STANDARD TERMS TO MASTER SERVICING AND TRUST AGREEMENT
STANDARD
TERMS
TO
MASTER
SERVICING
AND
TRUST
AGREEMENT
GS
Mortgage Securities Corp.
Depositor
Mortgage
Pass-Through Certificates, Series 2007-AR2
May
2007 Edition
TABLE
OF CONTENTS
Page
|
STANDARD
TERMS
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1
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ARTICLE
I DEFINITIONS
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1
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Section
1.01
|
Defined
Terms.
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1
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ARTICLE
II MORTGAGE LOAN FILES
|
22
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Section
2.01
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Mortgage
Loan Files.
|
22
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Section
2.02
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Acceptance
by the Trustee.
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23
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Section
2.03
|
Purchase
of Mortgage Loans by a Servicer, a Seller, GSMC or the
Depositor.
|
26
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|
Section
2.04
|
Representations
and Warranties of the Depositor.
|
30
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ARTICLE
III ADMINISTRATION OF THE TRUST
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32
|
|
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Section
3.01
|
The
Collection Accounts; the Master Servicer Account; the Distribution
Accounts and the Certificate Account.
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32
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Section
3.02
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Filings
with the Commission.
|
34
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Section
3.03
|
Securities
Administrator to Cooperate; Release of Mortgage Files.
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40
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Section
3.04
|
Amendments
to Servicing Agreement.
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41
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Section
3.05
|
Monthly
Advances by Master Servicer or Trustee.
|
42
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Section
3.06
|
Enforcement
of Servicing Agreement.
|
44
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ARTICLE
IV REPORTING/REMITTING TO CERTIFICATEHOLDERS
|
44
|
|
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Section
4.01
|
Statements
to Certificateholders.
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44
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Section
4.02
|
Remittance
Reports and other Reports from the Servicers.
|
47
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Section
4.03
|
Compliance
with Withholding Requirements.
|
47
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Section
4.04
|
Reports
of Certificate Balances to The Depository Trust Company.
|
48
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Section
4.05
|
Preparation
of Regulatory Reports.
|
48
|
|
Section
4.06
|
Management
and Disposition of REO Property.
|
48
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ARTICLE
V THE INTERESTS AND THE SECURITIES
|
49
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|
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Section
5.01
|
REMIC
Interests.
|
49
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Section
5.02
|
The
Certificates.
|
49
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Section
5.03
|
Book-Entry
Securities.
|
50
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|
Section
5.04
|
Registration
of Transfer and Exchange of Certificates.
|
51
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Section
5.05
|
Restrictions
on Transfer.
|
52
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|
Section
5.06
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
57
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|
Section
5.07
|
Persons
Deemed Owners.
|
58
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|
Section
5.08
|
Appointment
of Paying Agent.
|
58
|
|
ARTICLE
VI THE DEPOSITOR
|
58
|
|
|
Section
6.01
|
Liability
of the Depositor.
|
58
|
|
Section
6.02
|
Merger
or Consolidation of the Depositor.
|
58
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ARTICLE
VII TERMINATION OF SERVICING ARRANGEMENTS
|
59
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|
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Section
7.01
|
Termination
and Substitution of Servicer.
|
59
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Section
7.02
|
Notification
to Certificateholders.
|
61
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ARTICLE
VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER
|
61
|
|
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Section
8.01
|
Duties
of the Master Servicer; Enforcement of Servicer’s and Master Servicer’s
Obligations.
|
61
|
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Section
8.02
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
64
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Section
8.03
|
Representations
and Warranties of the Master Servicer.
|
65
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Section
8.04
|
Master
Servicer Events of Default.
|
67
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Section
8.05
|
Waiver
of Default.
|
69
|
|
Section
8.06
|
Successor
to the Master Servicer.
|
69
|
|
Section
8.07
|
Fees
and Other Amounts Payable to the Master Servicer.
|
70
|
|
Section
8.08
|
Merger
or Consolidation.
|
70
|
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Section
8.09
|
Resignation
and Removal of Master Servicer.
|
71
|
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Section
8.10
|
Assignment
or Delegation of Duties by the Master Servicer.
|
71
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Section
8.11
|
Limitation
on Liability of the Master Servicer and Others.
|
71
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Section
8.12
|
Indemnification;
Third-Party Claims.
|
72
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ARTICLE
IX CONCERNING THE TRUSTEE
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73
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|
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Section
9.01
|
Duties
of Trustee.
|
73
|
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Section
9.02
|
Certain
Matters Affecting the Trustee.
|
74
|
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Section
9.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
77
|
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Section
9.04
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Trustee
May Own Certificates.
|
77
|
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Section
9.05
|
Trustee’s
Fees and Expenses and Indemnification.
|
77
|
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Section
9.06
|
Eligibility
Requirements for Trustee.
|
78
|
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Section
9.07
|
Resignation
and Removal of the Trustee.
|
78
|
|
Section
9.08
|
Successor
Trustee.
|
79
|
|
Section
9.09
|
Merger
or Consolidation of Trustee.
|
79
|
|
Section
9.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
79
|
|
Section
9.11
|
Appointment
of Custodians.
|
80
|
|
Section
9.12
|
Appointment
of Officer or Agent.
|
81
|
|
Section
9.13
|
Representation
and Warranties of the Trustee.
|
81
|
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ARTICLE
X TERMINATION OF TRUST
|
82
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|
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Section
10.01
|
Qualified
Liquidation.
|
82
|
|
Section
10.02
|
Termination.
|
82
|
|
Section
10.03
|
Procedure
for Termination.
|
83
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Section
10.04
|
Additional
Termination Requirements.
|
84
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ARTICLE
XI CONCERNING THE SECURITIES ADMINISTRATOR
|
85
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Section
11.01
|
Certain
Matters Affecting the Securities Administrator.
|
85
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Section
11.02
|
Securities
Administrator Not Liable for Certificates or Mortgage
Loans.
|
89
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Section
11.03
|
Securities
Administrator May Own Certificates.
|
90
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Section
11.04
|
Securities
Administrator’s Fees, Expenses and Indemnification.
|
90
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Section
11.05
|
Resignation
and Removal of the Securities Administrator.
|
91
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Section
11.06
|
Successor
Securities Administrator.
|
92
|
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Section
11.07
|
Representations
and Warranties of the Securities Administrator.
|
92
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Section
11.08
|
Eligibility
Requirements for the Securities Administrator.
|
93
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ARTICLE
XII REMIC TAX PROVISIONS
|
94
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Section
12.01
|
REMIC
Administration.
|
94
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Section
12.02
|
Prohibited
Activities.
|
96
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ARTICLE
XIII MISCELLANEOUS PROVISIONS
|
97
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Section
13.01
|
Amendment
of Trust Agreement.
|
97
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Section
13.02
|
Recordation
of Agreement; Counterparts.
|
98
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Section
13.03
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Limitation
on Rights of Certificateholders.
|
99
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Section
13.04
|
Optional
Purchase of Delinquent Mortgage Loans.
|
99
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ii
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Section
13.05
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Notices.
|
100
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Section
13.06
|
Severability
of Provision.
|
100
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Section
13.07
|
Sale
of Mortgage Loans.
|
100
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Section
13.08
|
Notice
to Rating Agencies
|
101
|
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Section
13.09
|
Custodians’
Limitation of Liability.
|
102
|
|
Exhibit A
|
Form
of Trust Receipt
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Exhibit B
|
Form
of Final Certification
|
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Exhibit C-1
|
Form
of Rule 144A Agreement - QIB Certification
|
|
Exhibit
C-2
|
Form
of Transfer Certificate for Transfer from Rule 144A Certificate
to
Regulation S Global Security
|
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Exhibit
C-3
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Rule 144A Certificate
|
|
Exhibit D
|
Form
of Transferee Agreement
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Exhibit E
|
Form
of Benefit Plan Affidavit
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Exhibit F
|
Form
of Residual Transferee Agreement
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Exhibit G-1
|
Form
of Non-U.S. Person Affidavit
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Exhibit G-2
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Form
of U.S. Person Affidavit
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Exhibit H
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Form
of Securities Administrator Certification
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Exhibit I
|
Form
of Master Servicer Certification
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Exhibit
J
|
Relevant
Servicing Criteria
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Exhibit
K
|
Form
8-K Disclosure Information
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Exhibit
L
|
Additional
Form 10-D Disclosure
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Exhibit
M
|
Additional
Form 10-K Disclosure
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Schedule
I
|
Bond
Level Report
|
|
Schedule
II
|
Loan
Level Report
|
|
Schedule
III
|
Remittance
Report
|
iii
RECITALS
GS
Mortgage Securities Corp. (the “Depositor”),
a
trustee (together with its successors and assigns, the “Trustee”),
a
securities administrator (together with its successors and assigns, the
“Securities
Administrator”),
custodians (together with their successors and assigns, the “Custodians”),
and a
master servicer (together with its successors and assigns, the “Master
Servicer”)
identified in the Trust Agreement (as defined below) have entered into the
Trust
Agreement that provides for the issuance of mortgage pass-through certificates
(the “Certificates”)
that
in the aggregate evidence the entire interest in Mortgage Loans or certificates
or securities evidencing an interest therein and other property owned by
the
Trust created by such Trust Agreement. These Standard Terms are a part of,
and
are incorporated by reference into, the Trust Agreement.
STANDARD
PROVISIONS
NOW,
THEREFORE, in consideration of the mutual promises, covenants, representations,
and warranties made in the Trust Agreement and as hereinafter set forth,
the
Depositor, the Trustee, the Securities Administrator, the Custodians and
the
Master Servicer agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Except
as
otherwise specified herein or in the Trust Agreement or as the context may
otherwise require, whenever used in these Standard Terms, the following words
and phrases shall have the meanings specified in this Article. Capitalized
words
and phrases used herein but not defined herein or in the Trust Agreement
shall,
when applied to a Trust, have the meanings set forth in the Servicing
Agreement(s) assigned to such Trust as in effect on the date of this Agreement.
In the event of a conflict between the Trust Agreement and these Standard
Terms,
the Trust Agreement shall govern. Unless otherwise specified, all calculations
described herein shall be made on the basis of a 360-day year consisting
of
twelve 30-day months.
“10-K
Filing Deadline”:
As
defined in Section 3.02.
“Accounting
Date”:
With
respect to each Distribution Date, the last day of the month preceding the
month
in which such Distribution Date occurs.
“Additional
Form 10-D Disclosure”:
As
defined in Section 3.02.
“Additional
Form 10-K Disclosure”:
As
defined in Section 3.02.
“Additional
Servicer”:
Each
affiliate of each Servicer that Services any of the Mortgage Loans and each
Person that is not an affiliate of each such Servicer, that Services 10%
or more
of the Mortgage Loans. For the avoidance of doubt, the Master Servicer and
Securities Administrator are Additional Servicers.
“Administrative
Cost Rate”:
Not
applicable.
“Advance”:
The
aggregate amount of the (i) advances made by a Servicer on any Servicer
Remittance Date in respect of delinquent Monthly Payments pursuant to the
applicable Sale and Servicing Agreement, (ii) any advances made by the
Master Servicer (or by the Trustee, as successor Master Servicer, pursuant
to
Section 3.05 in the event the Master Servicer fails to make such advances
as
required) in respect of any such delinquent Monthly Payment pursuant to
Section 3.05 and (iii) amounts necessary to preserve the Trust’s
interest in the Mortgaged Premises or the Mortgage Loans, including without
limitation, property taxes or insurance premiums not paid as required by
the
Mortgagor and advanced by the related Servicer or successor
servicer.
“Affiliate”:
Any
person or entity controlling, controlled by, or under common Control with
the
Depositor, the Trustee, the Securities Administrator, a Custodian, the Master
Servicer or any Servicer. “Control” means the power to direct the management and
policies of a person or entity, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. “Controlling” and
“controlled” shall have meanings correlative to the foregoing.
“Aggregate
Principal Distribution Amount”:
The
amount specified in the Trust Agreement.
“ARM
Loan”:
An
“adjustable rate” Mortgage Loan, the Note Rate of which is subject to periodic
adjustment in accordance with the terms of the Note.
“Assignment
Agreement”:
Any
Assignment, Assumption and Recognition Agreement or Agreements identified
in the
Trust Agreement to which the Depositor is a party.
“Available
Distribution Amount”:
Unless
otherwise provided in the Trust Agreement, on each Distribution Date the
Available Distribution Amount shall equal (i) the sum of the following:
(A) all amounts credited to the Collection Account as of the close of
business on the related Distribution Date, (B) an amount equal to Monthly
Advances made on or before the previous Distribution Date, to the extent
such
Monthly Advance was made from funds on deposit in any related Collection
Account
held for future distribution, (C) all Monthly Advances made with respect
to such Distribution Date (to the extent not included in
clause (B) above) and (D) all amounts deposited into the
Certificate Account to effect a Terminating Purchase in accordance with
Section 10.02 minus
(ii) the sum of (A) any Principal Prepayments (including Liquidation
Proceeds, Insurance Proceeds and Condemnation Proceeds) or Payoffs received
after the related Principal Prepayment Period, (B) Monthly Payments
collected but due on a Due Date or Dates subsequent to the related Due Period
and (C) reinvestment income on amounts deposited in any Collection Account
to the extent included in (i) above.
“Back-Up
Certification”:
As
defined in Section 3.02.
“Bankruptcy
Loss”:
Any
reduction in the total amount owed by a Borrower on a Mortgage Loan occurring
as
a result of a final order of a court in a bankruptcy proceeding.
2
“Beneficial
Owner”:
With
respect to a Book-Entry Security, the Person who is registered as owner of
that
Certificate in the books of the Clearing Agency for that Certificate or in
the
books of a Person maintaining an account with such Clearing Agency.
“Benefit
Plan Affidavit”:
An
affidavit substantially in the form of Exhibit E
hereto.
“Benefit
Plan Opinion”:
An
opinion of counsel satisfactory to the Trustee and the Securities Administrator
(and upon which the Trustee, the Master Servicer, the Securities Administrator
and the Depositor shall be entitled to rely) to the effect that the purchase
or
holding of such Certificate by the prospective transferee will not result
in any
non-exempt prohibited transactions under Section 406 of ERISA or Section
4975 of
the Code and will not subject the Trustee, the Securities Administrator,
the
Master Servicer or the Depositor to any obligation in addition to those
undertaken by such parties in the Trust Agreement, which opinion of counsel
shall not be an expense of the Trust or any of the above parties.
“Bond
Level Reports”:
Shall
mean the reports prepared by the Securities Administrator in substantially
the
form attached as Schedule I hereto.
“Book-Entry
Custodian”:
The
custodian appointed pursuant to Section 5.03(d).
“Book-Entry
Securities”:
The
Classes of Certificates, if any, specified as such in the Trust Agreement
for a
Series.
“Borrower”:
The
individual or individuals obligated to repay a Mortgage Loan.
“Business
Day”:
Any day
that is not (i) a Saturday or Sunday, or (ii) a legal holiday in the
State of New York and the state in which the Corporate Trust Office or the
principal offices of the Securities Administrator, the Master Servicer or
any
Servicer are located, or (iii) a day on which the banking or savings and
loan institutions in the State of New York and the state in which the Corporate
Trust Office or the principal office of the Securities Administrator, the
Master
Servicer or any Servicer is located are authorized or obligated by law or
executive order to be closed.
“Certificate”:
Any
security issued under the Trust Agreement and designated as such.
“Certificate
Account”:
The
account or accounts created and maintained for a Trust pursuant to
Section 3.01 hereof.
“Certificate
Balance”:
With
respect to each Class of Certificates or Interests, as of the close of business
on any Distribution Date, the initial balance of such Class of Certificates
or
Interests set forth in the Trust Agreement reduced by (a) all principal
payments previously distributed to such Class of Certificates or Interests
in
accordance with the Trust Agreement, and (b) all Realized Losses, if any,
previously allocated to such Class of Certificates or Interests pursuant
to the
Trust Agreement.
“Certificate
of Title Insurance”:
A
certificate of title insurance issued pursuant to a master title insurance
policy.
3
“Certificate
Rate”:
With
respect to the Certificates, as to each Distribution Date, the rate specified
as
such in the Trust Agreement.
“Certificate
Register”and
“Certificate
Registrar”:
The
register maintained and the registrar appointed pursuant to Section 5.04
hereof.
“Certificated
Subordinated Certificates”:
The
Classes of Certificates, if any, specified as such in the Trust Agreement
for a
Series.
“Certification
Parties”:
As
defined in Section 3.02.
“Certifying
Person”:
As
defined in Section 3.02.
“Class”:
Collectively, all of the Certificates bearing the same designation.
“Class
B Interests”:
As set
forth in the Trust Agreement.
“Clearing
Agency”:
The
Depository Trust Company, or any successor organization or any other
organization registered as a “clearing agency” pursuant to Section 17A of
the Securities Exchange Act of 1934, as amended, and the regulations of the
Commission thereunder.
“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”:
The date
on which Certificates are issued by a Trust as set forth in the related Trust
Agreement.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Collection
Account”:
The
collection account or accounts identified in or established in connection
with
the Servicing Agreement or Agreements identified in the Trust
Agreement.
“Commission”:
The
United States Securities and Exchange Commission.
“Compensating
Interest Payment”:
With
respect to the Mortgage Loans and any Distribution Date, an amount equal
to the
excess of (x) the aggregate of any Prepayment Interest Shortfalls with respect
to the Mortgage Loans and such Distribution Date over (y) the aggregate of
any
amounts required to be paid by any Servicer in respect of such shortfalls
but
not paid; provided that the aggregate Compensating Interest Payment to be
paid
by the Master Servicer for any Distribution Date shall not exceed the Master
Servicing Fee that would be payable to the Master Servicer in respect of
the
Mortgage Loans and Distribution Date without giving effect to any Compensating
Interest Payment.
“Condemnation
Proceeds”:
All
awards or settlements in respect of a taking of an entire Mortgaged Premises
or
a part thereof by exercise of the power of eminent domain or
condemnation.
4
“Contract
of Insurance Holder”:
Any FHA
approved mortgagee identified as such in the Trust Agreement or any Servicing
Agreement.
“Contractually
Delinquent”:
With
respect to any Mortgage Loan, having one or more uncured delinquencies in
respect of payment at any time during the term of such Mortgage
Loan.
“Controlling
Person”:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
“Corporate
Trust Office”:
The
respective principal corporate trust office of the Trustee or the Securities
Administrator, as applicable, at which at any particular time its corporate
trust business shall be administered.
“Custodian”:
The
Custodian or Custodians identified in the Trust Agreement, which shall hold
all
or a portion of the Trustee Mortgage Loan Files with respect to a
Series.
“Custodial
Agreement”:
The
Master Custodial Agreement or other Custodial Agreements identified in the
Trust
Agreement.
“Cut-off
Date”:
The date
specified as such in the Trust Agreement.
“Defect
Discovery Date”:
With
respect to a Mortgage Loan, the date on which any of the Trustee, the Securities
Administrator, the Master Servicer or any Servicer first discovers a
Qualification Defect affecting the Mortgage Loan.
“Depositor”:
GS
Mortgage Securities Corp., a Delaware corporation, and its
successors.
“Disqualified
Organization”:
Either
(a) the United States, (b) any state or political subdivision thereof,
(c) any foreign government, (d) any international organization,
(e) any agency or instrumentality of any of the foregoing, (f) any
tax-exempt organization (other than a cooperative described in Section 521
of the Code) that is exempt from federal income tax unless such organization
is
subject to tax under the unrelated business taxable income provisions of
the
Code, (g) any organization described in Section 1381(a)(2)(C) of the
Code, or (h) any other entity identified as a disqualified organization by
the REMIC Provisions. A corporation will not be treated as an instrumentality
of
the United States or any state or political subdivision thereof if all of
its
activities are subject to tax and, with the exception of the Federal Home
Loan
Mortgage Corporation, a majority of its board of directors is not selected
by
such governmental unit.
“Distribution
Account”:
An
Eligible Account maintained by the Securities Administrator on behalf of
the
Trustee for the REMIC. Unless otherwise provided in the Trust Agreement,
the
Distribution Account shall be considered an asset of the REMIC.
“Distribution
Date”:
Shall
have the meaning set forth in the Trust Agreement.
“Distribution
Statement”:
As
defined in Section 4.01.
“Due
Date”:
The
first day of a calendar month.
5
“Due
Period”:
With
respect to any Distribution Date, the period commencing on the second day
of the
calendar month preceding the calendar month in which such Distribution Date
occurs and continuing through the first day of the month in which such
Distribution Date occurs.
“Early
Payment Default”:
With
respect to each Mortgage Loan, shall occur if the related Mortgagor fails
to
make its first payment after the Mortgage Loan was purchased from the related
Seller.
“XXXXX”:
The
Commission’s Electronic Data Gathering and Retrieval System.
“Eligible
Account”:
A trust
account (i) maintained
by a depository institution, the long-term unsecured debt obligations are
rated
by the Rating Agency in one of its two highest rating categories at the time
of
any deposit therein, (ii) maintained with the Securities Administrator or
the Trustee and satisfies either clause (i) or (iii) hereof or (iii) an
account otherwise deemed an Eligible Account by the Rating Agencies. If the
definition of Eligible Account is met, any Certificate Account may be maintained
with the Trustee, the Securities Administrator or the Master Servicer or
any of
their respective Affiliates.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“Errors
and Omissions Insurance Policy”:
An
errors and omissions insurance policy to be maintained by the Master Servicer
pursuant to Section 8.02 or a Servicer pursuant to the related Servicing
Agreement.
“Event
of Default”:
With
respect to each Servicer, a Servicer Event of Default and with respect to
the
Master Servicer, a Master Servicer Event of Default.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended.
“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.
“Fidelity
Bond”:
A
fidelity bond to be maintained by the Master Servicer pursuant to Section
8.02
or a Servicer pursuant to the related Servicing Agreement.
“Final
Certification”:
A
certification as to the completeness of each Trustee Mortgage Loan File
substantially in the form of Exhibit B
hereto
provided by a Custodian on or before the first anniversary of the Closing
Date
pursuant to Section 2.02 hereof.
“Fiscal
Year”:
Unless
otherwise provided in the Trust Agreement, the fiscal year of the Trust shall
run from May 1 (or from the Closing Date, in the case of the first fiscal
year)
through the last day of December.
“FNMA”:
The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
6
“Form
8-K Disclosure Information”:
As
defined in Section 3.02.
“Fraud
Losses”:
Losses
on Mortgage Loans resulting from fraud, dishonesty or misrepresentation in
the
origination of such Mortgage Loans.
“GSMC”
or
the“Sponsor”:
Xxxxxxx
Sachs Mortgage Company, and its successors and assigns.
“Holders”or
“Certificateholders”:
The
holders of the Certificates, as shown on the Certificate Register.
