Replacement Mortgage Loan or Loans, such substitution shall be effected by delivering to the Custodian, on behalf of the Trustee, for such Replacement Mortgage Loan or Loans, the related Mortgage Note, the related Mortgage, the related Assignment of Mortgage to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, together with an Officers’ Certificate stating that each such Replacement Mortgage Loan satisfies the definition thereof and specifying the Substitution Amount (as described below), if any, in connection with such substitution.  The Custodian shall acknowledge receipt for such Replacement Mortgage Loan and, within 45 days thereafter, shall review such Mortgage Documents as specified in the Custody Agreement and deliver to the Trustee and the Depositor, with respect to such Replacement Mortgage Loans, a certification substantially in the form of a revised Trust Receipt, with any exceptions noted thereon.  Within one year of the date of substitution, the Custodian shall deliver to the Trustee and the Depositor a certification substantially in the form of a revised Final Trust Receipt, with respect to such Replacement Mortgage Loans, with any exceptions noted thereon.  Monthly Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be included as part of the Trust Fund and shall be retained by the Seller.  For the month of substitution, distributions to the Certificateholders shall reflect the collections and recoveries in respect of such Deleted Mortgage in the Due Period preceding the month of substitution and the Seller shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan.  Upon such substitution, such Replacement Mortgage Loan shall constitute part of the Trust Fund and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase and Sale Agreement, including all representations and warranties thereof included in the Mortgage Loan Purchase and Sale Agreement, in each case as of the date of substitution.

 

 

For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer shall determine the excess (each, a “Substitution Amount”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate Stated Principal Balance of the Replacement Mortgage Loans replacing such Deleted Mortgage Loans, together with one month’s interest on such excess amount at the applicable Net Mortgage Rate.  On the date of such substitution, the Seller, as applicable, shall deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the related Substitution Amount, if any, and the Custodian, on behalf of the Trustee, upon receipt of the related Replacement Mortgage Loan or Loans and certification by the Servicer of such deposit, shall release to the Seller the related Trustee Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Seller shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto.

In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the Securities Administrator an Opinion of Counsel to the effect that such substitution (either specifically or as a class of transactions) shall not cause an Adverse REMIC Event.  If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.

(c)           Upon discovery by the Seller, the Depositor or the Trustee that any Mortgage Loan does not constitute a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties.  In connection therewith, the applicable party shall repurchase or, subject to the limitations set forth in Section 2.04(b), substitute one or more Replacement Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan.  Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.04(a) above.  The Trustee shall re-convey to the Seller the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

(d)           The Seller indemnifies and holds the Trust Fund, the Master Servicer, the Securities Administrator, the Trustee, the Depositor and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Master Servicer, the Securities Administrator, the Depositor and any Certificateholder may sustain in connection with any actions of such party relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.04 and the Mortgage Loan Purchase and Sale Agreement, to the extent that any such action causes an Adverse REMIC Event.

Section 2.05      [Reserved.]

Section 2.06      Grant Clause.

(a)           It is intended that the conveyance of the Depositor’s right, title and interest in and to property constituting the Trust Fund pursuant to this Agreement shall constitute, and shall be construed as, a sale of such property and not a grant of a security interest to secure a loan.

 

 

However, if such conveyance is deemed to be in respect of a loan, it is intended that:  (1) the rights and obligations of the parties shall be established pursuant to the terms of this Agreement; (2) the Depositor hereby grants to the Trustee for the benefit of the Holders of the Certificates a first priority security interest 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 (3) 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.

(b)           The Depositor shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement.  The Depositor will, at its own expense, make all initial filings on or about the Closing Date and shall forward a copy of such filing or filings to the Trustee.  Without limiting the generality of the foregoing, the Depositor shall prepare and forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original filings necessary under the relevant UCC to perfect the Trustee’s security interest in or lien on the Mortgage Loans, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of the Seller, the Depositor or the Trustee, (2) any change of location of the place of business or the chief executive office of the Seller or the Depositor, (3) any transfer of any interest of the Seller or the Depositor in any Mortgage Loan or (4) any change under the relevant UCC or other applicable laws.  Neither of the Seller nor the Depositor shall organize under the law of any jurisdiction other than the State under which each is organized as of the Closing Date (whether changing its jurisdiction of organization or organizing under an additional jurisdiction) without giving 30 days prior written notice of such action to its immediate and intermediate transferee, including the Trustee.  Before effecting such change, the Seller or the Depositor proposing to change its jurisdiction of organization shall prepare and file in the appropriate filing office any financing statements or other statements necessary to continue the perfection of the interests of its immediate and mediate transferees, including the Trustee, in the Mortgage Loans.  In connection with the transactions contemplated by this Agreement, each of the Seller and the Depositor authorizes its immediate or mediate transferee to file in any filing office any initial financing statements, any amendments to financing statements, any continuation statements, or any other statements or filings described in this paragraph (b).