“Independent”:
When
used with respect to any specified Person, another Person who (a) is in
fact independent of the Depositor, the Initial Purchaser, the Trustee, the
Securities Administrator, the Master Servicer, each Servicer or GSMC, any
obligor upon the Certificates or any Affiliate of the Depositor, the Initial
Purchaser, the Trustee, the Securities Administrator, the Master Servicer,
each
Servicer or GSMC or such obligor, (b) does not have any direct financial
interest or any material indirect financial interest in the Depositor, the
Initial Purchaser, the Trustee, the Securities Administrator, the Master
Servicer, each Servicer or GSMC or in any such obligor or in an Affiliate
of the
Depositor, the Trustee, the Securities Administrator, the Master Servicer,
each
Servicer or GSMC or such obligor, and (c) is not connected with the
Depositor, the Initial Purchaser, the Trustee, the Securities Administrator,
the
Master Servicer, each Servicer or GSMC or any such obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is provided herein that any Independent Person’s
opinion or certificate shall be furnished to the Trustee or the Securities
Administrator, such Person shall be appointed by the Depositor, the Initial
Purchaser, the Trustee, the Securities Administrator, the Master Servicer,
any
applicable Servicer or GSMC in the exercise of reasonable care by such Person,
as the case may be, and approved by the Securities Administrator, and such
opinion or certificate shall state that the Person executing the same has
read
this definition and that such Person is independent within the meaning
thereof.
“Initial
Certificate Balance”:With
respect to any Certificate or Class of Certificates, the Certificate Balance
of
such Certificate or Class of Certificates as of the Closing Date.
“Initial
Purchaser”:
Xxxxxxx,
Xxxxx & Co.
“Insurance
Proceeds”:Proceeds
of any federal insurance, title policy, hazard policy or other insurance
policy
covering a Mortgage Loan, if any, to the extent such proceeds are not to
be
applied to the restoration of the related Mortgaged Property or released
to the
Mortgagor in accordance with the procedures that the related Servicer would
follow in servicing mortgage loans held for its own account.
“Insurer”:
Any
issuer of an insurance policy relating to the Mortgage Loans or Certificates
of
a Series.
“Interest”:
The
REMIC interests that are established by the Trust for purposes of the REMIC
Provisions. The Interests shall be Regular Interests in, and assets of, the
REMICs specified in the Trust Agreement.
7
“Interest
Rate Cap Counterparty”
Shall
have the meaning set forth in the Trust Agreement.
“LIBOR”:
For any
Interest Accrual Period (other than the initial Interest Accrual Period),
the
offered rate for one-month United States dollar deposits which appears on
Reuters Screen LIBOR01, as reported by Bloomberg Financial Markets Commodities
News, as of 11:00 a.m. (London time) on the LIBOR Determination Date applicable
to such Interest Accrual Period. If such rate does not appear on Reuters
Screen
LIBOR01, the rate for that day will be determined on the basis of the rates
at
which deposits in United States dollars are offered by the Reference Banks
at
approximately 11:00 a.m., London time, on that day to leading banks in the
London interbank market for a period of one month commencing on the first
day of
the relevant Interest Accrual Period. The Securities Administrator will request
the principal London office of each of the Reference Banks to provide a
quotation of its rate to the Securities Administrator. If at least two such
quotations are provided, the rate for that day will be the arithmetic mean
of
the quotations. If fewer than two quotations are provided as requested, the
rate
for that day will be the arithmetic mean of the rates quoted by major banks
in
New York City, selected by the Securities Administrator, at approximately
11:00
a.m., New York City time, on that day for loans in United States dollars
to
leading European banks for a one-month period (commencing on the first day
of
the relevant Interest Accrual Period). If none of such major banks selected
by
the Securities Administrator quotes such rate to the Securities Administrator,
LIBOR for such LIBOR Determination Date will be the rate in effect with respect
to the immediately preceding LIBOR Determination Date.
“LIBOR
Determination Date”:
With
respect to any Interest Accrual Period and any Floating Rate Certificate,
the
second London Business Day prior to the date on which such Interest Accrual
Period commences. Absent manifest error, the Securities Administrator’s
determination of LIBOR will be conclusive.
“Liquidated
Mortgage Loan”:
Any
Mortgage Loan for which the applicable Servicer has determined (and reported
to
the Master Servicer) that it has received all amounts that it expects to
recover
from or on account of such Mortgage Loan, whether from Insurance Proceeds,
Liquidation Proceeds or otherwise.
“Liquidation
Loss”:
With
respect to any Liquidated Mortgage Loan, the excess of (a) the sum of (i)
the
outstanding principal balance of such Mortgage Loan, (ii) all accrued and
unpaid
interest thereon, and (iii) the amount of all Advances and other expenses
incurred with respect to such Mortgage Loan (including expenses of enforcement
and foreclosure) over (b) Liquidation Proceeds realized from such Mortgage
Loan.
“Liquidation
Proceeds”:Amounts,
other than Insurance Proceeds and Condemnation Proceeds, received by the
related
Servicer in connection with the liquidation of a defaulted Mortgage Loan
through
trustee’s sale, foreclosure sale or otherwise, including amounts received
following the disposition of an REO Property pursuant to the applicable
Servicing Agreement less costs and expenses of such foreclosure
sale.
“Loan
Level Report”:Shall
mean the report prepared by the Master Servicer in substantially the form
set
forth in Schedule II hereto.
8
“Loan-to-Value
Ratio”:
For
purposes of the REMIC Provisions, the ratio that results when the Unpaid
Principal Balance of a Mortgage Loan is divided by the fair market value
of the
Mortgaged Premises (or, in the case of a Mortgage Loan that is secured by
a
leasehold interest, the fair market value of the leasehold interest and any
improvements thereon). For purposes of determining that ratio, the fair market
value of the Mortgaged Premises (or leasehold interest, as the case may be)
must
be reduced by (i) the full amount of any lien on the Mortgaged Premises (or
leasehold interest, as the case may be) that is senior to the Mortgage Loan
and
(ii) a pro rata portion of any lien that is in parity with the Mortgage
Loan.
“London
Business Day“:
A day on
which commercial banks in London are open for business (including dealings
in
foreign exchange and foreign currency deposits).
“Lost
Document Affidavit”:
An
affidavit, in recordable form, in which the Seller of a Mortgage Loan
represents, warrants and covenants that: (i) immediately prior to the
transfer of such Mortgage Loan under the related Sale Agreement, such Seller
was
the lawful owner of the Mortgage Loan and the Seller has not canceled, altered,
assigned or hypothecated the mortgage note or the related Mortgage,
(ii) the missing document was not located after a thorough and diligent
search by the Seller, (iii) in the event that the missing document ever
comes into the Seller’s possession, custody or power, the Seller covenants
immediately and without further consideration to surrender such document
to the
respective Custodian, and (iv) that it shall indemnify and hold harmless
the Trust, its successors, and assigns, against any loss, liability, or damage,
including reasonable attorney’s fees, resulting from the unavailability of any
originals of any such documents or of a complete chain of intervening
endorsements, as the case may be.
“Master
Servicer”:
Shall
have the meaning set forth in the recitals hereto.
“Master
Servicer Account”:
An
Eligible Account established by the Master Servicer pursuant to
Section 3.01 hereof.
“Master
Servicer Event of Default”:
Those
events of default described in Section 8.04 hereof.
“Master
Servicer Fee Rate”:
Not
applicable.
“Master
Servicer Remittance Date”:
With
respect to each Distribution Date, shall be a date which occurs two Business
Days prior to such Distribution Date, unless the Securities Administrator
and
Master Servicer are the same person, and then the Distribution
Date.
“Master
Servicing Fee”:
Shall
have the meaning set forth in the Trust Agreement.
“Modification
Loss”:
A
decrease in the total payments due from a Borrower as a result of a modification
of such Mortgage Loans following a default or reasonably expected default
thereon. If a Modification Loss results in a decrease in the Note Rate of
a
Mortgage Loan, such Modification Loss shall be treated as occurring on each
Due
Date to the extent of such decrease.
“Month
End Interest Shortfall”:
For any
Distribution Date, the aggregate Prepayment Interest Shortfall Amount for
the
Mortgage Loans, to the extent not paid out of the Servicer’s Servicing Fee
pursuant to the applicable Servicing Agreement.
9
“Monthly
Advance”:
The
aggregate amount of the (i) advances made by a Servicer on any Servicer
Remittance Date in respect of delinquent Monthly Payments pursuant to the
applicable Servicing Agreement and (ii) any advances made by the Master
Servicer (or the Trustee, as successor Master Servicer, pursuant to Section
3.05
in the event the Master Servicer fails to make such advances as required)
in
respect of any such delinquent Monthly Payment pursuant to
Section 3.05.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal
thereof
and interest thereon due in any month under the terms thereof.
“Mortgage
Loan”:
The
mortgage loans sold by the Depositor to the Trust as listed on the Mortgage
Loan
Schedule to the Trust Agreement. Unless the context indicates otherwise the
term
“Mortgage Loan” includes any REO Property held by the Trust.
“Mortgage
Loan Schedule”:
The list
of Mortgage Loans sold by the Depositor to the Trust, which Schedule is attached
to the Trust Agreement and to the applicable Custodial Agreement, and which
shall set forth for each Mortgage Loan the following information:
(a)
the
Originator’s loan number;
(b)
the
Borrower’s name;
(c)
the
original principal balance;
(d)
the
Scheduled Principal Balance as of the close of business on the Cut off
Date;
(e)
the
maturity date of the mortgage loan; and
(f)
the
mortgage loan interest rate;
together
with such additional information as may be reasonably requested by the
Securities Administrator or the Master Servicer.
“Mortgaged
Premises”:
The real
property securing repayment of the debt evidenced by a Note.
“Mortgagor”:
Borrower.
“Net
Rate”:
Unless
otherwise provided in the Trust Agreement, with respect to each Mortgage
Loan,
the Note Rate of that Mortgage Loan less the Administrative Cost Rate applicable
thereto.
“Non-U.S.
Person”:
A
foreign person within the meaning of Treasury Regulation
Section 1.860G-3(a)(1) (i.e.,
a
person other than (i) a citizen or resident of the United States,
(ii) a corporation or partnership that is organized under the laws of the
United States or any jurisdiction thereof or therein, (iii) an estate that
is subject to United States federal income tax regardless of the source of
its
income or (iv) a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust and one
or
more United States Persons have the authority to control all substantial
decisions of the trust) who would be subject to United States income tax
withholding pursuant to Section 1441 or 1442 of the Code on income derived
from the Residual Certificates.
10
“Non-U.S.
Person Affidavit”:
An
affidavit substantially in the form of Exhibit G-1
hereto.
“Note”:
A
manually executed written instrument evidencing the Borrower’s promise to repay
a stated sum of money, plus
interest, to the holder of the Note by a specific date according to a schedule
of principal and interest payments.
“Note
Rate”:
The rate
of interest borne by each Note according to its terms.
“Opinion
of Counsel”:
A
written opinion of counsel, who may be counsel for the Depositor or a Servicer,
acceptable to the Trustee, the Securities Administrator, the Master Servicer
and
the Servicer, as applicable. An Opinion of Counsel relating to tax matters
must
be an opinion of Independent counsel.
“Originator”:
Any
other originator contemplated by Item 1110 (§ 229.1110) of Regulation
AB.
“Paying
Agent”:
The
paying agent appointed pursuant to Section 5.08 hereof.
“Payoff”:
Any
payment or other recovery of principal on a Mortgage Loan equal to the Unpaid
Principal Balance of such Mortgage Loan, received in advance of the last
scheduled Due Date, including any prepayment penalty or premium thereon,
which
is accompanied by an amount of interest representing scheduled interest from
the
Due Date interest was last paid by the Mortgagor to the date of such
prepayment.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Certificate to which principal is assigned as of the Closing
Date, the portion of the Class evidenced by such Certificate, expressed as
a
percentage, the numerator of which is the initial Certificate Balance of
such
Certificate and the denominator of which is the aggregate Certificate Balance
of
all of the Certificates of such Class as of the Closing Date. With respect
to
any Certificate to which a principal balance is not assigned as of the Closing
Date, the portion of the Class evidenced by such Certificate, expressed as
a
percentage, as stated on the face of such Certificate.
“Permitted
Investments”:
Permitted Investments shall consist of the following:
(i)
direct obligations of, or obligations fully guaranteed as to principal and
interest by, the United States or any agency or instrumentality thereof,
provided
such
obligations are backed by the full faith and credit of the United
States;
(ii)
repurchase obligations (the collateral for which is held by a third party,
the
Trustee or the Securities Administrator, or any of their respective affiliates)
with respect to any security described in clause (i) above, provided
that the
long-term or short-term unsecured debt obligations of the party agreeing
to
repurchase such obligations are at the time rated by each Rating Agency in
its
highest long-term unsecured debt rating categories;
11
(iii)
certificates of deposit, time deposits and bankers’ acceptances of any bank or
trust company (including the Trustee or the Securities Administrator or an
affiliate of either) incorporated under the laws of the United States or
any
state, provided
that the
long-term unsecured debt obligations of such bank or trust company at the
date
of acquisition thereof have been rated by each Rating Agency in one of its
two
highest long-term unsecured debt rating categories;
(iv)
commercial paper (having original maturities of not more than 270 days) of
any
corporation (including an affiliate of the Trustee or the Securities
Administrator) incorporated under the laws of the United States or any state
thereof which on the date of acquisition has been rated by each Rating Agency
in
its highest short-term unsecured debt rating available (i.e.,
“P-1”
by Xxxxx’x Investors Service, Inc., “A-1+” by Standard & Poor’s Ratings
Services and “F1+” by Fitch, if rated by such rating agency);
(v)
money
market funds administered by the Trustee or the Securities Administrator
or any
of their respective affiliates provided that such money market funds are
rated
by each Rating Agency (i) in its highest short-term unsecured debt rating
category available (i.e., “P-1” by Xxxxx’x Investors Service, Inc. “A-1+” by
Standard & Poor’s Ratings Services and “F-1+” by Fitch, Inc.) or
(ii) in one of its two highest long-term unsecured debt rating categories;
and
(vi)
any
other demand, money market or time deposit or obligation, or interest-bearing
or
other security or investment as would not affect the then current rating
of the
Certificates by any Rating Agency (which shall include money market funds
rated
in the highest long-term rating category with portfolios consisting solely
of
obligations in clauses (i) through (iv) above);
provided,
however,
that no
investment described above shall constitute a Permitted Investment (A) if
such investment evidences either the right to receive (i) only interest
with respect to the obligations underlying such instrument or (ii) both
principal and interest payments derived from obligations underlying such
instrument if the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations or (B) if such investment is
not a “permitted investment” for purposes of the REMIC Provisions; and
provided
further,
that no
investment described above shall constitute a Permitted Investment unless
such
investment matures no later than the Business Day immediately preceding the
Distribution Date or the Master Servicer Remittance Date, as applicable,
on
which the funds invested therein are required to be distributed (or, in the
case
of an investment that is an obligation of the institution in which the account
is maintained, no later than such Distribution Date). Neither the Securities
Administrator nor the Master Servicer shall sell or permit the sale of any
Permitted Investment unless they shall have determined that such a sale would
not result in a prohibited transaction in which a gain would be realized
under
the REMIC Provisions.
12
“Person”:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Plan”:
Any
employee benefit plan or retirement arrangement, including individual retirement
accounts, educational savings accounts and annuities, Xxxxx plans and collective
investment funds in which such plans, accounts, annuities or arrangements
are
invested, that are described in or subject to the Plan Asset Regulations,
ERISA
or corresponding provisions of the Code.
“Plan
Asset Regulations”:
The
Department of Labor regulations set forth in 29 C.F.R. § 2510.3-101, as amended
from time to time.
“Plan
Investor”:
Any
Plan, any Person acting on behalf of a Plan or any Person using the assets
of a
Plan.
“Prepayment
Period”:
Unless
otherwise specified in the Trust Agreement, with respect to each Distribution
Date, the calendar month preceding the month in which such Distribution Date
occurs.
“Prepayment
Interest Shortfall”:
With
respect to any Distribution Date and any Principal Prepayment Amount, the
difference between (i) one full month’s interest at the applicable Note Rate
(after giving effect to any applicable Relief Act Reduction), as reduced
by the
applicable Servicing Fee Rate, on the outstanding principal balance of such
Mortgage Loan immediately prior to such prepayment and (ii) the amount of
interest actually received with respect to such Mortgage Loan in connection
with
such Principal Prepayment Amount.
“Prime
Rate”:
With
respect to any Distribution Date, the rate published as the “Prime Rate” in the
“Money Rates” section or other comparable section of The
Wall Street Journal
on such
date. In the event The
Wall Street Journal
publishes a prime rate range, the average of that range, as determined by
the
Securities Administrator, shall be the Prime Rate. In the event The
Wall Street Journal
no
longer publishes a “Prime Rate” entry, the Securities Administrator shall
designate a new methodology for determining the Prime Rate based on comparable
data.
“Principal
Prepayment Amount”:
As
defined in the Trust Agreement.
“Private
Residual Certificate”:
Any
Class of Certificates designated as such in the Trust Agreement.
“Private
Certificate”:
Any
Class of Certificates designated as such in the Trust Agreement.
“Purchase
Price”:
With
respect to a Mortgage Loan purchased from the Trust, an amount equal to the
Scheduled Principal Balance of the Mortgage Loan, plus
accrued
and unpaid interest thereon at the Note Rate to the last day of the month
in
which the purchase occurs, plus
the
amount of any costs and damages incurred by the Trust as a result of any
violation of any applicable federal, state, or local predatory or abusive
lending law arising from or in connection with the origination of such Mortgage
Loan, and less
any
amounts received in respect of such Mortgage Loan and being held in the
Collection Account.
13
“Purchaser”:
The
Person that purchases a Mortgage Loan from the Trust pursuant to
Section 2.03 hereof.
“QIB
Certificate”:
As
defined in Section 5.5(a), a Rule 144A Agreement or a certificate
substantially to the same effect.
“Qualification
Defect”:
With
respect to a Mortgage Loan, (a) a defective document in the Trustee
Mortgage Loan File, (b) the absence of a document in the Trustee Mortgage
Loan File, or (c) the breach of any representation, warranty or covenant
with respect to the Mortgage Loan made by the applicable Seller or Servicer
or
the Depositor but only if the affected Mortgage Loan would cease to qualify
as a
“qualified mortgage” for purposes of the REMIC Provisions. With respect to a
REMIC Regular Interest or a mortgage certificate described in
Section 860G(a)(3) of the Code, the failure to qualify as a “qualified
mortgage” for purposes of the REMIC Provisions.
“Qualified
Institutional Buyer”:
Any
“qualified institutional buyer” as defined in clause (a)(1) of Rule
144A.
“Rating
Agency”:
Any
nationally recognized statistical rating agency, or its successor, that on
the
Closing Date rated one or more Classes of the Certificates at the request
of the
Depositor and identified in the Trust Agreement. If such agency or a successor
is no longer in existence, the “Rating Agency” shall be such nationally
recognized statistical rating agency, or other comparable Person, designated
by
the Depositor, notice of which designation shall be given to the Securities
Administrator. References herein to any long-term rating category of a Rating
Agency shall mean such rating category without regard to any plus or minus
or
numerical designation.
“Realized
Loss”:
A
Liquidation Loss, a Modification Loss or a Bankruptcy Loss, in each case,
to the
extent not covered by Insurance Proceeds.
“Record
Date”:
Shall
have the meaning set forth in the Trust Agreement.
“Regular
Interest”:
An
interest in a REMIC that is designated in the Trust Agreement as a “regular
interest” under the REMIC Provisions.
“Regular
Certificate”:
Any
Certificate other than a Residual Certificate and that represents a Regular
Interest in a REMIC or a combination of Regular Interests in a
REMIC.
“Reference
Banks“:
Four
major banks in the London interbank market selected by the Securities
Administrator.
“Regulation
AB”:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
14
“Regulation
S”:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
“Regulation
S Global Security”:
The
meaning specified in Section 5.05(b).
“Relevant
Servicing Criteria”:
The
Servicing Criteria applicable to each party, as set forth on Exhibit J attached
hereto and on any similar exhibit set forth in each Servicing Agreement and
each
Custodial Agreement. 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 each Servicer,
the term “Relevant Servicing Criteria” may refer to a portion of the Relevant
Servicing Criteria applicable to such parties.
“REMIC”:
With
respect to each Trust, each real estate mortgage investment conduit, within
the
meaning of the REMIC Provisions, for such Trust.
“REMIC
Provisions”:
Provisions of the Code relating to real estate mortgage investment conduits,
which appear at Sections 860A through 860G of the Code, related Code
provisions, and regulations, announcements and rulings thereunder, as the
foregoing may be in effect from time to time.
“Remittance
Report”:
The
report (either a data file or hard copy) that is prepared by each Servicer
for
the Master Servicer which contains the information specified in Schedule
III
hereto.
“REO
Disposition”:
The
receipt by the applicable Servicer of Insurance Proceeds and other payments
and
recoveries (including Liquidation Proceeds) which the Servicer recovers from
the
sale or other disposition of an REO Property.
“REO
Property”:
Mortgaged Premises acquired by the Trust in foreclosure or similar
actions.
“Reportable
Event”:
As
defined in Section 3.02.
“Reporting
Servicer”:
As
defined in Section 3.02.
“Request
for Release”:
A
request signed by an Officer of any Servicer, requesting that the Trustee
(or
applicable Custodian) release the Trustee Mortgage Loan File to such Servicer
for the purpose set forth in such release, in accordance with the terms of
the
Servicing Agreement and these Standard Terms.
“Reserve
Fund”:
Unless
otherwise provided in the Trust Agreement, any fund in the Trust Estate other
than (a) the Certificate Account, Distribution Account, the Master Servicer
Account and Termination Account and (b) any other fund that is expressly
excluded from a REMIC.
15
“Residual
Certificate”:
The
Class RC and Class R Certificates designated as such in the Trust
Agreement.
“Residual
Interest”:
An
interest in a REMIC that is designated as a “residual interest” under the REMIC
Provisions.
“Residual
Transferee Agreement”:
An
agreement substantially in the form of Exhibit F
hereto.
“Responsible
Officer”:
When
used with respect to the Trustee or the Securities Administrator, any senior
vice president, any vice president, any assistant vice president, any assistant
treasurer, any trust officer, any assistant secretary in the Corporate Trust
Office of the Trustee or the Securities Administrator, as the case may be,
or
any other officer of the Trustee or the Securities Administrator customarily
performing functions similar to those performed by the persons who at the
time
shall be such officers and having direct responsibility for the administration
of this Agreement, and also to whom with respect to a particular corporate
trust
matter such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject; provided,
however,
when
used with respect to the Master Servicer, any senior vice president, any
assistant vice president, any trust officer, or any other officer of the
Master
Servicer customarily performing functions similar to those performed by any
such
named officer and having direct responsibility for the master servicing of
the
Mortgage Loans under this Trust Agreement. With respect to any other Person,
the
chairman of the board, the president, a vice president (however designated),
the
treasurer or controller.
“Rule
144A”:
Rule
144A promulgated by the Commission under the Securities Act, as the same
may be
amended from time to time.
“Rule
144A Agreement”:
An
agreement substantially in the form of Exhibit C
hereto.
“Rule
144A Certificates”:
Any
Class of Certificates designated as such in the Trust Agreement.
“Sale
Agreement”:
The Sale
and Servicing Agreement or Sale and Servicing Agreements, as defined in the
Trust Agreement.
“Xxxxxxxx-Xxxxx
Act”:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
“Xxxxxxxx-Xxxxx
Certification”:
A
written certification covering the activities of all Servicing Function
Participants that complies with (i) the Xxxxxxxx-Xxxxx Act, as amended from
time
to time, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect
from
time to time; provided
that
if,
after the Closing Date (a) the Xxxxxxxx-Xxxxx Act is amended, (b) the Rules
referred to in clause (ii) are modified or superseded by any subsequent
statement, rule or regulation of the Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published
by the
Commission from time to time pursuant to the Xxxxxxxx-Xxxxx Act, which in
any
such case affects the form or substance of the required certification and
results in the required certification being, in the reasonable judgment of
the
Master Servicer, materially more onerous than the form of the required
certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification shall
be
as agreed to by the Master Servicer and the Depositor following a negotiation
in
good faith to determine how to comply with any such new
requirements.
16
“Scheduled
Principal Balance”:
For any
Mortgage Loan as of any Due Date subsequent to the Cut-off Date up to and
including the date on which such Mortgage Loan is finally liquidated or
repurchased from the Trustee, the scheduled principal balance thereof as
of the
Cut-off Date, increased by the amount of negative amortization, if any, with
respect thereto, and reduced by (i) the principal portion of all Monthly
Payments due on or before such Due Date, whether or not paid by the Borrower
or
advanced by a Servicer, the Master Servicer, the Securities
Administrator or
an
Insurer, net of any portion thereof that represents principal due on a Due
Date
occurring on or before the date on which such proceeds were received,
(ii) the principal portion of all Prepayments, including Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceeds, and Payoffs received
on
or before the last day of the Prepayment Period preceding such date of
determination, and (iii) without duplication, the amount of any Realized
Loss that has occurred with respect to such Mortgage Loan.
“Securities
Account”:
As set
forth in the Trust Agreement.
“Securities
Act”:
The
Securities Act of 1933, as amended.
“Securities
Administrator”:
As set
forth in the Trust Agreement.
“Securities
Intermediary”:
As set
forth in the Trust Agreement.
“Seller”:
The Loan
Seller or Loan Sellers identified in the Trust Agreement.
“Senior
Collateral Group Percentage”:
The
percentage, if any, calculated as set forth in the Trust Agreement.
“Senior
Prepayment Percentage”:
The
percentage, if any, calculated as set forth in the Trust Agreement.
“Series”:
A group
of Certificates issued by a separate Trust.
“Servicemembers
Shortfall”:
Interest
losses on a Mortgage Loan resulting from application of the Servicemembers’
Civil Relief Act, as amended.
“Servicer”:
The
Servicer or Servicers identified in the Servicing Agreement or
Agreements.
“Service(s)(ing)”
With
respect to Regulation AB, the act of servicing and administering the Mortgage
Loans or any other assets of the Trust by an entity that meets the definition
of
“servicer” set forth in Item 1101 of Regulation AB and is subject to the
disclosure requirements set forth in 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.
17
“Servicer
Compensation”:
The
Servicing Fee and any additional compensation as specified in the Servicing
Agreement or Agreements.
“Servicer
Event of Default”:
With
respect to each Servicer, shall have the meaning set forth in the applicable
Servicing Agreement.
“Servicer
Mortgage Loan File”:
With
respect to each Mortgage Loan, the related Mortgage File, as that term is
defined in the related Servicing Agreement.
“Servicer
Remittance Date”:
Shall
mean the 18th
day of
each month or, if such day is not a Business Day, the immediately preceding
Business Day, or such other day as set forth in the related Sale and Servicing
Agreement.
“Servicing
Advance”:
Amounts
advanced by the applicable Servicer as necessary to preserve the Trust’s
interest in the Mortgaged Premises or the Mortgage Loans.
“Servicing
Agreement”:
The Sale
and Servicing Agreement or Sale and Servicing Agreements, as defined in the
Trust Agreement.
“Servicing
Criteria”:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
“Servicing
Fee”:
Unless
otherwise provided in the Trust Agreement, in any month, an amount equal
to
one-twelfth of the Servicing Fee Rate multiplied by the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Due Date preceding a
Distribution Date without taking into account any payment of principal due
or
made on such Due Date.
“Servicing
Fee Rate”:
The rate
or rates specified as such in the related Trust Agreement or the applicable
Servicing Agreement.
“Servicing
Function Participant”:
Any
Subservicer, Subcontractor or any other Person, 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.
“Shortfall”:
Month
End Interest Shortfall and Servicemembers’ Shortfall.
“Special
Tax Consent”:
The
written consent of the Holder of a Residual Certificate to any tax (or risk
thereof) arising out of a proposed transaction or activity that may be imposed
upon such Holder or that may affect adversely the value of such Holder’s
Residual Certificate.
“Special
Tax Opinion”:
An
Opinion of Counsel that a proposed transaction or activity will not
(a) affect adversely the status of any REMIC as a REMIC or of the Regular
Interests as the “regular interests” therein under the REMIC Provisions,
(b) affect the payment of interest or principal on the Regular Interests,
or (c) result in the encumbrance of the Mortgage Loans by a tax
lien.
18
“Standard
Terms”:
These
Standard Terms, as amended or supplemented, incorporated by reference in
a Trust
Agreement.
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of 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 a Servicer or related
Subservicer.
“Subservicer”:
Any
Person that services Mortgage Loans on behalf of a Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
require to be performed by a Servicer under the applicable Servicing Agreement
that are identified in Item 1122(d) of Regulation AB.
“Supplemental
Trust Agreement”:
Any
Supplemental Trust Agreement by and between the Trustee, the Master Servicer
and
the Securities Administrator.
“Tax
Matters Person”:
The
Securities Administrator which will act as tax matters person (within the
meaning of the REMIC Provisions) of a REMIC.
“Terminating
Purchase”:
The
purchase of all Mortgage Loans and each REO Property owned by a Trust pursuant
to Section 10.02 hereof.
“Termination
Account”:
An
escrow account maintained by the Securities Administrator into which any
Trust
funds not distributed on the Distribution Date on which the earlier of
(a) a Terminating Purchase or (b) the final payment or other
Liquidation of the last Mortgage Loan remaining in the Trust or the disposition
of the last REO Property remaining in the Trust is made are deposited. The
Termination Account shall be an Eligible Account.
“Termination
Price”:
An
amount equal to the greater of (a) the sum of (i) 100% of the aggregate
outstanding principal balance of each Mortgage Loan (other than Liquidated
Mortgage Loans) remaining in the Trust on the day of such purchase, plus
accrued
interest thereon at the Note Rate and the amount of any outstanding Servicing
Advances on such Mortgage Loans to the Due Date in the month in which the
Termination Price is distributed to Certificateholders, less Bankruptcy Losses
that would otherwise have been allocated to the Certificates and (ii) the
lesser
of (A) the Scheduled Principal Balance of the Mortgage Loan for each REO
Property or other property remaining in the Trust, plus accrued interest
thereon
at the Note Rate (less the related Servicing Fee Rate) to the Due Date in
the
month in which the Termination Price is distributed to Certificateholders,
and
(B) the sum of the aggregate fair market value of any such REO Property and
all
other property of the Trust, and (b) the aggregate fair market value of all
of
the Mortgage Loans remaining in the Trust on the date of such purchase, plus
all
REO Property and any other property remaining in the Trust on the date of
such
purchase. The respective amounts under clause (a)(ii)(B) and clause (b) above
shall be determined by the Securities Administrator in consultation with
the
Initial Purchaser (or, if the Initial Purchaser is unwilling or unable to
serve
in that capacity, a financial advisor selected by the Securities Administrator
in a commercially reasonable manner, whose fees will be an expense of the
Depositor (or other party causing the Termination Purchase)), based upon
the
mean of bids from at least three recognized broker/dealers that deal in similar
assets) as of the close of business on the third Business Day preceding the
date
upon which notice of any such termination is furnished to Certificateholders
pursuant to Section 9.03; provided,
however,
that in
determining such aggregate fair market value, the Securities Administrator
shall
be entitled to conclusively rely on such bids or the opinion of a nationally
recognized investment banker (the fees of which shall be an expense of the
Trust). The fair market value of the REO Property and other property of the
Trust shall be based upon the inclusion of (i) accrued interest to the last
day
of the month in which the Termination Price is distributed to the
Certificateholders, at the applicable Note Rate (less the related Servicing
Fee
Rate) on the Scheduled Principal Balance of each Mortgage Loan related to
an REO
Property and (ii) the amount of any costs and damages incurred by the Trust
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
any
Mortgage Loans remaining in the Trust.
19
“Transferee
Agreement”:
An
agreement substantially in the form of Exhibit D
hereto.
“Trust”
or “Trust Fund”:
The
trust fund formed pursuant to the Trust Agreement.
“Trust
Agreement” or
this“Agreement”:
The
Master Servicing and Trust Agreement, dated as of May 1, 2007, among the
Depositor, the Custodians, the Master Servicer, the Securities Administrator
and
the Trustee relating to the issuance of Certificates, and into which these
Standard Terms are incorporated by reference.
“Trust
Estate”:
The
segregated pool of assets sold and assigned to the Trustee for the benefit
of
the Certificateholders by the Depositor pursuant to the conveyance
clause of the Trust Agreement.
“Trust
Receipt”:
A
certification as to the completeness of each Trustee Mortgage Loan File
substantially in the form of Exhibit A
hereto
provided by a Custodian pursuant to Section 2.02 hereof.
“Trustee”:
The bank
or trust company identified as the Trustee in the Trust Agreement, and its
successors and assigns.
“Trustee
Advance”:
Not
applicable.
“Trustee
Fee”:
Not
applicable.
“Trustee
Fee Rate”:
Not
applicable.
“Trustee
Mortgage Loan File”:
With
respect to each Mortgage Loan, unless otherwise provided in the Trust Agreement,
collectively, the following documents, together with any other Mortgage Loan
documents held by the Trustee or the related Custodian with respect to such
Mortgage Loan:
20
(a)
The
original executed mortgage note endorsed, “Pay to the order of ________________
or in the name of the Trustee, Deutsche Bank National Trust Company, as trustee
under a Master Servicing and Trust Agreement, dated as of May 1, 2007, without
recourse”, and signed in the name of the Seller (or an affiliate of such Seller,
if applicable) by an officer of such Seller (or an affiliate of such Seller,
if
applicable), or a Lost Document Affidavit with a copy of the original mortgage
note attached; provided that unless otherwise provided in the related Sale
and
Servicing Agreement or if the mortgage note has been left blank, the words
“Deutsche Bank National Trust Company, as trustee under a Master Servicing
and
Trust Agreement, dated as of May 1, 2007” shall be inserted into the blank; and
provided that the mortgage note shall include all intervening original
endorsements showing a complete chain of title from the originator to such
Seller (or an affiliate of such Seller, if applicable);
(b)
The
original executed Mortgage, or a certified copy thereof, in either case with
evidence of recording noted thereon;
(c)
Except for Mortgage Loans registered on MERS, the original assignment of
each
Mortgage from the related Seller (or its affiliate, if applicable) delivered
in
blank in recordable form;
(d)
The
original or copy of a policy of title insurance, a certificate of title,
or
attorney’s opinion of title (accompanied by an abstract of title), as the case
may be, with respect to each Mortgage Loan;
(e)
Except for Mortgage Loans originated through MERS, originals of any intervening
assignments of the mortgage necessary to show a complete chain of title from
the
original mortgagee to the Seller, or certified copies thereof, in either
case
with evidence of recording noted thereon; provided, that such intervening
assignments may be in the form of blanket assignments, a copy of which, with
evidence of recording noted thereon, shall be acceptable;
(f)
Originals of all modification agreements, or certified copies thereof, in
either
case with evidence of recording noted thereon if recordation is required
to
maintain the lien of the mortgage or is otherwise required, or, if recordation
is not so required, an original or copy of any such modification
agreement;
(g)
To
the extent applicable, an original power of attorney, or a certified copy
thereof, in either case with evidence of recordation thereon if necessary
to
maintain the lien on the Mortgage or if the document to which such power
of
attorney relates is required to be recorded, or, if recordation is not so
required, an original or copy of such power of attorney; and
(h)
An
original or copy of any surety agreement or guaranty agreement.
Notwithstanding
the foregoing, with respect to any power of attorney, mortgage, assignment,
intervening assignment, assumption agreement, modification agreement or deed
of
sale for which a certified copy is delivered in accordance with the foregoing,
the copy must be certified as true and complete by the appropriate public
recording office, or, if the original has been submitted for recording but
has
not yet been returned from the applicable recording office, an officer of
the
Seller (or a predecessor owner, a title company, closing/settlement/escrow
agent
or company or closing attorney) must certify the copy as a true copy of the
original submitted for recordation. Copies of blanket intervening assignments,
however, need not be certified.
21
“UCC”:
The
Uniform Commercial Code as in effect in the jurisdiction that governs the
interpretation of the substantive provisions of the Trust Agreement, as such
Uniform Commercial Code may be amended from time to time.
“Underlying
MBS”:
Not
applicable.
“Unpaid
Principal Balance”:
With
respect to any Mortgage Loan, the outstanding principal balance payable by
the
related Borrower under the terms of the Note.
“U.S.
Person”:
A Person
other than a Non-U.S. Person.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. Unless otherwise provided in the Trust Agreement, (a) if
any Class of Certificates does not have a Certificate Balance or has an initial
Certificate Balance that is less than or equal to 1% of the aggregate
Certificate Balance of all of the Certificates, then 1% of Voting Rights
shall
be allocated to each Class of such Certificates having no Certificate Balance
or
a Certificate Balance equal to or less than 1% of the aggregate Certificate
Balance of all Certificates; provided,
however,
that
each class of Residual Interest Certificateholders in a multiple REMIC Series
shall be treated as a separate Class of Certificateholders, and the balance
of
Voting Rights shall be allocated among the remaining Classes of Certificates
in
proportion to their respective Certificate Balances following the most recent
Distribution Date, and (b) if no Class of Certificates has an initial
Certificate Balance less than 1% of the aggregate Certificate Balance, then
all
of the Voting Rights shall be allocated among all the Classes of Certificates
in
proportion to their respective Certificate Balances following the most recent
Distribution Date. Voting Rights allocated to each Class of Certificates
shall
be allocated in proportion to the respective Percentage Interests of the
Holders
thereof.
“Xxxxx
Fargo Bank”:
Xxxxx
Fargo Bank, N.A., and its successors.
“Withholding
Agent”:
The
Securities
Administrator or
its
designated Paying Agent or other person who is liable to withhold federal
income
tax from a distribution on a Residual Certificate under Sections 1441 and
1442 of the Code and the Treasury regulations thereunder.
ARTICLE
II
MORTGAGE
LOAN FILES
Section
2.01 Mortgage
Loan Files.
Pursuant
to the Trust Agreement, the Depositor has sold to the Trustee, for the benefit
of the Certificateholders, without recourse all the right, title and interest
of
the Depositor in and to the Mortgage Loans, any and all rights, privileges
and
benefits accruing to the Depositor under each Assignment Agreement, each
Custodial Agreement, each Sale Agreement, and each Servicing Agreement with
respect to the Mortgage Loans, including the rights and remedies with respect
to
the enforcement of any and all representations, warranties and covenants
under
such agreements and all other agreements and assets included or to be included
in the Trust for the benefit of the Certificateholders as set forth in the
conveyance clause of the Trust Agreement. Such assignment includes all of
the Depositor’s rights to Monthly Payments on the Mortgage Loans due after the
Cut-off Date, and all other payments of principal (and interest) made on
or
after the Cut-off Date that are reflected in the initial aggregate Certificate
Balance for a Trust.
22
In
connection with such transfer and assignment, the Depositor shall deliver,
or
has caused to be delivered, to the Trustee or the related Custodian on or
before
the Closing Date, with respect to each Mortgage Loan, the Trustee Mortgage
Loan
File that was delivered to such Custodian by the Servicer. If any Mortgage
or an
assignment of a Mortgage to the Trustee or any prior assignment is in the
process of being recorded on the Closing Date, the Depositor shall cause
each
such original recorded document or certified copy thereof, to be delivered
to
the Trustee or the related Custodian promptly following its recordation and
return to the Depositor.
The
Depositor hereby directs the Trustee and the Securities Administrator, not
in
their individual capacities but solely in such capacities, to enter into
the
Supplemental Trust Agreement, and (solely in the case of the Trustee) each
Step
2 Assignment Agreement, to make any representations and warranties of such
party
set forth therein and to perform their respective obligations
thereunder.
Section
2.02 Acceptance
by the Trustee.
(a)
By
its execution of the Trust Agreement, the Trustee acknowledges and declares
that
it or the applicable Custodian holds and will hold or has agreed to hold
(in
each case through the applicable Custodian) all documents delivered to it
or any
such Custodian from time to time with respect to a Mortgage Loan and all
assets
included in the definition of “Trust Estate” in the Trust Agreement in trust for
the exclusive use and benefit of all present and future Certificateholders.
The
Trustee represents and warrants that (i) it acquired the Mortgage Loans on
behalf of the Trust from the Depositor in good faith, for value, and without
actual notice or actual knowledge of any adverse claim, lien, charge,
encumbrance or security interest (including, without limitation, federal
tax
liens or liens arising under ERISA) (it being understood that the Trustee
has
not undertaken searches (lien records or otherwise) of any public records),
(ii) except as permitted in the Trust Agreement, it has not and will not,
in any capacity, assert any claim or interest in the Mortgage Loans and will
hold (or its agent will hold) such Mortgage Loans and the proceeds thereof
in
trust pursuant to the terms of the Trust Agreement, and (iii) it has not
encumbered or transferred its right, title or interest in the Mortgage
Loans.
(b)
The
applicable Custodian has reviewed, for the benefit of the Certificateholders
and
the parties hereto, each Trustee Mortgage Loan File and has delivered to
the
Trustee (with a copy to the Depositor) on the Closing Date a Trust Receipt,
in
the form annexed hereto as Exhibit
A
(the
“Trust
Receipt”)
with
respect to each Mortgage Loan to the effect that, except as specifically
noted
on a schedule of exceptions thereto (the “Exceptions
List”):
23
(i)
all
documents required to be delivered to it pursuant to clause (a) through (e)
and (g) of the definition of Trustee Mortgage Loan File are in the Trustee’s or
applicable Custodian’s possession,
provided
that,
(A)
such
Custodian shall have no obligation to verify the receipt of any such documents
the existence of which was not made known to such Custodian by the Trustee
Mortgage Loan File, and
(B)
such
Custodian shall have no obligation to determine whether recordation of any
such
modification is necessary;
(ii)
all
documents have been examined by such Custodian and appear regular on their
face
and to relate to the Mortgage Loans;
(iii)
based only on such Custodian’s examination of the foregoing documents, the
information set forth on the Mortgage Loan Schedule representing each Mortgage
Loan accurately reflects the Originator loan number, the borrower’s name, the
original principal balance, the maturity date of the mortgage loan and the
mortgage loan interest rate; and
(iv)
that
each mortgage note has been endorsed and each assignment of mortgage has
been
assigned as described in the definition of Trustee Mortgage Loan File,
provided
that
such Custodian shall have no obligation to confirm that the assignments are
in
recordable form.
In
making
the verification required by this Section 2.02(b), the applicable Custodian
has conclusively relied on the Mortgage Loan Schedule attached hereto, and
such
Custodian shall have no obligation to independently verify the correctness
of
such Mortgage Loan Schedule.
(c)
It is
understood that before delivering the Trust Receipt, the applicable Custodian,
on behalf of the Trustee, has examined the Mortgage Loan Documents to confirm
the following (and shall report any exceptions to these confirmations in
the
Exceptions Report attached to the Trust Receipt):
(i)
each
mortgage note, mortgage, guaranty and deed of sale bears a signature or
signatures that appear on their face to be original and that purport to be
that
of the Person or Persons named as the maker and mortgagor/trustor or, if
photocopies are permitted, that such copies bear a reproduction of such
signature or signatures;
(ii)
the
mortgage and the assignment include the endorsement required pursuant to
clause
(a) of the definition of Trustee Mortgage Loan File;
(iii)
the
original principal amount of the indebtedness secured by the mortgage is
identical to the original principal amount of the mortgage note;
24
(iv)
the
interest rate shown on the Mortgage Loan Schedule is identical to the interest
rate shown on the mortgage note;
(v)
the
assignment of the mortgage from the related Seller (or its affiliate, if
applicable) to the Trustee is in the form required pursuant to clause (c)
of the definition of Trustee Mortgage Loan File, and bears the signature
of the
related Seller (or its affiliate, if applicable) that appears to be an original
or, if photocopies are permitted, such copies bear a reproduction of such
signature or signatures; and
(vi)
if
intervening assignments are included in the Trustee Mortgage Loan File, each
such intervening assignment bears the signature of the mortgagee and/or the
Purchaser (and any subsequent assignors) that appears to be an original or,
if
photocopies are permitted, that such copies bear a reproduction of such
signature or signatures.
(d)
On or
before May 24, 2008, each Custodian shall deliver to the Trustee (or any
assignee of the Trustee) a Final Certification in the form of Exhibit
B
evidencing the completeness of such Trustee Mortgage Loan File for each related
Mortgage Loan (provided,
however,
that
such Custodian shall not be required nor does it intend to re-examine the
contents of the Trustee Mortgage Loan File for any of the Mortgage Loans
in
connection with entering into this Agreement). An updated exceptions report
for
the Mortgage Loans is attached to such Custodian’s Final Certification to be
delivered under this Section 2.02.
(e)
Upon
the written request of a Servicer, the Depositor or the Trustee, no later
than
the fifth Business Day of each month, commencing in June 2007, each Custodian
shall deliver to each related Servicer (or such other party responsible for
recordation of any mortgages and/or assignments as specified in the related
Sale
and Servicing Agreement), GS Mortgage Securities Corp., as depositor, and
the
Trustee in hard copy format (and if requested, in electronic format), the
exceptions list required by this Section 2.02, updated to remove exceptions
cured since the date on which the applicable Custodial Receipt was issued.