On or before March 1 of each calendar year, beginning in 20__, the Depositor shall furnish to the Trustee and the Securities Administrator an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to any filings necessary to maintain the effectiveness of any original filings necessary under the relevant UCC to perfect the Trustee’s security interest in or lien on the Mortgage Loans, or stating that, in the opinion of such counsel, no such action is necessary to maintain such lien and security interest.  Such Opinion of Counsel shall also describe the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain such lien and security interest until March 1 in the following calendar year.

 

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 Certificates will be evidenced by one or more certificates, beneficial ownership of which will be held in the minimum denominations in Certificate Principal Amount or Notional Amount specified in the Preliminary Statement to this Agreement and in integral multiples of $1 in excess thereof, or in the Percentage Interests specified in the Preliminary Statement to this Agreement, as applicable.

(b)           The Certificates shall be executed by manual or facsimile signature on behalf of the Trustee by an authorized officer of the Securities Administrator.  Each Certificate shall, on original issue, be authenticated by the Authenticating Agent upon the order of the Depositor upon receipt by the Trustee or its Custodian of the Trustee 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 Authenticating Agent, 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 Trustee to the Authenticating Agent for authentication and the Authenticating Agent shall authenticate and deliver such Certificates as in this Agreement provided and not otherwise.

(c)           The Class B-4, Class B-5, Class B-6 and Class LT-R Certificates offered and sold in reliance on the exemption from registration under Rule 144A under the Securities Act shall be issued initially 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”).

Section 3.02      Registration. 

The Securities Administrator is hereby appointed, and the Securities Administrator hereby accepts its appointment as, initial Certificate Registrar in respect of the Certificates and shall maintain books for the registration and for the transfer of Certificates (the “Certificate Register”).  The Trustee may appoint a bank or trust company to act as successor Certificate Registrar.  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 Securities Administrator and the appointment of a successor Securities Administrator.  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 Authenticating Agent shall authenticate and deliver to the transferee, one or more new Certificates of the same Class and evidencing, in the aggregate, the same aggregate Certificate Principal Amount (or Notional 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.

(b)           A Certificate may be exchanged by the Holder thereof for any number of new Certificates of the same Class, in authorized denominations, representing in the aggregate the same Certificate Principal Amount (or Notional 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 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, 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.

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:

(d)           The Certificate Registrar shall not register the transfer of any Class LT-R Certificate to RWT Holdings, Inc., Sequoia Residential Funding, Inc., Redwood Mortgage Funding, Inc., Redwood Trust, Inc. (each a “Restricted Holder”) or any successor in interest thereto.

(e)           (i)   No transfer of an ERISA-Restricted Certificate in the form of a Definitive Certificate shall be made to any Person or shall be effective unless the Certificate Registrar, on behalf of the Trustee, has received (A) a certificate substantially in the form of Exhibit J hereto (or Exhibit B, in the case of a Residual Certificate) from such transferee or (B) an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that the purchase and holding of such a Certificate will not constitute or result in prohibited transactions under Title I of ERISA or Section 4975 of the Code and will not subject the Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the Securities Administrator to any obligation in addition to those undertaken in this Agreement; provided, however, that the Certificate Registrar will not require such certificate or opinion in the event that, as a result of a change of law or otherwise, counsel satisfactory to the Certificate Registrar has rendered an opinion to the effect that the purchase and holding of an ERISA-Restricted Certificate by a Plan or a Person that is purchasing or holding such a Certificate with the assets of a Plan will not constitute or result in a prohibited transaction under Title I of ERISA or Section 4975 of the Code.  Each Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate shall be deemed to have made the representations set forth in Exhibit J.  The preparation and delivery of the certificate and opinions referred to above shall not be an expense of the Trust Fund, the Certificate Registrar, the Trustee,  the Master Servicer, the Depositor or the Securities Administrator.

Notwithstanding the foregoing, no opinion or certificate shall be required for the initial issuance of the ERISA-Restricted Certificates.  The Certificate Registrar shall have no obligation to monitor transfers of Book-Entry Certificates that are ERISA-Restricted Certificates and shall have no liability for transfers of such Certificates in violation of the transfer restrictions.  The Certificate Registrar shall be under no liability to any Person for any registration of transfer of any ERISA-Restricted Certificate that is in fact not permitted by this Section 3.03(e) and none of the Securities Administrator, the Trustee or the Paying Agent shall 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 Certificate Registrar in accordance with the foregoing requirements.  The Securities Administrator, on behalf of the Trustee, shall be entitled, but not obligated, to recover from any Holder of any ERISA-Restricted Certificate that was in fact a Plan or a Person acting on behalf of a Plan any payments made on such ERISA-Restricted Certificate at and after either such time.  Any such payments so recovered by the Securities Administrator, on behalf of the Trustee, shall be paid and delivered by the Securities Administrator, on behalf of the Trustee, to the last preceding Holder of such Certificate that is not such a Plan or Person acting on behalf of a Plan.