In
addition, such monthly reports shall list any document with respect to which
the
applicable Seller delivered a copy certifying that the original had been
sent
for recording, until such time as the applicable Seller delivers to the
applicable Custodian the original of such document or a copy thereof certified
by the appropriate public recording office. The data collection schedule
attached to the applicable Trust Receipt shall not be included unless
specifically requested in advance by such Servicer, the Depositor or the
Trustee; provided,
that in
no event shall the WFB Custodian be required to furnish a data collection
schedule. No Custodian shall be under a duty to review, inspect or examine
such
documents to determine that any of them are genuine, recordable, enforceable
or
appropriate for their prescribed purpose. During the term of this Agreement,
in
the event a Custodian discovers any nonconformity with the review set forth
in
this Section 2.02 with respect to such Trustee Mortgage Loan Files, such
Custodian shall give written notice of such defect to such Servicer, the
Depositor and the Trustee.
(f)
In
lieu of the Trustee’s taking possession of the Trustee Mortgage Loan Files and
reviewing such files itself, the Trustee shall, if so provided in the Trust
Agreement, and may, in accordance with Section 9.11 hereof, appoint one or
more
Custodians to hold the Trustee Mortgage Loan Files on its behalf and to review
them as provided in this Section 2.02. The Depositor shall, upon notice of
the appointment of a Custodian, deliver or cause to be delivered all documents
to such Custodian that would otherwise be deliverable to the Trustee. In
such
event, each such Custodian shall provide to the Trustee, within the specified
times, the Trust Receipt and the Final Certifications with respect to those
Mortgage Loans held and reviewed by such Custodian and may deliver (or cause
such Custodian to deliver) such Certifications and electronically deliver
Reports to the Depositor in satisfaction of the Trustee’s obligation to prepare
such Certifications and Reports (it being understood that absent actual
knowledge that the information in any such Certification or Report is inaccurate
or incomplete, the Trustee may conclusively rely thereon). The Trustee shall
notify the applicable Custodian of any notices delivered to the Trustee with
respect to those Trustee Mortgage Loan Files.
25
Section
2.03 Purchase
of Mortgage Loans by a Servicer, a Seller, GSMC or the
Depositor.
(a)
Servicer
Breach.
In
addition to taking any action required pursuant to Section 7.01 hereof,
upon discovery by a Responsible Officer of the Master Servicer, the Securities
Administrator or the Trustee of any breach by any Servicer of any
representation, warranty or covenant under the related Servicing Agreement,
which breach materially and adversely affects the value of any Mortgage Loan
or
the interest of the Trust therein (it being understood that any such breach
shall be deemed to have materially and adversely affected the value of the
related Mortgage Loan or the interest of the Trust therein if the Trust incurs
or may incur a loss as a result of such breach), the party discovering such
breach shall give prompt written notice thereof to the other applicable parties
(including, without limitation, the Depositor, the Securities Administrator,
the
Trustee and the applicable responsible party). Upon discovery by a Responsible
Officer of the Securities Administrator of such breach or receipt of notice
thereof, the Securities Administrator shall promptly request in writing that
such Servicer of such Mortgage Loan correct or cure such breach in accordance
with the Trust Agreement. Upon
discovery by a Responsible Officer of the Securities Administrator of a breach
of a representation or warranty, the Securities Administrator shall
provide to the Trustee and the Depositor written notice of each Mortgage
Loan in breach of a representation or warranty (i) for which cure, repurchase
or
substitution has been requested and (ii) for which cure, repurchase or
substitution has been requested, but which has not been satisfactorily cured,
repurchased or substituted for within the cure period set forth in the related
Servicing Agreement. If by the end of such cure period set forth in the related
Servicing Agreement such Servicer does not cure such breach in all material
respects, the Securities Administrator shall notify the Depositor in
writing of such failure. The Trustee shall enforce such Servicer’s obligation
under such Servicing Agreement to purchase such Mortgage Loan from the Trustee.
Notwithstanding the foregoing, however, if such breach results in or is a
Qualification Defect, such cure, purchase or substitution must take place
within
75 days of the Defect Discovery Date.
(b)
Sellers’
Breach.
Upon
discovery by a Responsible Officer of the Master Servicer, the Securities
Administrator or the Trustee or notice to the Master Servicer, the Securities
Administrator or the Trustee of any defective or missing document (as described
in the related Sale Agreement) in a Trustee Mortgage Loan File, or of any
breach
by any Seller of any representation, warranty or covenant under the related
Sale
Agreement, which defect or breach materially and adversely affects the value
of
any Mortgage Loan or the interest of the Trust therein (it being understood
that
any such defect or breach shall be deemed to have materially and adversely
affected the value of the related Mortgage Loan or the interest of the Trust
therein if the Trust incurs a loss as a result of such defect or breach),
the
parties discovering or receiving notice of such defect or breach shall notify
the applicable parties (including, without limitation, the Depositor, the
Securities Administrator, the Trustee and the applicable responsible party)
in
writing of such defect or breach of representation, warranty or covenant.
Upon
discovering or receipt of written notice of such breach, the Securities
Administrator shall promptly request that such Seller cure such breach.
Upon discovery by a Responsible Officer of the Securities Administrator of
a
breach of a representation or warranty, the Securities Administrator shall
provide to the Trustee and the Depositor written notice of each Mortgage
Loan in breach of a representation or warranty (i) for which cure, repurchase
or
substitution has been requested and (ii) for which cure, repurchase or
substitution has been requested, but which has not been satisfactorily cured,
repurchased or substituted for within the cure period specified in such Sale
Agreement. If such Seller does not cure such defect or breach in all material
respects by the end of the cure period specified in such Sale Agreement and
any
extension of the cure period granted as permitted by such Sale Agreement,
the
Securities Administrator shall notify the Depositor in writing of such
failure.
26
In
the
event any Servicer has breached a representation or warranty under the related
Servicing Agreement that is substantially identical to a representation or
warranty breached by a Seller, upon receipt of notice in accordance with
Section
2.03, the Trustee shall first proceed against such Servicer. If such Servicer
does not within 60 days (or such other period provided in the related Servicing
Agreement) after notification of the breach, either take steps to cure such
breach (which may be evidenced by a certificate asking for an extension of
time
in which to effectuate a cure) or complete the purchase of the Mortgage Loan,
then (i) the Trustee, shall enforce the obligations of the Seller under the
related Sale Agreement to cure such breach or to purchase the Mortgage Loan
from
the Trust, and (ii) such Seller shall succeed to the rights of the Trustee
to enforce the obligations of the Servicer to cure such breach or repurchase
such Mortgage Loan under the Servicing Agreement with respect to such Mortgage
Loan.
Notwithstanding
the foregoing, however, if any breach of a representation or warranty by
the
Servicer or of a Seller is a Qualification Defect, a cure or purchase must
take
place within 75 days of the Defect Discovery Date.
(c)
GSMC
Breach.
Upon
its discovery or notice to it of any breach by GSMC of any representation,
warranty or covenant under any Assignment Agreement which materially and
adversely affects the value of any Mortgage Loan or the interest of the Trust
therein (it being understood that any such defect or breach shall be deemed
to
have materially and adversely affected the value of the related Mortgage
Loan or
the interest of the Trust therein if the Trust incurs a loss as a result
of such
defect or breach), the Securities Administrator, shall promptly request that
GSMC cure such breach and, if GSMC does not cure such breach in all material
respects within 90 days from the date on which it is notified of the breach,
shall enforce GSMC’s obligation under such Assignment Agreement to purchase such
Mortgage Loan from the Trustee.
(d)
Depositor
Breach.
Within
90 days of the earlier of its discovery or receipt of notice by the Depositor
of
the breach of any of its representations or warranties set forth in
Section 2.04 hereof with respect to any Mortgage Loan, which breach
materially and adversely affects the value of the related Mortgage Loan or
the
interest of the Trust therein (it being understood that any such defect or
breach shall be deemed to have materially and adversely affected the value
of
the related Mortgage Loan or the interest of the Trust therein if the Trust
incurs a loss as a result of such defect or breach), the Depositor shall
(i) cure such breach in all material respects, or (ii) purchase the
Mortgage Loan from the Trustee.
27
In
the
event the Depositor has breached a representation or warranty under
Section 2.04 hereof that is substantially identical to a representation or
warranty breached by a Servicer or Seller, upon receipt of notice in accordance
with Section 2.03, the Trustee shall first proceed against the applicable
Servicer or Seller, as appropriate. If such Servicer or Seller, as appropriate,
does not within the cure period set forth in the related Sale Agreement or
Servicing Agreement, as applicable, either take steps to cure such breach
(which
may be evidenced by a certificate asking for an extension of time in which
to
effectuate a cure) or complete the purchase of or substitution for the Mortgage
Loan, then (i) the Trustee shall enforce the obligations of the Depositor
to cure such breach or to purchase the Mortgage Loan from the Trust, and
(ii) the Depositor shall succeed to the rights of the Trustee to enforce
the obligations of such Servicer or Seller to cure such breach or repurchase
such Mortgage Loan under the related Servicing Agreement or Sale Agreement,
as
applicable, with respect to such Mortgage Loan.
Notwithstanding
the foregoing, however, if any breach of a representation or warranty by
the
Depositor is a Qualification Defect, a cure or purchase must take place within
75 days of the Defect Discovery Date.
(e)
Purchase
Price.
The
purchase of any Mortgage Loan from the Trust pursuant to this Section 2.03
shall be effected for its Purchase Price. If the Purchaser is the related
Servicer, the Purchase Price shall be deposited in the Collection Account.
If
the Purchaser is other than such Servicer, an amount equal to the Purchase
Price
shall be deposited into the Certificate Account. Within five Business Days
of
its receipt of such funds or certification by the appropriate Servicer that
such
funds have been deposited in the related Collection Account, the Trustee
shall
release or cause the related Servicer to cause the applicable Custodian to
release to the Purchaser or its designee the related Trustee Mortgage Loan
File
and, at the request of the Purchaser, the Trustee shall execute and deliver
such
instruments of transfer or assignment, in each case without recourse, in
form as
presented by the Purchaser and satisfactory to the Trustee, as shall be
necessary to vest in the Purchaser title to any Mortgage Loan released pursuant
hereto and the Trustee shall have no further responsibility with regard to
such
Trustee Mortgage Loan File.
(f)
Determination
of Purchase Price.
The
Securities Administrator will be responsible for determining the Purchase
Price
for any Mortgage Loan that is sold by the Trust or with respect to which
provision is made for the escrow of funds pursuant to this Section 2.03 and
shall at the time of any purchase or escrow certify such amounts to the
Depositor; provided
that the
Securities Administrator may consult with the Servicer to determine the Purchase
Price unless such Servicer is the Purchaser of such Mortgage Loan. If, for
whatever reason, the Securities Administrator shall determine that there
is a
miscalculation of the amount to be paid to the Trust, the Securities
Administrator shall from monies in a Distribution Account return any overpayment
that the Trust received as a result of such miscalculation to the applicable
Purchaser upon the discovery of such overpayment, and the Securities
Administrator shall collect from the applicable Purchaser for deposit to
the
Securities Account any underpayment that resulted from such miscalculation
upon
the discovery of such underpayment. Recovery may be made either directly
or by
set-off of all or any part of such underpayment against amounts owed by the
Trust to such Purchaser.
28
(g)
Qualification
Defect.
If
(A) any person required to cure or purchase under subsections 2.03(a),
2.03(b), 2.03(c) or 2.03(d) of these Standard Terms or under a separate
agreement for a Mortgage Loan affected by a Qualification Defect fails to
perform within the earlier of (1) 75 days of the Defect Discovery Date or
(2) the time limit set forth in those subsections or that separate
agreement or (B) no person is obligated to cure or purchase a Mortgage Loan
affected by a Qualification Defect, the Trustee shall dispose of such Mortgage
Loan in such manner and for such price as the Trustee determines are
appropriate, provided
that the
removal of such Mortgage Loan occurs no later than the 90th day from the
Defect
Discovery Date. If the Servicer is not the person required to cure or repurchase
the Mortgage Loan, the Trustee may consult with such Servicer to determine
an
appropriate manner of disposition for and price for such Mortgage Loan. It
is
the express intent of the parties that a Mortgage Loan affected by a
Qualification Defect be removed from the Trust by the 90th day from the Defect
Discovery Date so that the related REMIC(s) will continue to qualify as a
REMIC.
Accordingly, the Trustee is not required to sell an affected Mortgage Loan
for
its fair market value nor shall the Trustee be required to make up any shortfall
resulting from the sale of such Mortgage Loan. The person failing to perform
under subsections 2.03(a), 2.03(b), 2.03(c) or 2.03(d) of these Standard
Terms shall be liable to the Trust for (i) any difference between
(A) the Unpaid Principal Balance of the Mortgage Loan plus
accrued
and unpaid interest thereon at the Note Rate to the date of disposition and
(B) the net amount received by the Trustee from the disposition (after the
payment of related expenses), (ii) interest on such difference at the Note
Rate (less the Administrative Cost Rate) from the date of disposition to
the
date of payment and (iii) any legal and other expenses incurred by or on
behalf of the Trust in seeking such payments. The Trustee shall pursue the
legal
remedies of the Trust on the Trust’s behalf and the Trust shall reimburse the
Trustee for any legal or other expenses of the Trustee related to such pursuit
not recovered from such person.
(h)
Unless otherwise provided in the applicable Sale Agreement, and notwithstanding
Section 2.03(b) hereof, if a Seller concludes at the end of any applicable
cure period (and any extension thereof) that a document required to be included
in the Trustee Mortgage Loan File cannot be found or replaced, the Seller
may,
in lieu of immediately repurchasing the related Mortgage Loan, provide
(a) a Lost Document Affidavit and (b) Opinion of Counsel that the
missing document does not constitute a Qualification Defect. In that event,
the
Trustee shall not require such Seller immediately to repurchase the Mortgage
Loan, but, if at any time there is any loss, liability, or damage, including
reasonable attorney’s fees, resulting from the unavailability of any originals
of any such documents or of a complete chain of intervening endorsements,
as the
case may be (collectively, “Losses”),
the
Trustee shall enforce the Seller’s obligation to indemnify the Trust for such
Losses. Expenses of the Trustee related to such enforcement not recovered
from
the Seller shall be reimbursed by the Trust.
(i)
Notices.
Any
Person required under this Section 2.03 to give notice or to make a request
of another Person to give notice shall give such notice or make such request
promptly.
(j)
No
Other Enforcement Obligation.
Except
as specifically set forth herein, none of the Master Servicer, the Securities
Administrator or the Trustee shall have any responsibility to enforce any
provision of a Sale Agreement, Servicing Agreement or Assignment Agreement
assigned to it hereunder, to oversee compliance thereof, or to take notice
of
any breach or default thereof. No successor servicer shall have any obligation
to repurchase a Mortgage Loan except to the extent specifically set forth
in the
Servicing Agreement signed by such substitute servicer.
29
Section
2.04 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Trustee that as of the Closing
Date or as of such other date specifically provided herein:
(a)
The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware with full power and
authority (corporate and other) to enter into and perform its obligations
under
the Trust Agreement;
(b)
The
Trust Agreement has been duly executed and delivered by the Depositor, and,
assuming due authorization, execution and delivery by the Trustee, the
Securities Administrator and the Master Servicer, constitutes a legal, valid
and
binding agreement of the Depositor, enforceable against it in accordance
with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium
or
other similar laws affecting creditors’ rights generally and to general
principles of equity regardless of whether enforcement is sought in a proceeding
in equity or at law;
(c)
The
execution, delivery and performance by the Depositor of the Trust Agreement
and
the consummation of the transactions contemplated thereby do not require
the
consent or approval of, the giving of notice to, the registration with, or
the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date thereof;
(d)
The
execution and delivery of this Trust Agreement have been duly authorized
by all
necessary corporate action on the part of the Depositor; neither the execution
and delivery by the Depositor of the Trust Agreement, nor the consummation
by
the Depositor of the transactions therein contemplated, nor consummation
of the
transactions therein contemplated, nor compliance by the Depositor with the
provisions thereof, will conflict with or result in a breach of, or constitute
a
default under, any of the provisions of the articles of incorporation or
by-laws
of the Depositor or any law, governmental rule or regulation or any judgment,
decree or order binding on the Depositor or any of its properties, or any
of the
provisions of any indenture, mortgage, deed of trust, contract or other
instrument to which the Depositor is a party or by which it is
bound;
(e)
There
are no actions, suits or proceedings pending or, to the knowledge of the
Depositor, threatened against the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect to
any of the transactions contemplated by the Trust Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to
the
Depositor materially adversely affect its ability to perform its obligations
under the Trust Agreement;
(f)
Except for the sale to the Trustee, the Depositor has not assigned or pledged
any mortgage note or the related mortgage or any interest or participation
therein;
30
(g)
The
Depositor has acquired its ownership in the Mortgage Loans in good faith
and
without notice of any adverse claim;
and
(h)
The
Depositor has not canceled, satisfied or subordinated in whole or in part,
or
rescinded any Mortgage, and the Depositor has not released any Mortgaged
Premises from the lien of the related mortgage, in whole or in part, nor
has the
Depositor executed an instrument that would effect any such release,
cancellation, subordination or rescission (except in connection with an
assumption agreement or other agreement offered by the related federal insurer,
to the extent such approval was required).
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the respective Trustee Mortgage Loan
Files to the Trustee (or the applicable Custodian) and shall inure to the
benefit of the Trustee notwithstanding any restrictive or qualified endorsement
or assignment. Upon the discovery by the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee of a breach of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties to the Trust Agreement, and in
no
event later than two Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Depositor set forth in
Section 2.03(d) to cure or repurchase a Mortgage Loan constitute the sole
remedies available to the Certificateholders or to the Trustee on their behalf
respecting a breach of the representations and warranties contained in this
Section 2.04. It is further understood and agreed that the Depositor shall
be deemed not to have made the representations and warranties in this
Section 2.04 with respect to, and to the extent of, representations and
warranties made, as to the matters covered in this Section 2.04, by the
Servicer in any Servicing Agreement or the Seller in any Sale Agreement assigned
to the Trustee.
It
is
understood and agreed that the Depositor has made no representations or
warranties to the Trust other than those contained in this Section 2.04 and
any Assignment Agreement. GSMC has made no representations or warranties
to the
Trust other than those in any Assignment Agreement, or in any Sale Agreement
under which GSMC is acting as Seller, and no other Affiliate of the Depositor
has made any representations or warranty of any kind to the Trustee or the
Trust. Neither the Depositor, GSMC, nor any of the directors, officers,
employees or agents of either such entity shall be under any liability to
the
Trust or the Certificateholders and all such Persons shall be indemnified
and
held harmless by the Trust for any claims, losses, penalties, forfeitures,
legal
fees and related costs, judgments, and any other costs, fees and expenses
that
such Persons may sustain as a result of or arising out of or based upon any
breach of a representation, warranty or covenant made by any Servicer or
Seller
or any failure by any Servicer or Seller to perform its obligations in strict
compliance with the terms of the related Servicing or Sale Agreement or the
failure of the Securities Administrator or the Trustee to perform its duties
hereunder; provided, however, that this provision shall not protect the
Depositor against any breach of warranties or representations made in
Section 2.04 herein, or the Depositor against any breach of representations
or warranties made in any Assignment Agreement or Sale Agreement.
31
ARTICLE
III
ADMINISTRATION
OF THE TRUST
Section
3.01 The
Collection Accounts; the Master Servicer Account; the Distribution Accounts
and
the Certificate Account.
(a)
Servicer
and Master Servicer Remittances.
(i)
On or
prior to the Closing Date, the Servicers shall have established one or more
separate Collection Accounts as provided in the related Servicing Agreement,
each of which shall be an Eligible Account. All Monthly Payments and other
amounts collected by each Servicer on the Mortgage Loans, shall, to the extent
provided in the related Servicing Agreement, be deposited by such Servicer
within one Business Day of receipt (or within 2 Business Days in the case
of
Liquidation Proceeds, Insurance Proceeds and Condemnation Proceeds) into
the
related Collection Account.
(ii)
On
each Servicer Remittance Date, each Servicer is required to remit to the
Master
Servicer all payments received during the related Due Period or Prepayment
Period in respect of the Mortgage Loans serviced by it, less certain deductions
as described herein and in each Servicing Agreement. The Master Servicer
will
establish and maintain a separate account in its own name in trust for the
benefit of the Certificateholders (the “Master
Servicer Account”)
which
account may be a sub-account of the Certificate Account, and shall be an
Eligible Account for so long as Xxxxx Fargo Bank is both the Master Servicer
and
the Securities Administrator. The amounts remitted by the Servicers to the
Master Servicer shall be credited to the Master Servicer Account.
(iii)
On
each Master Servicer Remittance Date, the Master Servicer shall remit to
the
Securities Administrator the amounts received from the Servicers on the related
Servicer Remittance Date, net of any fees, expenses and other amounts payable
to
the Master Servicer hereunder. The amounts remitted by the Master Servicer
to
the Securities Administrator will be credited to the REMIC I Distribution
Account which will be established and maintained by the Securities
Administrator.
(iv)
On
each Distribution Date, amounts on deposit in the REMIC I Distribution Account
(net of any expenses payable to the Securities Administrator under Section
11.04
hereof or to the Trustee under Section 9.05 hereof) will be allocated by
the
Securities Administrator to pay amounts due on the REMIC I Interests, in
accordance with Section 3.01 of the Trust Agreement. Such amounts will then
be passed through to the Certificate Account for distribution to the
Certificateholders in accordance with Section 3.01 of the Trust
Agreement.
(b)
Accounts.
The
Securities Administrator shall establish and maintain one or more Eligible
Accounts in its own name in trust for the benefit of the Certificateholders.
The
account held by the REMIC that directly owns the Mortgage Loans shall be
the
“REMIC
I Distribution Account”
which
account may be a sub-account of the Certificate Account. In addition, the
Securities Administrator shall establish and maintain an account for the
benefit
of the Certificateholders into which it shall deposit all amounts to be
distributed on each Distribution Date (the “Certificate
Account”).
Each
such account shall be an Eligible Account. On each Distribution Date, the
Securities Administrator shall deposit into the REMIC I Distribution Account
the
following amounts, to the extent not previously deposited therein:
32
(i)
all
amounts remitted by the Master Servicer to the Securities Administrator pursuant
to Section 3.01(a)(iii);
(ii)
all
Monthly Advances made pursuant to Section 3.05; and
(iii)
the
amount (if any) required to effect a redemption in accordance with the terms
of
the Trust Agreement and received from the Master Servicer or the
Depositor.
(c)
Deposits.
In the
event a Servicer or the Securities Administrator has remitted to the Master
Servicer Account or to the REMIC I Distribution Account, respectively, in
error,
any amount not required to be remitted in accordance with the definition
of
Available Distribution Amount, such party may at any time direct the Master
Servicer or the Securities Administrator, as applicable, to withdraw such
amount
from such account for repayment to such Servicer or Master Servicer, as
applicable, by delivery of an Officer’s Certificate to the Master Servicer or
the Securities Administrator which describes the amount deposited in error
and
the Master Servicer or the Securities Administrator, as applicable, shall
withdraw such amount from the Master Servicer Account or the REMIC I
Distribution Account, as applicable, and pay such amount as directed, but
only
to the extent it agrees that the amount so described was deposited in
error.
(d)
Withdrawal.
On each
Distribution Date, the Securities Administrator shall transfer the Available
Distribution Amount on deposit in the REMIC I Distribution Account to the
Certificate Account in accordance with the amounts set forth in the statement
prepared pursuant to Section 4.01 and shall distribute such amounts to
holders of the Regular Interests and Residual Interest of the applicable
REMICs,
in accordance with Article III of the Trust Agreement, in the order of
priority set forth therein.
(e)
Accounting.
The
Master Servicer shall keep and maintain separate accounting (to the extent
provided to it by each Servicer), on a Mortgage Loan by Mortgage Loan basis,
for
the purpose of justifying any payment to and from the Master Servicer Account.
No later than 21 days after each Distribution Date, the Master Servicer shall,
upon written request, forward to the Depositor and the Securities Administrator,
a statement setting forth the balance of the Master Servicer Account as of
the
close of business on the last day of the month of the Distribution Date and
showing, for the one calendar month covered by the statement, any deposits
and
or withdrawals from the Master Servicer Account.
(f)
Investments
by the Master Servicer or the Securities Administrator.
Other
than during the Master Servicer Investment Period, the Depositor shall direct
the investment of funds in the Certificate Account in one or more Permitted
Investments. Absent such direction, the Securities Administrator shall invest
such funds during such period in the Xxxxx Fargo Advantage Prime Investment
Money Market Fund so long as such fund is a Permitted Investment. All income
and
gain realized from any such investment of amounts in the Master Servicer
Account
shall be for the benefit of the Master Servicer and shall be subject to its
withdrawal on order from time to time, and shall not be part of the Trust
Estate. All income and gain realized from any such investment of amounts
in the
Certificate Account shall be for the benefit of the Securities Administrator
and
shall be subject to its withdrawal on order from time to time. In the event
of a
loss or reduction in the amount to be remitted by the Master Servicer to
the
Securities Administrator on the Master Servicer Remittance Date or the amount
to
be remitted by the Securities Administrator on the Distribution Date because
of
a loss on a Permitted Investment, the Master Servicer or the Securities
Administrator, as applicable, shall be required to deposit the amount of
such
loss into the Master Servicer Account or the Certificate Account, as applicable,
within one Business Day of realization of such loss from its own funds without
reimbursement.
33
(g)
Compensating
Interest.
The
amount of the Master Servicing Fee payable to the Master Servicer in respect
of
any Distribution Date shall be reduced by the amount of any Compensating
Interest Payment for such Distribution Date, but only to the extent such
Compensating Interest Payment is not actually made by a Servicer on the
applicable Servicer Remittance Date. Such amount shall not be treated as
an
Advance and shall not be reimbursable to the Master Servicer.
Section
3.02 Filings
with the Commission.
(a)
As
further set forth in Section 8.01(e), the Master Servicer and the Securities
Administrator shall deliver (and the Master Servicer and Securities
Administrator shall cause any Additional Servicer engaged by it to deliver)
to
the Depositor and the Securities Administrator on or before March 15 of each
year, commencing in March 2008, an officer’s certificate, substantially in the
form of Exhibit H and Exhibit I hereto, respectively, stating, as to the
signer
thereof, that (i) a review of such party’s activities during the preceding
calendar year or portion thereof and of such party’s performance under this
Agreement, or such other applicable agreement in the case of an Additional
Servicer, has been made under such officer’s supervision and (ii) to the best of
such officer’s knowledge, based on such review, such party has fulfilled all its
obligations under this Agreement, or such other applicable agreement in the
case
of an Additional Servicer, in all material respects throughout such year
or
portion thereof, or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure known to such officer
and
the nature and status thereof. Promptly after receipt of each such officer’s
certificate, the Depositor shall review such officer’s certificate and consult
with each such party, as applicable, as to the nature of any failures by
such
party, in the fulfillment of any of such party’s obligations hereunder or, in
the case of an Additional Servicer, under such other applicable
agreement.
On
or
before March 15th
of each
calendar year, beginning with March 15, 2008, until a Form 15 Suspension
Notification is filed with respect to the relevant securitization (as GSMC
shall
confirm to the Custodians), each Custodian shall deliver to the Trustee,
the
Securities Administrator and the Depositor a report regarding such Custodian’s
assessment of compliance with the Relevant Servicing Criteria identified
in
Exhibit J attached hereto, as of and for the period ending the end of the
fiscal
year ending no later than December 31 of the year prior to the year of delivery
of the report, with respect to asset-backed security transactions taken as
a
whole in which such Custodian is performing any of the Relevant Servicing
Criteria specified in Exhibit J and that are backed by the same asset type
backing such asset-backed securities, and a registered public accounting
firm’s
attestation report on such assessment of compliance. Each such report shall
include (i) a statement of the party’s responsibility for assessing compliance
with the servicing criteria applicable to such party, (ii) a statement that
such
party used the criteria identified in Item 1122(d)(4)(i) and Item 1122(d)(4)(ii)
of Regulation AB (as defined herein) to assess compliance with the applicable
servicing criteria, (iii) disclosure of any material instance of noncompliance
identified by such party, and (iv) a statement that a registered public
accounting firm has issued an attestation report on such party’s assessment of
compliance with the applicable servicing criteria. To the extent that any
Custodian engages any Subcontractor in connection with the performance of
any of
its material duties under this Agreement, such Custodian shall promptly notify
the Depositor in writing of such engagement. To the extent the Depositor
notifies such Custodian that it has determined that such affiliates or third
party vendors are participating in the servicing function with respect to
the
Mortgage Loans within the meaning of Item 1122 of Regulation AB, such Custodian
shall require such affiliates or third party vendors to prepare a separate
annual assessment and attestation report, as contemplated by this
paragraph.
34
The
Master Servicer shall enforce any obligation of the Servicers, to the extent
set
forth in the related Servicing Agreement, to deliver to the Master Servicer
an
annual statement of compliance within the time frame set forth in, and in
such
form and substance as may be required pursuant to, the related Servicing
Agreement The Master Servicer shall include such annual statements of compliance
with its own annual statement of compliance to be submitted to the Securities
Administrator pursuant to this Section.
(b)
The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter within four Business Days after the occurrence of an
event
requiring disclosure in a current report on Form 8-K (each such event, a
“Reportable
Event”),
and
if requested by the Depositor, the Master Servicer shall sign on behalf of
the
Depositor and the Securities Administrator shall prepare and file with the
Commission any Form 8-K, as required by the Exchange Act. Any disclosure
or
information related to a Reportable Event or that is otherwise required to
be
included on Form 8-K (“Form
8-K Disclosure Information”)
shall
be determined and prepared by and at the direction of the Depositor pursuant
to
this Section 3.02 and the Securities Administrator shall have no duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in this Section
3.02.
As
set
forth on Exhibit K hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than the end of business on the second
Business Day after the occurrence of a Reportable Event (i) certain parties
to
the GSR Mortgage Loan Trust 2007-AR2 Mortgage Pass-Through Certificates,
Series
2007-AR2 transaction shall be required to provide to the Securities
Administrator and Depositor, to the extent known, in form compatible with
the
Commission’s Electronic Data Gathering and Retrieval System (“XXXXX”), or in
such other form as otherwise agreed upon by the Securities Administrator
and
such party, the form and substance of any Form 8-K Disclosure Information,
if
applicable and (ii) the Depositor shall approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information. The Depositor shall be responsible for any reasonable fees and
expenses assessed or incurred by the Securities Administrator in connection
with
including any Form 8-K Disclosure Information on Form 8- K pursuant to this
paragraph.
35
After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a draft copy of the Form 8-K to the Depositor for review.
No
later than 12:00 noon New York City time on the fourth Business Day after
the
Reportable Event, a duly authorized representative of the Master Servicer
in
charge of the master servicing function shall sign the Form 8-K and return
such
signed Form 8-K to the Securities Administrator, and no later than 5:00 p.m.
New
York City time on such Business Day the Securities Administrator shall file
such
Form 8-K with the Commission. If a Form 8-K cannot be filed on time or if
a
previously filed Form 8-K needs to be amended, the Securities Administrator
will
follow the procedures set forth in Section 3.02(e). Promptly (but no later
than
one Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website (located at xxx.xxxxxxx.xxx)
a final
executed copy of each Form 8-K prepared by the Securities Administrator.
The
signing party at the Master Servicer can be contacted at 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Client Manager, GSR 2007-AR2.
The parties to this Agreement acknowledge that the performance by the Securities
Administrator of its duties under this Section 3.02(b) related to the timely
preparation and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 3.02. The Securities Administrator shall have no liability for any
loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 8-K, where such failure results from
the
Securities Administrator’s inability or failure to receive on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
(c)
Within fifteen days after each Distribution Date (subject to permitted
extensions under the Exchange Act), the Securities Administrator shall prepare
and file, and the Master Servicer shall sign on behalf of the Depositor and
file
with the Commission any distribution report on Form 10-D required by the
Exchange Act, in form and substance as required by the Exchange Act. The
Securities Administrator shall file each Form 10-D with a copy of the related
Monthly Statement attached thereto. Any disclosure in addition to the monthly
statement that is required to be included on Form 10-D (“Additional Form 10-D
Disclosure”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or
prepare
any Additional Form 10-D Disclosure, except as set forth in this Section
3.02.
As
set
forth on Exhibit L hereto, within five calendar days after the related
Distribution Date, (i) certain parties to the GSR Mortgage Loan Trust 2007-AR2
Mortgage Pass-Through Certificates, Series 2007-AR2 transaction shall be
required to provide to the Securities Administrator and the Depositor, to
the
extent known, in XXXXX-compatible form, or in such other form as otherwise
agreed upon by the Securities Administrator and such party, the form and
substance of any Additional Form 10-D Disclosure, if applicable and (ii)
the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Depositor shall be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with any Additional
Form
10-D Disclosure on Form 10-D pursuant to this Section 3.02(c).
36
After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a draft copy of the Form 10-D to the Depositor for review.
No
later than two Business Days following the tenth calendar day after the related
Distribution Date, a duly authorized representative of the Master Servicer
in
charge of the master servicing function shall sign the Form 10-D and return
such
signed Form 10-D to the Securities Administrator and Depositor, and no later
than 5:00 p.m. New York City time on the fifteenth calendar day after such
Distribution Date the Securities Administrator shall file such Form 10-D
with
the Commission. If a Form 10-D cannot be filed on time or if a previously
filed
Form 10-D needs to be amended, the Securities Administrator will follow the
procedures set forth in Section 3.02(e). Promptly (but no later than one
Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website (located at xxx.xxxxxxx.xxx)
a final
executed copy of each Form 10-D prepared by the Securities Administrator.
The
signing party at the Master Servicer can be contacted at 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Client Manager, GSR 2007-AR2.
Each party to this Agreement acknowledges that the performance by the Securities
Administrator of its duties under this Section 3.02(c) related to the timely
preparation and filing of Form 10-D is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 3.02. The Securities Administrator shall have no liability for any
loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-D, where such failure results
from the Securities Administrator’s inability or failure to receive on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 10-D, not resulting from its own negligence,
bad
faith or willful misconduct.
Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents
to the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the fifth calendar day
after
the related Distribution Date with respect to the filing of a report on Form
10-D, if the answer to the questions should be no. The Securities
Administrator shall be entitled to rely on such representations in preparing,
executing and/or filing any such report.
(d)
Within 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “10-K
Filing Deadline”)
(it
being understood that the fiscal year for the Trust ends on December 31 of
each
year), commencing in March 2008, the Securities Administrator shall prepare
and
file on behalf of the Depositor an annual report on Form 10-K, in form and
substance as required by the Exchange Act. Each such Form 10-K shall include
the
following items, in each case to the extent they have been delivered to the
Securities Administrator within the applicable time frames set forth in this
Agreement and the related Servicing Agreement: (i) an annual compliance
statement for each Servicer, each Additional Servicer, the Master Servicer
and
the Securities Administrator (each, a “Reporting
Servicer”)
as
described under Section 3.02(a), (ii)(A) the annual reports on assessment
of
compliance with servicing criteria for each Reporting Servicer, as described
under Section 8.01(e) and Section 11.01(c), and (B) if each Reporting Servicer’s
report on assessment of compliance with servicing criteria described under
Section 8.01(e) and Section 11.01(c) identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or
if each
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 8.01(e) and Section 11.01(c) is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation why such report is not included, (iii)(A) the registered public
accounting firm attestation report for each Reporting Servicer, as described
under Section 8.01(f) and Section 11.01(d), and (B) if any registered public
accounting firm attestation report described under Section 8.01(f) and Section
11.01(d) identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such
Form
10-K, disclosure that such report is not included and an explanation why
such
report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described
in
Section 3.02(f). Any disclosure or information in addition to the disclosure
or
information specified in items (i) through (iv) above that is required to
be
included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Securities Administrator shall have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except as set forth in this Section 3.02(d).
37
As
set
forth on Exhibit M hereto, no later than March 1 of each year that the Trust
is
subject to the Exchange Act reporting requirements, commencing in 2008, (i)
certain parties to the GSR Mortgage Loan Trust 2007-AR2 Mortgage Pass-Through
Certificates, Series 2007-AR2 transaction shall be required to provide to
the
Securities Administrator and the Depositor, to the extent known, in
XXXXX-compatible form, or in such other form as otherwise agreed upon by
the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable and (ii) the Depositor shall
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor
shall be responsible for any reasonable fees and expenses assessed or incurred
by the Securities Administrator in connection with including any Additional
Form
10-K Disclosure on Form 10-K pursuant to this Section 3.02(d).
After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a draft copy of the Form 10-K to the Depositor for review.
No
later than 12:00 noon New York City time on the fourth Business Day prior
to the
10-K Filing Deadline, a senior officer of the Depositor shall sign the Form
10-K
and return such signed Form 10-K to the Securities Administrator. If a Form
10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Securities Administrator will follow the procedures set forth in 3.02(e).
Promptly (but no later than one Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website
located
at (located at xxx.xxxxxxx.xxx) a final executed copy of each Form 10-K prepared
by the Securities Administrator. The parties to this Agreement acknowledge
that
the performance by the Securities Administrator of its duties under this
Section
3.02(d) related to the timely preparation and filing of Form 10-K is contingent
upon such parties (and any Additional Servicer or Servicing Function
Participant) strictly observing all applicable deadlines in the performance
of
their duties under this Section 3.02(d), Section 3.02(f), Section 3.02(a),
Sections 8.01(e) and (f) and Sections 11.01(c) and (d). The Securities
Administrator shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or
timely
file such Form 10-K, where such failure results from the Securities
Administrator’s inability or failure to receive on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 10-K, not resulting from its own negligence, bad faith
or
willful misconduct.
38
Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents
to the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing no later than March 15th
if the
answer to the questions should be no. The Securities Administrator shall
be entitled to rely on such representations in preparing, executing and/or
filing any such report.
(e)
Prior
to January 30 of the first year in which the Securities Administrator is
able to
do so under applicable law, the Master Servicer shall sign and the Securities
Administrator shall prepare and file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust under the Exchange Act.
In
the
event that the Securities Administrator becomes aware that it will be unable
to
timely file with the Commission all or any required portion of any Form 8-K,
10-D or 10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the delivery
deadlines set forth in this Agreement or for any other reason, the Securities
Administrator will immediately notify the Depositor. In the case of Form
10-D
and 10-K, the parties to this Agreement will cooperate and cause such other
Servicers or Servicing Function Participants, as applicable, to cooperate,
to
prepare and file a Form 12b-25 and a 10-D/A and 10-K/A, as applicable, pursuant
to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed
Form
10-D or 10-K needs to be amended, the Securities Administrator shall notify
the
Depositor and prepare any necessary 10-D/A or 10-K/A. Any Form 15, Form 12b-25
or any amendment to Form 8-K or 10-D shall be signed by a duly authorized
representative of the Master Servicer in charge of the master servicing
function. Any amendment to Form 10-K shall be signed by the Depositor. The
parties to this Agreement acknowledge that the performance by the Securities
Administrator of its duties under this Section 3.02(e) related to the timely
preparation and filing of Form 15, a Form 12b-25 or any amendment to Form
8-K,
10-D or 10-K is contingent upon each such party performing its duties under
this
Section. The Securities Administrator shall have no liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from the
Securities Administrator’s inability or failure to receive on a timely basis,
any information from or on behalf of any other party hereto needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments
to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith
or
willful misconduct.
39
(f)
Each
Form 10-K shall include a Xxxxxxxx-Xxxxx Certification, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Servicer, the Securities
Administrator and the Master Servicer shall cause any Servicing Function
Participant engaged by it to provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying
Person”),
by
March 15 of each year in which the Trust is subject to the reporting
requirements of the Exchange Act and otherwise within a reasonable period
of
time upon request, a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit
I,
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The senior officer of the Depositor shall serve as the
Certifying Person on behalf of the Trust. In the event the Master Servicer,
the
Securities Administrator, the Trustee or any Servicing Function Participant
engaged by parties is terminated or resigns pursuant to the terms of this
Agreement, or any applicable sub-servicing agreement, as the case may be,
such
party shall provide a Back-Up Certification to the Certifying Person pursuant
to
this Section 3.02(f) with respect to the period of time it was subject to
this
Agreement or any applicable sub-servicing agreement, as the case may
be.
The
Master Servicer shall enforce any obligation of the Servicers, to the extent
set
forth in the related Servicing Agreement, to deliver to the Master Servicer
a
certification similar to the Back-Up Certification within the time frame
set
forth in, and in such form and substance as may be required pursuant to,
the
related Servicing Agreement.
(g)
The
Securities Administrator shall promptly file, and exercise its reasonable
best
efforts to obtain a favorable response to, no-action requests, or other
appropriate exemptive relief with the Commission seeking the usual and customary
exemption from such reporting requirements granted to issuers of securities
similar to the Certificates if and to the extent the Depositor shall deem
any
such relief to be necessary or appropriate. Unless otherwise advised by the
Depositor, the Securities Administrator shall assume that the Depositor is
in
compliance with the preceding sentence. In no event shall the Securities
Administrator have any liability for the execution or content of any document
required to be filed by the 1934 Act. The Depositor agrees to promptly furnish
to the Securities Administrator, from time to time upon request, such further
information, reports, and financial statements within its control related
to the
Trust Agreement and the Mortgage Loans as the Depositor reasonably deems
appropriate to prepare and file all necessary reports with the
Commission.
Section
3.03 Securities
Administrator to Cooperate; Release of Mortgage Files.
The
Trustee, shall, if requested by any Servicer, execute a power of attorney
pursuant to which such Servicer, on behalf of the Trustee, shall authorize,
make, constitute and appoint designated officers of such Servicer with full
power to execute in the name of the Trustee (without recourse, representation
or
warranty) any deed of reconveyance, any substitution of trustee documents
or any
other document to release, satisfy, cancel or discharge any Mortgage or Mortgage
Loan serviced by such Servicer upon its payment in full or other liquidation;
provided, however, that such power of appointment shall be limited to the
powers
limited above; and provided, further, that such Servicer shall promptly forward
to the Trustee for its files copies of all documents executed pursuant to
such
power of appointment.
40
Pursuant
to the Custodial Agreement, any Servicer may submit a Request for Release
to
have delivered to it the related Trustee Mortgage Loan File and a release
of the
Mortgaged Premises from the lien of the Mortgage. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be
chargeable to a Collection Account, the Master Servicer Account or the
Certificate Account.
Upon
receipt of any other Request for Release for purposes of servicing a Mortgage
Loan, including but not limited to, collection under any Insurance Policy,
title
insurance policy, primary mortgage insurance policy, flood insurance policy
or
hazard insurance policy or to effect a partial release of any Mortgaged Premises
from the lien of the Mortgage, the Securities Administrator, on behalf of
the
Trustee, within five Business Days of receipt of such Request for Release,
shall
release, or shall cause the related Servicer to cause the applicable Custodian
to release, the related Trustee Mortgage Loan File to such Servicer. Upon
receipt of an Officer’s Certificate of the Servicer stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into
the
Collection Account or the Certificate Account have been so deposited, or
that
such Mortgage Loan has become an REO Property, the related Trustee Mortgage
Loan
File shall be released by the Trustee (or the applicable Custodian) to such
Servicer.
Any
Servicer may execute a written certification to have delivered to it, pursuant
to the Custodial Agreement, court pleadings, requests for trustee’s sale or
other documents necessary to the foreclosure or trustee’s sale in respect of a
Mortgaged Premises or to any legal action brought to obtain judgment against
any
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity.
Section
3.04 Amendments
to Servicing Agreement.
Each
Servicing Agreement may be amended or supplemented from time to time by the
related Servicer, the Master Servicer, the Securities Administrator and the
Trustee without the consent of any of the Certificateholders to (a) cure
any ambiguity, (b) correct or supplement any provisions therein which may
be inconsistent with any other provisions therein, (c) modify, eliminate or
add to any of its provisions to such extent as shall be necessary or appropriate
to maintain the qualification of the Trust (or certain assets thereof) as
one or
more REMICs, at all times that any Certificates are outstanding or (d) make
any other provisions with respect to matters or questions arising under such
Servicing Agreement or matters arising with respect to the servicing of the
Mortgage Loans which are not covered by such Servicing Agreement which shall
not
be inconsistent with the provisions of such Servicing Agreement, provided
that
such action shall not adversely affect in any material respect the interests
of
any Certificateholder. Any such amendment or supplement shall be deemed not
to
adversely affect in any material respect any Certificateholder if there is
delivered to the Trustee and the Securities Administrator written notification
from each Rating Agency that rated the applicable Certificates to the effect
that such amendment or supplement will not cause that Rating Agency to reduce
or
qualify the then current rating assigned to such Certificates, as well as
an
Opinion of Counsel (at the expense of the applicable Servicer) that such
amendment or supplement will not result in the loss by the Trust or the assets
thereof of REMIC status or result in the imposition of any taxes on the Trust
or
any REMIC.
41
Each
Servicing Agreement may also be amended from time to time by the related
Servicer, the Master Servicer, the Securities Administrator and the Trustee
with
the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of such Servicing Agreement or
of
modifying in any manner the rights of the Holders of Certificates; provided,
however,
that no
such amendment shall (A) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (B) adversely affect in any material respect the interests of
the Holders of any Class of Certificates, or (C) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to
any
such amendment, unless each Holder of a Certificate affected by such amendment
consents. For purposes of the giving or withholding of consents pursuant
to this
Section 3.04, Certificates registered in the name of the Depositor or an
Affiliate thereof shall be entitled to Voting Rights with respect to matters
affecting such Certificates.