 

(ii) No transfer of an ERISA-Restricted Purchase Option Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the transferee of such ERISA-Restricted Purchase Option Certificate, substantially in the form set forth in Exhibit J hereto, to the effect that either (i) such transferee is neither a Plan nor a Person acting on behalf of any such Plan or using the assets of any such Plan to effect such transfer or (ii) the acquisition and holding of the ERISA-Restricted Purchase Option Certificate are eligible for exemptive relief under the statutory exemption for nonfiduciary service providers under Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code, Prohibited Transaction Class Exemption ("PTCE") 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60 or PTCE 96-23 or some other applicable exemption.  Notwithstanding anything else to the contrary herein, any purported transfer of an ERISA-Restricted Purchase Option Certificate to or on behalf of a Plan without the delivery to the Certificate Registrar of a representation letter as described above shall be void and of no effect.  If the ERISA-Restricted Purchase Option Certificate is a Book-Entry Certificate, the transferee will be deemed to have made a representation as provided in clause (i) or (ii) of this paragraph, as applicable.

If any ERISA-Restricted Purchase Option Certificate, or any interest therein, is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that ERISA-Restricted Purchase Option Certificate, retroactive to the date of transfer to the purported beneficial owner.  Any purported beneficial owner whose acquisition or holding of an ERISA-Restricted Purchase Option Certificate, or interest therein, was effected in violation of the provisions of the preceding paragraph shall indemnify to the extent permitted by law and hold harmless the Depositor and the Certificate Registrar from and against any and all liabilities, claims, costs or expenses incurred by such parties as a result of such acquisition or holding.

To the extent permitted under applicable law (including, but not limited to, ERISA), the Certificate Registrar shall be under no liability to any Person for any registration of transfer of any ERISA-Restricted Purchase Option Certificate that is in fact not permitted by this Section 3.03(e)(ii) or for making any payments due on such ERISA-Restricted Purchase Option Certificate to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the transfer was registered by the Certificate Registrar in accordance with the foregoing requirements.

(f)           As a condition of the registration of transfer or exchange of any Certificate, the Certificate Registrar may require the certified taxpayer identification number of the owner of the Certificate and the payment of a sum sufficient to cover any tax or other governmental charge imposed in connection therewith; provided, however, that the Certificate Registrar shall have no obligation to require such payment or to determine whether or not any such tax or charge may be applicable.  No service charge shall be made to the Certificateholder for any registration, transfer or exchange of a Certificate.

(g)           Notwithstanding anything to the contrary contained herein, no Residual Certificate may be owned, pledged or transferred, directly or indirectly, by or to (i) a Disqualified Organization or (ii) an individual, corporation or partnership or other person unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Registrar 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”).

 

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 Certificate Registrar, on behalf of the Trustee, an affidavit in substantially the form attached hereto as Exhibit B 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 Certificate Registrar an affidavit in substantially the form attached hereto as Exhibit C.  In addition, 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 Certificate Registrar, that such proposed transferee or, if the proposed transferee is an agent or nominee, the proposed beneficial owner, is not a Disqualified Organization, agent or nominee thereof, or a Non-permitted Foreign Holder.  Notwithstanding the registration in the Certificate Register of any transfer, sale, or other disposition of a Residual Certificate to a Disqualified Organization, an agent or nominee thereof, or Non-permitted Foreign Holder, such registration shall be deemed to be of no legal force or effect whatsoever and such Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Residual Certificate.  The Depositor, the Certificate Registrar and the Trustee shall be under no 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 Paying Agent making 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 this Agreement, so long as the transfer was effected in accordance with this Section 3.03(g), unless 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, or an agent or nominee thereof, or Non-permitted Foreign Holder.  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 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(g), then upon receipt of written notice to the Certificate Registrar that the registration of transfer of such Residual Certificate was not in fact permitted by this Section 3.03(g), the last preceding Permitted Transferee shall be restored to all rights as Holder thereof retroactive to the date of such registration of transfer of such Residual Certificate.  The Depositor, the Certificate Registrar, the Securities Administrator and the Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.03(g), or for the Paying Agent 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(g).

 

(h)           Each Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted Certificate or Residual Certificate, or an interest therein, by such Holder’s or Owner’s acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this section.

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.

Section 3.05      Replacement of Certificates. 

If (i) any Certificate is mutilated and is surrendered to the Certificate Registrar or (ii) the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate, and there is delivered to the Certificate Registrar 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, the Trustee or the Certificate Registrar that such destroyed, lost or stolen Certificate has been acquired by a protected purchaser, the Trustee shall execute and the 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, the Depositor, the Certificate Registrar or the Securities Administrator may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee, the Depositor, the Certificate Registrar or the Securities Administrator) 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.

If after the delivery of such new Certificate, a protected purchaser of the original Certificate in lieu of which such new Certificate was issued presents for payment such original Certificate, the Depositor, the Securities Administrator, the Certificate Registrar and the Trustee or any agent shall be entitled to recover such new Certificate from the Person to whom it was delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expenses incurred by the Depositor, the Certificate Registrar, the Securities Administrator, the Trustee or any agent in connection therewith.

 

 

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, the Paying Agent and any agent of any of them shall 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 none of the Depositor, the Master