Upon
delivery of a written request to the Trustee, the Securities Administrator
and/or the Master Servicer together with a certification from the related
Servicer that any such amendment or supplement is permitted hereby, the
Securities Administrator and Trustee shall join in any such amendment or
supplement.
Promptly
after the execution of any such amendment the Securities Administrator shall
notify each Certificateholder and the Master Servicer of such amendment and,
upon written request, shall furnish a copy of such amendment to each
Certificateholder.
It
shall
not be necessary for the consent of Certificateholders under this
Section 3.04 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The
manner of obtaining such consents and of evidencing the authorization of
the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Securities Administrator may prescribe. Prior to consenting
to any amendment pursuant to this Section 3.04, the Trustee, the Securities
Administrator and the Master Servicer shall be entitled to receive an Opinion
of
Counsel (at the expense of the applicable Servicer) that such amendment is
authorized and permitted pursuant to the terms of this Trust Agreement and
the
applicable Servicing Agreement.
Section
3.05 Monthly
Advances by Master Servicer or Trustee.
(a)
Under
the terms of each Servicing Agreement, on the Business Day prior to each
Servicer Remittance Date, the related Servicer is obligated to make a Monthly
Advance with respect to any delinquencies as of the related Distribution
Date,
unless such Servicer furnishes to the Master Servicer, an Officer’s Certificate
evidencing the determination by such Servicer, in its reasonable judgment,
that
such Monthly Advance would be non-recoverable from Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds or otherwise with respect to such
Mortgage Loan (a “Non-Recoverability
Certificate”).
If
(i) a Servicer reports a delinquency on a Remittance Report, and
(ii) such Servicer, by 11:00 a.m. (New York Time) on the related
Distribution Date, neither makes a Monthly Advance nor provides the Securities
Administrator and the Master Servicer or Trustee, as applicable, with a
Non-Recoverability Certificate with respect to such delinquency, then subject
to
paragraph (b) below, the Master Servicer shall deposit, from its own funds,
on the Master Servicer Remittance Date, the amount of such Monthly Advance
not
made by the Servicer into the Certificate Account for distribution to
Certificateholders as provided in the Trust Agreement. If the Master Servicer
fails to make a Monthly Advance as required by the preceding sentence, then
the
Securities Administrator shall notify the Trustee of such failure, and the
Trustee (as successor to the Master Servicer pursuant to Section 8.06) shall
deposit, from its own funds, on the Distribution Date, the amount of such
Monthly Advance into the Certificate Account. Notwithstanding the foregoing,
if
either the Master Servicer or the Trustee (as successor to the Master Servicer
pursuant to Section 8.06), in their reasonable judgment, determine that such
Monthly Advance would be non-recoverable from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or otherwise with respect to such Mortgage Loan,
then neither the Master Servicer nor the Trustee, as applicable, shall be
obligated to make such Monthly Advance.
42
(b)
Each
Servicer is obligated under the applicable Servicing Agreement to remit to
the
Master Servicer the required remittance on each Servicer Remittance Date.
If
(i) a Servicer fails to remit such remittance on any Servicer Remittance
Date and (ii) such failure is not cured by 11 a.m. (New York Time) on the
related Master Servicer Remittance Date, then, to the extent permitted by
the
related Servicing Agreement, the Master Servicer shall withdraw the amount
of
such required remittance from such Collection Account, to the extent that
such
amount is on deposit in such Collection Account, and shall deposit such amount
in the Certificate Account.
(c)
All
Monthly Advances (together with, in the case of the Master Servicer and the
Trustee, interest thereon at a rate equal to the prevailing Prime Rate
plus
2.0%)
shall be reimbursable to the related Servicer, the Master Servicer or the
Trustee, as the case may be, on a first priority basis from deposits to the
Collection Account of late collections, Insurance Proceeds, Liquidation Proceeds
and Condemnation Proceeds from the related Mortgage Loan as to which a Monthly
Advance has been made. The Master Servicer or the Trustee’s right to
reimbursement as provided in this paragraph (c) shall not negate its
obligation to continue to make Monthly Advances as provided in
paragraph (a) of this Section 3.05. To the extent Monthly Advances are
not recoverable as set forth in the first sentence of this paragraph (c),
the Master Servicer or the Trustee, as the case may be, shall be entitled
to
recover such Monthly Advances as provided in Section 3.01(b).
(d)
To
the extent that any Servicer is required to pay penalty interest pursuant
to the
related Servicing Agreement, and the Master Servicer or the Trustee makes
any
Monthly Advance, the Master Servicer or the Trustee, as applicable, in its
individual capacity shall be entitled to retain such penalty
interest.
43
Section
3.06 Enforcement
of Servicing Agreement.
Subject
to Article VIII hereof, the Master Servicer agrees to comply with the terms
of each Servicing Agreement and to enforce the terms and provisions thereof
against the related Servicer for the benefit of the
Certificateholders.
ARTICLE
IV
REPORTING/REMITTING
TO CERTIFICATEHOLDERS
Section
4.01 Statements
to Certificateholders.
(a)
Distribution
Date Statement.
On each
Distribution Date, the Securities Administrator shall prepare a statement
as to
such distribution (the “Distribution
Statement”),
based
solely on information provided by the Servicers in the related Remittance
Reports, and on each Distribution Date, such statement will be made available
at
a website located at xxx.xxxxxxx.xxx to the Depositor, any Interest Rate
Cap
Counterparty and each Certificateholder, setting forth:
(i)
the
class factor for each Class of Certificates;
(ii)
the
aggregate Scheduled Principal Balance of each Pool and/or Group of Mortgage
Loans;
(iii)
the
Available Distribution Amount, the Aggregate Principal Distribution Amount
and
the Principal Prepayment Amount for such Distribution Date;
(iv)
the
amount of such distribution to the Holders of Certificates of each Class
to be
applied to reduce the Certificate Balance thereof, separately identifying
the
amounts, if any, of any Payoffs, Principal Prepayments made by the Mortgagor,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds;
(v)
the
amount of distributions to the Holders of Certificates of each Class allocable
to interest, and the Certificate Rate applicable to each Class (separately
identifying (A) the amount of such interest accrued during the calendar
month preceding the month of such Distribution Date, and (B) the amount of
interest from previous calendar months;
(vi)
the
aggregate amount of the Servicing Fees and the Master Servicing Fee paid
as
required under the Servicing Agreements and the Trust Agreement and any other
fees or expenses paid out of the Available Distribution Amount for such
Distribution Date as permitted hereunder;
(vii)
if
applicable, the aggregate amount of outstanding Monthly Advances included
in
such distribution, the aggregate amount of Monthly Advances reimbursed during
the calendar month preceding the Distribution Date (including such amounts
reimbursed to the Master Servicer or Trustee) and the aggregate amount of
unreimbursed Monthly Advances at the close of business on such Distribution
Date;
44
(viii)
LIBOR for such Distribution Date;
(ix)
the
Certificate Rate for each Class of Certificates for such Distribution
Date;
(x)
the
amount of any Basis Risk Shortfalls on any Floating Rate Certificates that
have
the benefit of an Interest Rate Cap Agreement;
(xi)
the
amount of any Interest Rate Cap Amounts on any such Certificates referenced
in
clause (xii) above;
(xii)
the
amounts, if any, deposited into any Basis Risk Reserve Fund on such Distribution
Date, and the balance of each Basis Risk Reserve Fund, after such deposits,
on
such Distribution Date;
(xiii)
the number and aggregate Scheduled Principal Balance of the Mortgage Loans
outstanding as of the last Business Day of the calendar month preceding such
Distribution Date;
(xiv)
the
number and aggregate Scheduled Principal Balance of Mortgage Loans as reported
to the Securities Administrator by the Servicer, (A) that are current, 30
days contractually delinquent, 60 days contractually delinquent, 90 days
contractually delinquent or 120 days or more contractually delinquent (each
to
be calculated using the Mortgage Bankers Association (MBA) method), (B) as
to which foreclosure proceedings have been commenced, (C) as to which the
Mortgagor is subject to a bankruptcy proceeding and (D) secured by REO
Properties;
(xv)
with
respect to any mortgaged property acquired on behalf of Certificateholders
through foreclosure or deed in lieu of foreclosure during the preceding calendar
month, the Scheduled Principal Balance of the related Mortgage Loan as of
the
last Business Day of the calendar month preceding the Distribution
Date;
(xvi)
the
aggregate Certificate Balance of each Class of Certificates (and, in the
case of
any Certificate with no Certificate Balance, the notional amount of such
Class)
after giving effect to the distribution to be made on such Distribution Date,
and separately identifying any reduction thereof on account of Realized
Losses;
(xvii)
the aggregate amount of (A) Payoffs and Principal Prepayments made by
Mortgagors, (B) Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds, and (C) Realized Losses incurred during the related Prepayment
Period;
45
(xviii)
the aggregate amount of any Mortgage Loan that has been repurchased from
the
Trust;
(xix)
the
aggregate Shortfall, if any, allocated to each Class of Certificates at the
close of business on such Distribution Date;
(xx)
the
Certificate Rate for each Class of Certificates applicable to such Distribution
Date; and
(xxi)
the
Senior Collateral Group Percentages, the Senior Prepayment Percentages and
the
Subordinate Percentages, if any, for such Distribution Date.
In
the
case of information furnished pursuant to clauses (i) through (iii) above,
the amounts shall be expressed, with respect to any Certificate, as a dollar
amount per $1,000 denomination; provided,
however,
that if
any Class of Certificates does not have a Certificate Balance, then the amounts
shall be expressed as a dollar amount per 10% Percentage Interest.
In
addition to the Distribution Statement that includes the information listed
above, the Securities Administrator shall prepare and file a statement including
such
other information as is required by Form 10-D, including, but not limited
to,
the information required by Item 1121 (§229.1121) of Regulation AB.
In
addition to the Distribution Statement specified above, the Securities
Administrator shall prepare and make available to each Certificateholder
(with
respect to clauses (i) and (ii) below) and each Holder of a Residual Certificate
(with respect to clauses (iii) and (iv) below), if any, on each Distribution
Date a statement setting forth: (i) in the case of a Trust with respect to
which
one or more REMIC elections have been or will be made, any reports required
to
be provided to Holders by the REMIC Provisions; (ii) such other customary
information as the Securities Administrator deems necessary or desirable,
or
which a Certificateholder reasonably requests, to enable Certificateholders
to
prepare their tax returns; (iii) the amounts actually distributed with respect
to the Residual Certificates of such Class on such Distribution Date; and
(iv)
the aggregate Certificate Balance, if any, of the Residual Certificates of
such
Class after giving effect to any distribution made on such Distribution Date,
separately identifying the amount of Realized Losses allocated to such Residual
Certificates of such Class on such Distribution Date.
Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall prepare and furnish a statement, containing the information
set forth in clauses (i) through (iv) above (based on information provided
by the Master Servicer), to each Person who at any time during the calendar
year
was a Holder that requests such statement, aggregated for such calendar year
or
portion thereof during which such Person was a Certificateholder. Such
obligation of the Securities Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Master Servicer or the Securities Administrator pursuant
to any
requirements of the Code as from time to time are in force.
46
Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall prepare and shall furnish to each Person who at any time
during the calendar year was a Holder of a Residual Certificate a statement,
upon request, containing the information provided pursuant to the second
preceding paragraph aggregated for such calendar year thereof during which
such Person was a Certificateholder. Such obligation of the Securities
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time
are
in force.
Section
4.02 Remittance
Reports and other Reports from the Servicers.
To
the
extent received from any Servicer and the Master Servicer, the Securities
Administrator shall make the information in each Remittance Report available
to
the Depositor, the Trustee, or any Certificateholder upon written request
therefor. In addition, upon written request from the Depositor, the Trustee,
the
Securities Administrator or any Certificateholder (such party, the “Requesting
Party”),
the
Securities Administrator shall use commercially reasonable efforts to obtain
from each Servicer and subsequently provide to the Requesting Party any other
reports or information that may be obtained by the Securities Administrator
from
any Servicer pursuant to the related Servicing Agreement; provided, however,
that if the Securities Administrator incurs costs pursuant to the Servicing
Agreement with respect to any particular request, the Securities Administrator
shall be entitled to reimbursement from the Requesting Party for such costs,
together with any other reasonable costs incurred by it for obtaining or
delivering the reports or information specified by such request. Upon the
request of the Depositor, if permitted pursuant to a Sale and Servicing
Agreement, the Master Servicer shall request, on an annual basis beginning
one
year after the Closing Date, copies of the related Servicer’s internal quality
control reports (it being understood that the Master Servicer shall have
no
responsibility for, or be deemed to have, constructive notice of any information
contained therein or determinable therefrom). Neither the Master Servicer,
the
Securities Administrator nor any agent of the Securities Administrator shall
be
under any duty to recalculate, verify or recompute the information provided
to
it under any Servicing Agreement by the applicable Servicer.
Section
4.03 Compliance
with Withholding Requirements.
Notwithstanding
any other provisions of the Trust Agreement, the Securities Administrator
shall
comply with all federal withholding requirements respecting payments of interest
or principal to the extent of accrued original issue discount on Certificates
to
each Holder of such Certificates who (a) is not a “United States person,”
within the meaning of Code Section 7701(a)(30), (b) fails to furnish
its TIN to the Securities Administrator, (c) furnishes the Securities
Administrator an incorrect TIN, (d) fails to report properly interest and
dividends, (e) under certain circumstances, fails to provide the Securities
Administrator or the Certificateholder’s securities broker with a certified
statement, signed under penalties of perjury, that the TIN provided by such
Certificateholder to the Securities Administrator or such broker is correct
and
that the Certificateholder is not subject to backup withholding or
(f) otherwise fails to satisfy any applicable certification requirements
relating to the withholding tax. The consent of such a Certificateholder
shall
not be required for such withholding. In the event the Securities Administrator,
on behalf of the Trustee, does withhold the amount of any otherwise required
distribution from interest payments on the Mortgage Loans (including principal
payments to the extent of accrued original issue discount) or Monthly Advances
thereof to any Certificateholder pursuant to federal withholding requirements,
the Securities Administrator shall indicate with any payments to such
Certificateholders the amount withheld. In addition, if any United States
federal income tax is due at the time a Non-U.S. Person transfers a Residual
Certificate, the Securities Administrator, on behalf of the Trustee, or other
Withholding Agent may (1) withhold an amount equal to the taxes due upon
disposition of such Residual Certificate from future distributions made with
respect to such Residual Certificate to the transferee thereof (after giving
effect to the withholding of taxes imposed on such transferee), and (2) pay
the withheld amount to the Internal Revenue Service unless satisfactory written
evidence of payment by the transferor of the taxes due has been provided
to the
Securities Administrator or such Withholding Agent. Moreover, the Securities
Administrator, on behalf of the Trustee, or other Withholding Agent may
(1) hold distributions on a Residual Certificate, without interest, pending
determination of amounts to be withheld, (2) withhold other amounts, if
any, required to be withheld pursuant to United States federal income tax
law
from distributions that otherwise would be made to such transferee on each
Residual Certificate that it holds, and (3) pay to the Internal Revenue
Service all such amounts withheld.
47
Section
4.04 Reports
of Certificate Balances to The Depository Trust Company.
If
and
for so long as any Certificate is held by The Depository Trust Company, on
each
Distribution Date, the Securities Administrator shall give notice to The
Depository Trust Company (and shall promptly thereafter confirm in writing)
the
following: (a) the amount to be reported pursuant to clause (c) and
(d) of each statement provided to Holders of Certificates pursuant to
Section 4.01 in respect of the next succeeding distribution, (b) the
Record Date for such distribution, (c) the Distribution Date for such
distribution and (d) the aggregate Certificate Balance of each Class of
Certificates to be reported pursuant to clause (i) of the first
paragraph of Section 4.01 in such month.
Section
4.05 Preparation
of Regulatory Reports.
Notwithstanding
any other provision of this Agreement, the Securities Administrator has not
assumed, and shall not by its performance hereunder be deemed to have assumed,
any of the duties or obligations of the Depositor or any other Person with
respect to (a) the registration of the Certificates pursuant to the
Securities Act, (b) the issuance or sale of the Certificates, or
(c) compliance with the provisions of the Securities Act, the Exchange Act,
or any offering circular, applicable federal or state securities or other
laws
including, without limitation, any requirement to update the registration
statement or prospectus relating to the Certificates in order to render the
same
not materially misleading to investors.
Section
4.06 Management
and Disposition of REO Property.
The
Master Servicer shall enforce the obligation of each Servicer under any
Servicing Agreement to dispose of any REO Property acquired by such Servicer
on
behalf of the Trust before the end of the third calendar year following the
calendar year in which the related REO Property was acquired; provided that
the
Master Servicer shall waive such requirement if the Master Servicer, the
Trustee
and the Securities Administrator (a) receive an Opinion of Counsel
(obtained at the expense of the party requesting such Opinion of Counsel)
indicating that, under then-current law, the REMIC may hold such REO Property
for a period longer than three years without threatening the REMIC status
of any
related REMIC or causing the imposition of a tax upon any such REMIC or
(b) such Servicer applies for and is granted an extension of such three
year period pursuant to Code Sections 860G(a)(8) and 856(e)(3) (the
applicable period provided pursuant to such Opinion of Counsel or such Code
Section being referred to herein as an “Extended
Holding Period”).
In
that event, the Master Servicer shall direct such Servicer to sell any REO
Property remaining after such date in an auction before the end of the Extended
Holding Period.
48
ARTICLE
V
THE
INTERESTS AND THE SECURITIES
Section
5.01 REMIC
Interests.
The
Trust
Agreement will set forth the terms of the Regular Interests and Residual
Interest of each REMIC. Unless otherwise specified in the Trust Agreement,
(a) the Regular Interests in each REMIC will be “regular interests” for
purposes of the REMIC Provisions; (b) the Trustee will be the owner of the
Regular Interests in any REMIC held by another REMIC formed pursuant to the
terms of the Trust Agreement, and such Regular Interests may not be transferred
to any person other than a successor trustee appointed pursuant to
Section 8.07 hereof unless the party desiring the transfer obtains a
Special Tax Opinion; and (c) such Regular Interests will be represented by
the respective Interests.
Section
5.02 The
Certificates.
The
Certificates shall be designated in the Trust Agreement. The Certificates
in the
aggregate will represent the entire beneficial ownership interest in the
Trust
Estate. On the Closing Date, the aggregate Certificate Balance of the
Certificates will equal the aggregate Scheduled Principal Balance of the
Mortgage Loans as of the Cut-off Date. The Certificates will be substantially
in
the forms annexed to the Trust Agreement. Unless otherwise provided in the
Trust
Agreement, the Certificates of each Class will be issuable in registered
form,
in denominations of authorized Percentage Interests as described in the
definition thereof. Each Certificate will share ratably in all rights of
the
related Class.
Upon
original issue, the Trustee shall have the Certificates executed and delivered
by the Securities Administrator and the Securities Administrator shall cause
the
Certificates to be authenticated by the Certificate Registrar to or upon
the
order of the Depositor upon receipt by the Trustee of the documents specified
in
Section 2.01. The Certificates shall be executed and attested by manual or
facsimile signature on behalf of the Trustee by an authorized Officer under
its
seal imprinted thereon. Certificates bearing the manual or facsimile signatures
of individuals who were at any time the proper Officers of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided in the Trust Agreement
executed by the Certificate Registrar by manual signature, and such certificate
of authentication shall be conclusive evidence, and the only evidence, that
such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their execution.
49
Section
5.03 Book-Entry
Securities.
(a)
The
Book-Entry Securities will be represented initially by one or more certificates
registered in the name designated by the Clearing Agency. The Depositor and
the
Securities Administrator may for all intents and purposes (including the
making
of payments on the Book-Entry Securities) deal with the Clearing Agency as
the
authorized representative of the Beneficial Owners of the Book-Entry Securities
for as long as those Certificates are registered in the name of the Clearing
Agency. The rights of Beneficial Owners of the Book-Entry Securities shall
be
limited by law to those established by law and agreements between such
Beneficial Owners and the Clearing Agency and Clearing Agency Participants.
The
Beneficial Owners of the Book-Entry Securities shall not be entitled to
certificates for the Book-Entry Securities as to which they are the Beneficial
Owners, except as provided in subsection (c) below. Requests and directions
from, and votes of, the Clearing Agency, as Holder, shall not be deemed to
be
inconsistent if they are made with respect to different Beneficial Owners.
Without the consent of the Depositor, the Trustee and the Securities
Administrator, a Book-Entry Security may not be transferred by the Clearing
Agency except to another Clearing Agency that agrees to hold the Book-Entry
Security for the account of the respective Clearing Agency Participants and
Beneficial Owners.
(b)
Neither the Depositor, the Trustee nor the Securities Administrator will
have
any liability for any aspect of the records relating to or payment made on
account of Beneficial Owners of the Book-Entry Securities held by the Clearing
Agency, for monitoring or restricting any transfer of beneficial ownership
in a
Book-Entry Security or for maintaining, supervising or reviewing any records
relating to such Beneficial Owners.
(c)
A
Book-Entry Security will be registered in fully registered, certificated
form to
Beneficial Owners of Book-Entry Securities or their nominees, rather than
to the
Clearing Agency or its nominee, if (a) the Depositor advises the Securities
Administrator and Trustee in writing that the Clearing Agency is no longer
willing or able to discharge properly its responsibilities as depository
with
respect to the Book-Entry Securities, and the Depositor is unable to locate
a
qualified successor within 30 days, (b) the Depositor, at its option,
elects to terminate the book-entry system operating through the Clearing
Agency
or (c) after the occurrence of an Event of Default, Beneficial Owners
representing at least a majority of the aggregate outstanding Certificate
Balance of the Book-Entry Securities advise the Clearing Agency in writing
that
the continuation of a book-entry system through the Clearing Agency is no
longer
in the best interests of the Beneficial Owners. Upon the occurrence of any
such
event, the Securities Administrator shall notify the Clearing Agency, which
in
turn will notify all Beneficial Owners of Book-Entry Securities through Clearing
Agency Participants, of the availability of certificated Certificates. Upon
surrender by the Clearing Agency or the Book-Entry Custodian of the certificates
representing the Book-Entry Securities and receipt of instructions for
re-registration, the Securities Administrator will reissue the Book-Entry
Securities as certificated Certificates to the Beneficial Owners identified
in
writing by the Clearing Agency. Neither the Depositor, the Trustee nor the
Securities Administrator shall be liable for any delay in the delivery of
such
instructions and may rely conclusively on, and shall be protected in relying
on,
such instructions. Such certificated Certificates shall not constitute
Book-Entry Securities. All reasonable costs associated with the preparation
and
delivery of certificated Certificates shall be borne by the Trust.
50
(d)
The
Securities Administrator is hereby initially appointed as Book-Entry Custodian
with respect to the Book-Entry Securities, and hereby agrees to act as such
in
accordance herewith and in accordance with the agreement that it has with
the
Clearing Agency authorizing it to act as such (it being understood that should
any conflict arise between the provisions hereof and the provisions of the
agreement between the Securities Administrator and the Clearing Agency, the
agreement with the Clearing Agency will control). The Book-Entry Custodian
may,
and, if it is no longer qualified to act as such, the Book-Entry Custodian
shall, appoint, by a written instrument delivered to the Depositor and, if
the
Securities Administrator is not the Book-Entry Custodian, the Securities
Administrator, any other transfer agent (including the Clearing Agency or
any
successor Clearing Agency) to act as Book-Entry Custodian under such conditions
as the predecessor Book-Entry Custodian and the Clearing Agency or any successor
Clearing Agency may prescribe; provided
that the
predecessor Book-Entry Custodian shall not be relieved of any of its duties
or
responsibilities by reason of such appointment of other than the Clearing
Agency. If the Securities Administrator resigns or is removed in accordance
with
the terms hereof, the successor securities administrator, or, if it so elects,
the Clearing Agency shall immediately succeed to its predecessor’s duties as
Book-Entry Custodian. The Depositor shall have the right to inspect, and
to
obtain copies of, any Certificates held as Book-Entry Securities by the
Book-Entry Custodian.
Section
5.04 Registration
of Transfer and Exchange of Certificates.
The
Securities Administrator shall cause to be kept at its Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as
it may
prescribe, the Securities Administrator shall provide for the registration
of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Securities Administrator will initially serve as Certificate Registrar
for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided. The Securities Administrator may appoint
any
other Person to act as Certificate Registrar hereunder.
Subject
to Section 5.05, upon surrender for registration of transfer of any
Certificate at the Corporate Trust Office of the Securities Administrator
or at
any other office or agency of the Securities Administrator maintained for
such
purpose, the Securities Administrator shall execute and the Certificate
Registrar shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class
of a
like aggregate Percentage Interest.
At
the
option of the Certificateholders, each Certificate may be exchanged for other
Certificates of the same Class with the same and authorized denominations
and a
like aggregate Percentage Interest, upon surrender of such Certificate to
be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute and
cause
the Certificate Registrar to authenticate and deliver the Certificates which
the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall (if so required by
the
Securities Administrator) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Securities Administrator
duly executed by, the Holder thereof or his attorney duly authorized in
writing.
51
No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
All
Certificates surrendered for transfer and exchange shall be destroyed by
the
Certificate Registrar.
The
Securities Administrator will cause the Certificate Registrar (unless the
Securities Administrator is acting as Certificate Registrar) to provide notice
to the Securities Administrator of each transfer of a Certificate, and the
Certificate Registrar will provide the Securities Administrator with an updated
copy of the Certificate Register on May 1 and July 1 of each
year.
Section
5.05 Restrictions
on Transfer.
(a)
No
transfer of any Private Certificate shall be made unless that transfer is
made
pursuant to an effective registration statement under the Securities Act
and
effective registration or qualification under applicable state securities
laws,
or is made in a transaction that does not require such registration or
qualification. Any Holder of a Private Certificate shall, and, by acceptance
of
such Private Certificate, does agree to, indemnify the Depositor, the
Certificate Registrar and the Securities Administrator against any liability
that may result if any transfer of such Certificates by such Holder is not
exempt from registration under the Securities Act and all applicable state
securities laws or is not made in accordance with such federal and state
laws.
Neither the Depositor, the Certificate Registrar nor the Securities
Administrator is obligated to register or qualify any Private Certificate
under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of such
Certificates without such registration or qualification. Neither the Certificate
Registrar nor the Securities Administrator shall register any transfer of
a
Private Certificate (other than a Residual Certificate) unless and until
the
prospective transferee provides the Securities Administrator with an agreement
certifying to facts which, if true, would mean that the proposed transferee
is a
Qualified Institutional Buyer (a “QIB
Certificate”),
or,
if the Private Certificate to be transferred is not a Rule 144A Certificate,
a
Transferee Agreement, and in any case unless and until the transfer otherwise
complies with the provisions of this Section 5.05. If so provided in the
Trust Agreement, the prospective transferee will be deemed to have provided
a
QIB Certificate upon acceptance of the Certificate. If a proposed transfer
does
not involve a Rule 144A Certificate, the Securities Administrator or the
Certificate Registrar shall require that the transferor and transferee certify
as to the factual basis for the registration exemption(s) relied upon, and
if
the transfer is made within two years of the acquisition thereof by a
non-Affiliate of the Depositor from the Depositor or an Affiliate of the
Depositor, the Securities Administrator or the Certificate Registrar also
may
require an Opinion of Counsel that such transfer may be made without
registration or qualification under the Securities Act and applicable state
securities laws, which Opinion of Counsel shall not be obtained at the expense
of the Depositor, the Certificate Registrar or the Securities Administrator.
Notwithstanding the foregoing, no QIB Certificate, Transferee Agreement or
Opinion of Counsel shall be required in connection with the initial transfer
of
the Private Certificates and no Opinion of Counsel shall be required in
connection with the transfer of the Private Certificates by a broker or dealer,
if such broker or dealer was the initial transferee.
52
(b)
Any
Private Certificate sold in offshore transactions in reliance on Regulation
S
shall be issued initially in the form of one or more permanent global
Certificates in definitive, fully registered form without interest coupons
with
the applicable legends set forth in Exhibit A to the Trust Agreement added
to
the forms of such Certificates (each, a “Regulation
S Global Security”),
which
shall be deposited on behalf of the subscribers for such Certificates
represented thereby with the Trustee, as custodian for DTC and registered
in the
name of a nominee of DTC, duly executed and authenticated by the Trustee
as
hereinafter provided. The aggregate principal amounts of the Regulation S
Global
Securities may from time to time be increased or decreased by adjustments
made
on the records of the Trustee or DTC or its nominee, as the case may be,
as
hereinafter provided.
(c)
By
acceptance of a Rule 144A Certificate or a Regulation S Global Security,
whether
upon original issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein. In addition, each Holder of a Regulation S Global Security shall
be
deemed to have represented and warranted to the Trustee, the Certificate
Registrar, the Securities Administrator and the Depositor and any of their
respective successors that: (i) such Person is not a U.S. person within the
meaning of Regulation S and was, at the time the buy order was originated,
outside the United States and (ii) such Person understands that such
Certificates have not been registered under the Securities Act, and that
(x)
until the expiration of the 40-day distribution compliance period (within
the
meaning of Regulation S), no offer, sale, pledge or other transfer of such
Certificates or any interest therein shall be made in the United States or
to or
for the account or benefit of a U.S. person (each as defined in Regulation
S),
(y) if in the future it decides to offer, resell, pledge or otherwise transfer
such Certificates, such Certificates may be offered, resold, pledged or
otherwise transferred only (A) to a person which the seller reasonably believes
is a “qualified institutional buyer” (a “QIB”) as defined in Rule 144A, that is
purchasing such Certificates for its own account or for the account of a
qualified institutional buyer to which notice is given that the transfer
is
being made in reliance on Rule 144A or (B) in an offshore transaction (as
defined in Regulation S) in compliance with the provisions of Regulation
S, in
each case in compliance with the requirements of this Agreement; and it will
notify such transferee of the transfer restrictions specified in this
Section.
The
Depositor (or, upon direction of the Depositor, the Securities Administrator,
which directions shall specify the information to be provided, and at the
expense of the Depositor or the Securities Administrator) shall provide to
any
Holder of a Rule 144A Certificate and any prospective transferee designated
by
such Holder information regarding the related Certificates and the Mortgage
Loans and such other information as shall be necessary to satisfy the condition
to eligibility set forth in Rule 144A(d)(4) for transfer of any such Rule
144A
Certificate without registration thereof under the Securities Act pursuant
to
the registration exemption provided by Rule 144A.
53
(d)
Notwithstanding any provision to the contrary herein, so long as a global
security representing any Private Certificate remains outstanding and is
held by
or on behalf of DTC, transfers of a global security representing any such
Certificates, in whole or in part, shall only be made in accordance with
this
Section 5.05(d).
|
(A)
|
Subject
to clauses (B) and (C) of this Section 5.05(d), transfers of a
global
security representing any Private Certificate shall be limited
to
transfers of such Global Security, in whole or in part, to nominees
of DTC
or to a successor of DTC or such successor’s
nominee.
|
|
(B)
|
Rule
144A Certificate to Regulation S Global Security.
If a holder of a beneficial interest in a Rule 144A Certificate
deposited
with or on behalf of DTC wishes at any time to exchange its interest
in
such Rule 144A Certificate for an interest in a Regulation S Global
Security, or to transfer its interest in such Rule 144A Certificate
to a
Person who wishes to take delivery thereof in the form of an interest
in a
Regulation S Global Security, such holder, provided
such holder or proposed transferee is not a U.S. person, may, subject
to
the rules and procedures of DTC, exchange or cause the exchange
of such
interest for an equivalent beneficial interest in the Regulation
S Global
Security. Upon receipt by the Securities Administrator, as Certificate
Registrar, of (I) instructions from DTC directing the Securities
Administrator, as Certificate Registrar, to be credited a beneficial
interest in a Regulation S Global Security in an amount equal to
the
beneficial interest in such Rule 144A Certificate to be exchanged
but not
less than the minimum denomination applicable to such holder’s
Certificates held through a Regulation S Global Security, (II)
a written
order given in accordance with DTC’s procedures containing information
regarding the participant account of DTC and, in the case of a
transfer
pursuant to and in accordance with Regulation S, the Euroclear
or
Clearstream account to be credited with such increase and (III)
a
certificate in the form of Exhibit C-2 hereto given by the holder
of such
beneficial interest stating that the exchange or transfer of such
interest
has been made in compliance with the transfer restrictions applicable
to
the Global Securities, including that the holder is not a U.S.
person, and
pursuant to and in accordance with Regulation S, the Securities
Administrator, as Certificate Registrar, shall reduce the principal
amount
of the Rule 144A Certificate and increase the principal amount
of the
Regulation S Global Security by the aggregate principal amount
of the
beneficial interest in the Rule 144A Certificate to be exchanged,
and
shall instruct Euroclear or Clearstream, as applicable, concurrently
with
such reduction, to credit or cause to be credited to the account
of the
Person specified in such instructions a beneficial interest in
the
Regulation S Global Security equal to the reduction in the principal
amount of the Rule 144A
Certificate.
|
54
|
(C)
|
Regulation
S Global Security to Rule 144A Certificate.
If a holder of a beneficial interest in a Regulation S Global Security
deposited with or on behalf of DTC wishes at any time to transfer
its
interest in such Regulation S Global Security to a Person who wishes
to
take delivery thereof in the form of an interest in a Rule 144A
Certificate, such holder may, subject to the rules and procedures
of DTC,
exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Rule 144A Certificate. Upon receipt by
the
Securities Administrator, as Certificate Registrar, of (I) instructions
from DTC directing the Securities Administrator, as Certificate
Registrar,
to cause to be credited a beneficial interest in a Rule 144A Certificate
in an amount equal to the beneficial interest in such Regulation
S Global
Security to be exchanged but not less than the minimum denomination
applicable to such holder’s Certificates held through a Rule 144A
Certificate, to be exchanged, such instructions to contain information
regarding the participant account with DTC to be credited with
such
increase, and (II) a certificate in the form of Exhibit C-3 hereto
given
by the holder of such beneficial interest and stating, among other
things,
that the Person transferring such interest in such Regulation S
Global
Security reasonably believes that the Person acquiring such interest
in a
Rule 144A Certificate is a QIB, is obtaining such beneficial interest
in a
transaction meeting the requirements of Rule 144A and in accordance
with
any applicable securities laws of any State of the United States
or any
other jurisdiction, then the Securities Administrator, as Certificate
Registrar, will reduce the principal amount of the Regulation S
Global
Security and increase the principal amount of the Rule 144A Certificate
by
the aggregate principal amount of the beneficial interest in the
Regulation S Global Security to be transferred and the Securities
Administrator, as Certificate Registrar, shall instruct DTC, concurrently
with such reduction, to credit or cause to be credited to the account
of
the Person specified in such instructions a beneficial interest
in the
Rule 144A Certificate equal to the reduction in the principal amount
of
the Regulation S Global Security.
|
|
(D)
|
Other
Exchanges.
In the event that a global security is exchanged for Certificates
in
definitive registered form without interest coupons, pursuant to
Section
5.03(c) hereof, such Certificates may be exchanged for one another
only in
accordance with such procedures as are substantially consistent
with the
provisions above (including certification requirements intended
to insure
that such transfers comply with Rule 144A, comply with Rule 501(a)(1),
(2), (3) or (7) or are to non-U.S. persons in compliance with Regulation
S
under the Securities Act, as the case may
be).
|
|
(E)
|
Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S.
persons
(as defined in Regulation S) shall be limited to transfers made
pursuant
to the provisions of Section
5.05(d)(C).
|
55
(e)
ERISA
Restrictions.
No
Private Certificate (a
“Certificated
Subordinated Security”)
or
Residual Certificate shall be transferred unless the prospective transferee
provides the Securities Administrator and Certificate Registrar with a properly
completed Benefit Plan Affidavit. The holder of any Private Certificate or
Residual Certificate in book-entry form shall be deemed to make the
representations in the Benefit Plan Affidavit.
Prior
to
the termination of any class of certificates which have the benefit of an
interest rate cap agreement, each beneficial owner of a Certificate
of such class or any interest therein, will be deemed to have represented,
by
virtue of its acquisition or holding of a such Certificate,
or interest therein, that either (i) it is not a Plan or (ii) the acquisition
and holding of such Certificate are eligible for the exemptive relief available
under the statutory exemption for nonfiduciary service providers under Section
408(b)(17) of ERISA and Section 4975(d)(20) of the Code, Department of Labor
Prohibited Transaction Class Exemption 84-14, 90-1, 91-38, 95-60 or 96-23
or
some other applicable exemption.
(f)
Residual
Certificates.
No
Residual Certificate (including any beneficial interest therein) may be
transferred to a Disqualified Organization. In addition, no Residual Certificate
(including any beneficial interest therein) may be transferred unless
(i) the proposed transferee provides the Securities Administrator or the
Certificate Registrar with (A) a Residual Transferee Agreement, (B) if
the proposed transferee is a U.S. Person, a U.S. Person Affidavit and Affidavit
Pursuant to Sections 860D(a)(6)(A) and 860E(e)(4) of the Code, and
(C) if the proposed transferee is a Non-U.S. Person, a Non-U.S. Person
Affidavit and Affidavit Pursuant to Sections 860D(a)(6)(A) and 860E(e)(4)
of the Code, and (ii) the interest transferred involves the entire interest
in a Residual Certificate or an undivided interest therein (unless the
transferor or the transferee provides the Securities Administrator or the
Certificate Registrar with an Opinion of Counsel (which shall not be an expense
of the Securities Administrator or the Certificate Registrar, as applicable)
that the transfer will not jeopardize the REMIC status of any related REMIC).
Furthermore, if a proposed transfer involves a Rule 144A Certificate, the
Securities Administrator or the Certificate Registrar shall require the
transferee to certify as to facts that, if true, would mean that the proposed
transferee is a Qualified Institutional Buyer; and, if a proposed transfer
involves a Private Certificate that is not a Rule 144A Certificate, (1) the
Securities Administrator or the Certificate Registrar shall require that
the
transferee certify as to the factual basis for the registration exemption(s)
relied upon, and (2) if the transfer is made within two years from the
acquisition of the Certificate by a non-Affiliate of the Depositor from the
Depositor or an Affiliate of the Depositor, the Securities Administrator
or the
Certificate Registrar also may require an Opinion of Counsel that such transfer
may be made without registration or qualification under the Securities Act
and
applicable state securities laws, which Opinion of Counsel shall not be obtained
at the expense of the Securities Administrator or the Certificate Registrar,
as
applicable. In any event, neither the Securities Administrator nor the
Certificate Registrar shall effect any transfer of a Residual Certificate
except
upon notification of such transfer to the Securities Administrator or the
Certificate Registrar, as applicable. Notwithstanding the foregoing, no Opinion
of Counsel shall be required in connection with the initial transfer of the
Residual Certificates or their transfer by a broker or dealer, if such broker
or
dealer was the initial transferee. Notwithstanding the fulfillment of the
prerequisites described above, the Securities Administrator or the Certificate
Registrar may refuse to recognize any transfer to the extent necessary to
avoid
a risk of disqualification of any related REMIC as a REMIC or the imposition
of
a tax upon any such REMIC.
56
Upon
notice to the Securities Administrator that any legal or beneficial interest
in
any portion of the Residual Certificates has been transferred, directly or
indirectly, to a Disqualified Organization or agent thereof (including a
broker,
nominee, or middleman) in contravention of the foregoing restrictions, such
transferee shall be deemed to hold the Residual Certificate in constructive
trust for the last transferor who was not a Disqualified Organization or
agent
thereof, and such transferor shall be restored as the owner of such Residual
Certificate as completely as if such transfer had never occurred, provided that
the
Securities Administrator may, but is not required to, recover any distributions
made to such transferee with respect to the Residual Certificate and return
such
recovery to the transferor. The Securities Administrator, on behalf of the
Trustee, agrees to furnish to the Internal Revenue Service and to any transferor
of the Residual Certificate or such agent (within 60 days of the request
therefor by the transferor or agent) such information necessary for the
computation of the tax imposed under Section 860E(e) of the Code and as
otherwise may be required by the Code, including but not limited to the present
value of the total anticipated excess inclusions with respect to the Residual
Certificate (or portion thereof) for periods after such transfer. At the
election of the Securities Administrator, the cost to the Securities
Administrator of computing and furnishing such information may be charged
to the
transferor or such agent referred to above; however, the Securities
Administrator shall not be excused from furnishing such
information.
If
a tax
or a reporting cost is borne by any REMIC as a result of the transfer of
a
Residual Certificate or any beneficial interest therein in violation of the
restrictions set forth in this Section, the transferor shall pay such tax
or
cost and, if such tax or cost is not so paid, the Securities Administrator,
on
behalf of the Trustee, shall pay such tax or cost with amounts that otherwise
would have been paid to the transferee of the Residual Certificate (or
beneficial interest therein). In that event, neither the transferee nor the
transferor shall have any right to seek repayment of such amounts from the
Depositor, the Securities Administrator, any REMIC, or the other Holders
of any
of the Certificates, and none of such parties shall have any liability for
payment of any such tax or reporting cost.
Section
5.06 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Securities
Administrator or the Certificate Registrar, or the Securities Administrator
and
the Certificate Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate, and (b) there is delivered
to the Securities Administrator, the Trustee and the Certificate Registrar
such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of actual knowledge by the Securities Administrator
or the
Certificate Registrar that such Certificate has been acquired by a bona fide
purchaser, the Securities Administrator shall execute and cause the Certificate
Registrar to authenticate and deliver, in exchange for or in lieu of any
such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the
same
Class and of like tenor and Percentage Interest. Upon the issuance of any
new
Certificate pursuant to this Section, the Securities Administrator may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including
the
fees and expenses of the Certificate Registrar) connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust, as if originally
issued, whether or not the destroyed, lost or stolen Certificate shall be
found
at any time.
57
Section
5.07 Persons
Deemed Owners.
Prior
to
due presentation of a Certificate for registration of transfer, the Securities
Administrator, the Certificate Registrar and any agent of any of them may
treat
the person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither the Securities Administrator, the Certificate
Registrar nor any agent of any of them shall be affected by notice to the
contrary.
Section
5.08 Appointment
of Paying Agent.
The
Securities Administrator may, with the consent of the Trustee (if such Paying
Agent is other than Xxxxx Fargo), appoint a Paying Agent for the purpose
of
making distributions to Certificateholders. The Securities Administrator
shall
cause such Paying Agent (if other than the Securities Administrator) to execute
and deliver to the Securities Administrator an instrument in which such Paying
Agent shall agree with the Securities Administrator that such Paying Agent
will
hold all sums held by it for the payment to Certificateholders in an Eligible
Account in trust for the benefit of the Certificateholders entitled thereto
until such sums shall be paid to the Certificateholders. All funds remitted
by
the Securities Administrator to any such Paying Agent for the purpose of
making
distributions shall be paid to Certificateholders on each Distribution Date
and
any amounts not so paid shall be returned on such Distribution Date to the
Securities Administrator. The initial Paying Agent shall be Xxxxx Fargo
Bank.
ARTICLE
VI
THE
DEPOSITOR
Section
6.01 Liability
of the Depositor.
The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed by the Trust Agreement and undertaken by
the
Depositor under the Trust Agreement.
Section
6.02 Merger
or Consolidation of the Depositor.
Subject
to the following paragraph, the Depositor will keep in full effect its corporate
existence, rights and franchises under the laws of the jurisdiction of its
organization, and will obtain and preserve its qualification to do business
in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Trust Agreement, the Certificates
or any of the Mortgage Loans and to perform its duties under the Trust
Agreement.
The
Depositor may be merged or consolidated with or into any Person, or transfer
all
or substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor shall be
a
party, or any Person succeeding to the business of the Depositor, shall be
the
successor of the Depositor without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding.
58
ARTICLE
VII
TERMINATION
OF SERVICING ARRANGEMENTS
Section
7.01 Termination
and Substitution of Servicer.
Upon
the
occurrence of any Servicer Event of Default for which any Servicer may be
terminated pursuant to the related Servicing Agreement, the Master Servicer,
in
accordance with Section 8.01(a) hereof, may, and shall, at the direction of
the Certificateholders holding 51% of the Voting Rights, terminate such
Servicing Agreement. The Holders of Certificates evidencing at least 51%
of the
Voting Rights of Certificates affected by a Servicer Event of Default may
waive
such Servicer Event of Default; provided,
however,
that
(a) a Servicer Event of Default with respect to any Servicer’s obligation
to make Monthly Advances may be waived only by all of the holders of the
Certificates affected by such Servicer Event of Default and (b) no such
waiver is permitted that would materially adversely affect any non-consenting
Certificateholder. Subject to the conditions set forth below in this
Section 7.01, the Master Servicer, at the direction of the
Certificateholders holding 66% of the Voting Rights, shall, concurrently
with
such termination, either assume the duties of the terminated Servicer under
the
applicable Servicing Agreement or appoint another servicer to enter into
such
Servicing Agreement.
Notwithstanding
the foregoing, the Master Servicer may not terminate a Servicer without cause
unless the Master Servicer or a successor servicer is appointed concurrently
with such termination. There may be a transition period of not longer than
ninety (90) days prior to the effective date of the servicing transfer to
the
successor Servicer or Master Servicer, as applicable, provided,
however,
that
during
such transition period, the Master Servicer or successor servicer shall use
commercially reasonable efforts to perform the duties of the terminated Servicer
in its capacity as successor servicer.
If
the
Master Servicer terminates a Servicer, the Master Servicer may name another
mortgage loan service company and such mortgage loan service company shall
be
acceptable to each Rating Agency and such mortgage loan service company shall
assume, satisfy, perform and carry out all liabilities, duties, responsibilities
and obligations that are to be, or otherwise were to have been, satisfied,
performed and carried out by such terminated Servicer under the related
Servicing Agreement. Such successor servicer shall be a mortgage loan servicing
institution, with a net worth of at least $25,000,000. In the event that
the
Master Servicer cannot appoint a substitute servicer, it shall petition a
court
of competent jurisdiction for the appointment of a substitute servicer meeting
the foregoing requirements.
In
the
event any Servicer resigns or is terminated as provided above and the Master
Servicer has not appointed a successor servicer (or no successor servicer
has
accepted such appointment) prior to the effective date of such resignation
or
termination, then the Master Servicer shall serve as successor servicer and
shall succeed to, satisfy, perform and carry out all obligations which otherwise
were to have been satisfied, performed and carried out by such Servicer under
the terminated Servicing Agreement until another successor servicer has been
appointed and has accepted its appointment. In no event shall the Master
Servicer be deemed to have assumed the obligations of a Servicer to purchase
any
Mortgage Loan from the Trust pursuant to any Servicing Agreement or any
obligations of a Servicer which were incurred thereunder prior to the date
the
Master Servicer assumes the obligations of the Servicer under the related
Servicing Agreement. As compensation to the Master Servicer for any servicing
obligations fulfilled or assumed by the Master Servicer, the Master Servicer
shall be entitled to any servicing compensation to which such Servicer would
have been entitled if the Servicing Agreement with such Servicer had not
been
terminated; provided,
however, that
the
Master Servicer shall not be (a) liable for any acts or omissions of the
terminated Servicer, (b) obligated to make Advances if it is prohibited from
doing so under applicable law, (c) responsible for expenses of the terminated
Servicer pursuant to the terms of the Servicing Agreement or (d) obligated
to
deposit losses on any Permitted Investments directed by the terminated
Servicer.
59
In
no
event shall the Master Servicer be deemed to have assumed the obligations
of a
Servicer to purchase any Mortgage Loan from the Trust. Notwithstanding
the foregoing, if a Servicer Event of Default shall occur and if the Servicer
is
to be terminated under this Section 7.01, the Master Servicer shall, by notice
in writing to the applicable Servicer, which may be delivered by telecopy,
immediately terminate all of the rights and obligations of such Servicer
thereafter arising under the applicable Servicing Agreement, but without
prejudice to any rights it may have as a Certificateholder or to reimbursement
of Advances and other advances of its own funds, and the Master Servicer
shall
act as provided in this Section 7.01 to carry out the duties of such Servicer,
including the obligation to make any Advance the nonpayment of which was
a
Servicer Event of Default. Any such action taken by the Master Servicer must
be
prior to the distribution of the relevant Distribution Date.
The
Servicer being terminated as a result of an Event of Default shall bear all
costs of a servicing transfer as set forth in the applicable Servicing
Agreement.
As
set
forth in the applicable Servicing Agreement, the Master Servicer shall be
entitled to be reimbursed from such Servicer (or by the Trust Estate, if
such
Servicer is unable to fulfill its obligations hereunder) for all costs
associated with the transfer of servicing from the predecessor Servicer,
including, without limitation, any costs or expenses associated with the
complete transfer of all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the succeeding
servicer to correct any errors or insufficiencies in the servicing data or
otherwise to enable the succeeding servicer to service the Mortgage Loans
properly and effectively. If the terminated Servicer does not pay such
reimbursement within thirty (30) days of its receipt of an invoice therefor,
such reimbursement shall be an expense of the Trust and the Master Servicer
shall be entitled to withdraw such reimbursement from amounts on deposit
in the
Certificate Account pursuant to the terms hereof; provided that,
in
accordance with the applicable Servicing Agreement, the terminated Servicer
shall reimburse the Trust for any such expense incurred by the Trust; and
provided,
further,
that
the
Master Servicer shall decide whether and to what extent it is in the best
interest of the Certificateholders to pursue any remedy against any party
obligated to make such reimbursement.
60
No
Certificateholder, solely by virtue of such holder’s status as a
Certificateholder, will have any right under the Trust Agreement to institute
any proceeding with respect to the Trust Agreement or any Servicing Agreement,
Custodial Agreement or any Assignment Agreement, unless such holder previously
has given to the Trustee written notice of default and unless the
Certificateholders evidencing at least 25% of Voting Rights have made written
request upon the Trustee to institute such proceeding in its own name and
have
offered to the Trustee reasonable indemnity, and the Trustee for 60 days
has
neglected or refused to institute any such proceeding.
Section
7.02 Notification
to Certificateholders.
(a)
Upon
any termination pursuant to Section 7.01 above or appointment of a
successor to any Servicer or the Master Servicer, the Securities Administrator
shall give prompt written notice thereof to the Certificateholders at their
respective addresses appearing in the Certificate Register, and to each Rating
Agency.
(b)
Within sixty (60) days after the occurrence of any Servicer Event of Default
involving any Servicer, the Securities Administrator shall transmit by mail
to
all Holders of Certificates and each Rating Agency, the Trustee and the Master
Servicer notice of each such Servicer Event of Default or occurrence known
to a
Responsible Officer of the Trustee unless such default shall have been cured
or
waived.
ARTICLE
VIII
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE MASTER SERVICER
Section
8.01 Duties
of the Master Servicer; Enforcement of Servicer’s and Master Servicer’s
Obligations.
(a)
The
Master Servicer, on behalf of the Trustee, the Securities Administrator,
the
Depositor and the Certificateholders, shall monitor the performance of the
Servicers under the Servicing Agreements, and (except as set forth below)
shall
use its reasonable good faith efforts to cause the Servicers to duly and
punctually to perform their duties and obligations thereunder. Upon the
occurrence of a Servicer Event of Default of which a Responsible Officer
of the
Master Servicer has actual knowledge under a Servicing Agreement, the Master
Servicer shall promptly notify the Securities Administrator and Trustee and
shall specify in such notice the action, if any, the Master Servicer plans
to
take in respect of such default. So long as any such default shall be
continuing, the Master Servicer may (i) terminate all of the rights and
powers of such Servicer pursuant to the applicable provisions of the Servicing
Agreement; (ii) exercise any rights it may have to enforce the Servicing
Agreement against such Servicer; (iii) waive any such default under the
Servicing Agreement in accordance with Section 7.01 hereof or
(iv) take any other action with respect to such default as is permitted
thereunder. Except as set forth in Section 4.06 hereof, the Master Servicer
shall have no duty to supervise any Servicer’s activities related to the
servicing or administration of defaulted or delinquent Mortgage Loans or
the
management and disposition of any REO Properties.
61
(b)
The
Master Servicer shall pay the costs of monitoring the Servicers as required
hereunder (including costs associated with (i) termination of any Servicer
or (ii) the appointment of a successor servicer and shall, to the extent
permitted by the related Servicing Agreement, seek reimbursement therefor
initially from the terminated Servicer. In the event the full costs associated
with the transition of servicing responsibilities to the Master Servicer
are not
paid for by the predecessor Servicer or successor servicer (provided
that
such
successor Servicer is not the Master Servicer), the Master Servicer may be
reimbursed therefor by the Trust for out of pocket costs incurred by the
Master
Servicer associated with any such transfer of servicing duties from a Servicer
to any other successor servicer.
(c)
None
of the Depositor, the Securities Administrator nor the Trustee shall consent
to
the assignment by any Servicer of such Servicer’s rights and obligations under
the related Servicing Agreement without the prior written consent of the
Master
Servicer, which consent shall not be unreasonably withheld.
(d)
The
Master Servicer shall not assume liability for any Servicer’s representations
and warranties if it becomes a successor servicer.
(e)
On or
before March 15 of each year, commencing in March 2008, the Master Servicer,
at
its own expense, shall furnish, and shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator and the Depositor, an assessment of compliance with the Relevant
Servicing Criteria that contains (i) a statement by such party of its
responsibility for assessing compliance with the Servicing Criteria, (ii)
a
statement that such party used the Servicing Criteria to assess compliance
with
the Relevant Servicing Criteria, (iii) such party’s assessment of compliance
with the Relevant Servicing Criteria as of and for the fiscal year covered
by
the Form 10-K required to be filed pursuant to Section 3.02(e), including,
if
there has been any material instance of noncompliance with the Relevant
Servicing Criteria, a discussion of each such failure and the nature and
status
thereof, and (iv) a statement that a registered public accounting firm has
issued an attestation report on such party’s assessment of compliance with the
Relevant Servicing Criteria as of and for such period.
No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Master Servicer shall forward to the Securities Administrator
the
name of each Servicing Function Participant engaged by it and what Relevant
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Function Participant. When the Master Servicer
and
the Trustee (or any Servicing Function Participant engaged by them) submits
its
assessment to the Securities Administrator, such parties will also at such
time
include the assessment and attestation pursuant to Section 8.01(f) and 11.01(d)
of each Servicing Function Participant engaged by it.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator and any Servicing Function Participant
engaged by such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such party, and
(ii)
the Securities Administrator shall confirm that the assessments, taken as
a
whole, address all of the Servicing Criteria and, taken individually, address
the Relevant Servicing Criteria for each party as set forth on Exhibit J
and on
any similar exhibit set forth in each Servicing Agreement and each Custodial
Agreement in respect of the applicable Servicer or Custodian and notify the
Depositor of any exceptions. None of such parties shall be required to deliver
any such assessments until April 15 in any given year so long as such party
has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar
year.
62
The
Master Servicer shall enforce any obligation of a Servicer (and the applicable
Servicing Agreement will provide that each Servicer shall enforce any
obligations of an Additional Servicer engaged by such Servicer), to the extent
set forth in the related Servicing Agreement (or, in the case of an Additional
Servicer, such applicable agreement), to deliver to the Master Servicer an
annual report on assessment of compliance within the time frame set forth
in,
and in such form and substance as may be required pursuant to, the related
Servicing Agreement (or, in the case of an Additional Servicer, such applicable
agreement). The Master Servicer shall include such annual report on assessment
of compliance with its own assessment of compliance to be submitted to the
Securities Administrator pursuant to this Section 8.01.
(f)
On or
before March 15 of each calendar year, commencing in March 2008, the Master
Servicer, at its own expense, shall cause, and shall cause any Servicing
Function Participant engaged by it to cause, each at its own expense, a
registered public accounting firm (which may also render other services to
the
Master Servicer or such other Servicing Function Participants, as the case
may
be) that is a member of the American Institute of Certified Public Accountants
to furnish a report to the Securities Administrator and the Depositor (and,
in
the case of any other Servicing Function Participant, the Master Servicer)
to
the effect that (i) it has obtained a representation regarding certain matters
from the management of such party, which includes an assertion that such
party
has complied with the Relevant Servicing Criteria, and (ii) on the basis
of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as
to
whether such party’s compliance with the Relevant Servicing Criteria was fairly
stated in all material respects, or it cannot express an overall opinion
regarding such party’s assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for general use
and
not contain restricted use language.
Promptly
after receipt of such report from the Master Servicer or any Servicing Function
Participant engaged by the Master Servicer, (i) the Depositor shall review
the
report and, if applicable, consult with such parties as to the nature of
any
defaults by such parties, in the fulfillment of any of each such party’s
obligations hereunder or under any other applicable agreement, and (ii) the
Securities Administrator shall confirm that each assessment submitted pursuant
to Section 8.01(e) and Section 11.01(c) is coupled with an attestation meeting
the requirements of this Section and shall notify the Depositor of any
exceptions. Neither the Master Servicer nor any Servicing Function Participant
engaged by the Master Servicer shall be required to deliver or cause the
delivery of such reports until April 15 in any given year so long as it has
received written confirmation from the Depositor that a 10-K is not required
to
be filed in respect of the Trust for the preceding fiscal year.
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The
Master Servicer shall enforce any obligation of a Servicer (and the applicable
Servicing Agreement will provide that each Servicer shall enforce any
obligations of an Additional Servicer engaged by such Servicer), to the extent
set forth in the related Servicing Agreement (or, in the case of an Additional
Servicer, such applicable agreement), to deliver to the Master Servicer an
attestation within the time frame set forth in, and in such form and substance
as may be required pursuant to, the related Servicing Agreement (or, in the
case
of an Additional Servicer, such applicable agreement). The Master Servicer
shall
include such annual report on assessment of compliance with its own assessment
of compliance to be submitted to the Securities Administrator pursuant to
this
Section 8.01.
(g)
The
Master Servicer shall give prior written notice to the Depositor of the
appointment of any Subcontractor by it and a written description (in form
and
substance satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by the Master Servicer, specifying (i) the identity
of
each such Subcontractor and (ii) which elements of the servicing criteria
set
forth under Item 1122(d) of Regulation AB will be addressed in assessments
of
compliance provided by each such Subcontractor.
(h)
The
Master Servicer shall notify the Depositor and the Sponsor within five days
of
its gaining knowledge thereof (i) of any legal proceedings pending against
the
Master Servicer of the type described in Item 1117 (§ 229.1117) of Regulation
AB, (ii) of any merger, consolidation or sale of substantially all of the
assets
of the Master Servicer and (iii) if the Master Servicer shall become (but
only
to the extent not previously disclosed) at any time an affiliate of any of
the
Depositor, any Servicer, any Originator contemplated by Item 1110 (§ 229.1110)
of Regulation AB, any significant obligor contemplated by Item 1112 (§ 229.1112)
of Regulation AB, any enhancement or support provider contemplated by Items
1114
or 1115 (§§ 229.1114-1115) of Regulation AB or any successor thereto or any
other material party to the Trust Fund contemplated by Item 1100(d)(1) (§
229.1100(d)(1)) of Regulation AB, as applicable, and identified as such to
the
Master Servicer.
Section
8.02 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
(a)
The
Master Servicer shall maintain with responsible companies, at its own expense,
a
blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with
broad
coverage on all directors, officers, employees or other persons acting in
any
capacity requiring such persons to handle funds, money, documents or papers
relating to the related Mortgage Loans (“Master
Servicing Employees”).
Any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be in
the
form of the Mortgage Banker’s Blanket Bond or the Financial Institution Bond and
shall protect and insure the Master Servicer against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of the
Master Servicer Employees. Such Fidelity Bond and Errors and Omissions Insurance
Policy also shall protect and insure the Master Servicer against losses in
connection with the release or satisfaction of a related Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 8.02 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Master Servicer
from
its duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by Xxxxxx Xxx or Xxxxxxx Mac. Upon the request
of
the Securities Administrator, the Master Servicer shall cause to be delivered
to
the Securities Administrator a certificate of insurance of the insurer and
the
surety including a statement from the surety and the insurer that such fidelity
bond and insurance policy shall in no event be terminated or materially modified
without thirty (30) days’ prior written notice to the Securities Administrator.
The Master Servicer shall (i) require each Servicer to maintain an Errors
and
Omissions Insurance Policy and a Fidelity Bond in accordance with the provisions
of the applicable Servicing Agreement, (ii) cause each Servicer to provide
to
the Master Servicer certificates evidencing that such policy and bond is
in
effect and to furnish to the Master Servicer any notice of cancellation,
non-renewal or modification of the policy or bond received by it, as and
to the
extent provided in the applicable Servicing Agreement, and (iii) furnish
copies
of the certificates and notices referred to in clause (ii) to the Securities
Administrator upon its request.
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(b)
The
Master Servicer shall promptly report to the Securities Administrator any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to
the
Securities Administrator, on request, certificates evidencing that such bond
and
insurance policy are in full force and effect. The Master Servicer shall
promptly report to the Securities Administrator, to the best of its knowledge,
all cases of forgery, theft, embezzlement, fraud, errors or omissions, if
such
events involve funds relating to the Mortgage Loans. The total losses,
regardless of whether claims are filed with the applicable insurer or surety,
shall be disclosed in such reports together with the amount of such losses
covered by insurance. If a bond or insurance claim report is filed with any
of
such bonding companies or insurers, the Master Servicer shall promptly furnish
a
copy of such report to the Securities Administrator. Any amounts relating
to the
Mortgage Loans collected by the Master Servicer under any such bond or policy
shall be promptly remitted by the Master Servicer to the Securities
Administrator for deposit into the Certificate Account. Any amounts relating
to
the Mortgage Loans collected by any Servicer under any such bond or policy
shall
be remitted to the Master Servicer to the extent provided in the applicable
Servicing Agreement.
Section
8.03 Representations
and Warranties of the Master Servicer.
(a)
The
Master Servicer hereby represents and warrants to the Depositor, the Securities
Administrator and the Trustee, for the benefit of the Certificateholders,
as of
the Closing Date that:
(i)
it is
a national banking association validly existing and in good standing under
the
laws of the United States, and as Master Servicer has full power and authority
to transact any and all business contemplated by this Trust Agreement and
to
execute, deliver and comply with its obligations under the terms of this
Trust
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary corporate action on the part of the Master
Servicer;
(ii)
the
execution and delivery of this Trust Agreement by the Master Servicer and
its
performance and compliance with the terms of this Trust Agreement will not
(A) violate the Master Servicer’s charter or bylaws, (B) violate any
law or regulation or any administrative decree or order to which it is subject
or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of,
any material contract, agreement or other instrument to which the Master
Servicer is a party or by which it is bound or to which any of its assets
are
subject, which violation, default or breach would materially and adversely
affect the Master Servicer’s ability to perform its obligations under this Trust
Agreement;
65
(iii)
this Trust Agreement constitutes, assuming due authorization, execution and
delivery hereof by the other respective parties hereto, a legal, valid and
binding obligation of the Master Servicer, enforceable against it in accordance
with the terms hereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the enforcement
of creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv)
the
Master Servicer is not in default with respect to any order or decree of
any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially
and
adversely affect its performance hereunder;
(v)
the
Master Servicer is not a party to or bound by any agreement or instrument
or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform
its
obligations under this Trust Agreement or that requires the consent of any
third
person to the execution of this Trust Agreement or the performance by the
Master
Servicer of its obligations under this Trust Agreement;
(vi)
no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer that would prohibit its entering into
this Trust Agreement or performing its obligations under this Trust
Agreement;
(vii)
the
Master Servicer, or an affiliate thereof the primary business of which is
the
servicing of conventional residential mortgage loans, is a FNMA and FHLMC
approved seller/servicer;
(viii)
no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Trust Agreement
or
the consummation of the transactions contemplated by this Trust Agreement,
except for such consents, approvals, authorizations and orders (if any) as
have
been obtained; and
(ix)
the
consummation of the transactions contemplated by this Trust Agreement are
in the
ordinary course of business of the Master Servicer.
(b)
It is
understood and agreed that the representations and warranties set forth in
this
Section shall survive the execution and delivery of this Trust Agreement.
The Master Servicer shall indemnify the Depositor, the Securities Administrator
and the Trustee and hold them harmless against any loss, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and
other reasonable costs and expenses resulting from any claim, demand, defense
or
assertion based on or grounded upon, or resulting from, a material breach
of the
Master Servicer’s representations and warranties contained in
Section 8.03(a) above. It is understood and agreed that the enforcement of
the obligation of the Master Servicer set forth in this Section to
indemnify the Depositor, the Securities Administrator and the Trustee
constitutes the sole remedy of the Depositor and the Trustee, respecting
a
breach of the foregoing representations and warranties. Such indemnification
shall survive any termination of the Master Servicer as Master Servicer
hereunder and any termination of this Trust Agreement.
66
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue
upon discovery of such breach by either the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee or notice thereof by any one of such
parties to the other parties.
Section
8.04 Master
Servicer Events of Default.
Each
of
the following shall constitute a Master Servicer Event of Default:
(a)
any
failure by the Master Servicer to remit to the Securities Administrator any
payment required to be made under the terms of this Trust Agreement which
continues unremedied for a period of two (2) Business Days after the date
upon
which written notice of such failure, requiring the same to be remedied,
shall
have been given to the Master Servicer (with a copy to the Trustee) by the
Securities Administrator;
(b)
failure by the Master Servicer to duly observe or perform, in any material
respect, any other covenants, obligations or agreements of the Master Servicer
as set forth in this Trust Agreement which failure continues unremedied for
a
period of thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master
Servicer by the Securities Administrator;
(c)
failure by the Master Servicer to maintain its license to do business in
any
jurisdiction where the Mortgaged Premises are located if such license is
required;
(d)
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation
of its
affairs, shall have been entered against the Master Servicer and such decree
or
order shall have remained in force, undischarged or unstayed for a period
of
sixty (60) days;
(e)
the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Master
Servicer or relating to all or substantially all of its property;
67
(f)
the
Master Servicer shall admit in writing its inability to pay its debts as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations for three (3) Business
Days;
(g)
an
affiliate of the Master Servicer that performs any back-up servicer duties
of
the Master Servicer or any servicing duties assumed by the Master Servicer
as
successor servicer under any Servicing Agreement ceases to meet the
qualifications of a FNMA or FHLMC servicer;
(h)
the
Master Servicer attempts to assign this Trust Agreement or its responsibilities
hereunder or to delegate its duties hereunder (or any portion thereof) without
the consent of the Trustee and the Depositor; or
(i)
the
indictment of the Master Servicer for the taking of any action by the Master
Servicer, any employee thereof, any Affiliate or any director or employee
thereof that constitutes fraud or criminal activity in the performance of
its
obligations under the Trust Agreement, in each case, where such indictment
materially and adversely affects the ability of the Master Servicer to perform
its obligations under the Trust Agreement (subject to the condition that
such
indictment is not dismissed within ninety (90) days).
In
each
and every such case, so long as a Master Servicer Event of Default shall
not
have been remedied, in addition to whatever rights the Trustee may have at
law
or equity to damages, including injunctive relief and specific performance,
the
Trustee, by notice in writing to the Master Servicer, may terminate with
cause
all the rights and obligations of the Master Servicer under this Trust
Agreement.
Upon
receipt by the Master Servicer of such written notice, all authority and
power
of the Master Servicer under this Trust Agreement, shall pass to and be vested
in any successor master servicer appointed hereunder that accepts such
appointments. Upon written request from the Trustee, the Master Servicer
shall
prepare, execute and deliver to the successor entity designated by the Trustee
any and all documents and other instruments related to the performance of
its
duties hereunder as the Master Servicer and, place in such successor’s
possession all such documents, together with any Mortgage Files related to
any
pool of Mortgage Loans with respect to which it acts as a successor servicer,
and do or cause to be done all other acts or things necessary or appropriate
to
effect the purposes of such notice of termination, at the Master Servicer’s sole
expense. The Master Servicer shall cooperate with the Trustee and such successor
master servicer in effecting the termination of the Master Servicer’s
responsibilities and rights hereunder, including without limitation, the
transfer to such successor master servicer for administration by it of all
cash
amounts that shall at the time be credited to the Master Servicer Account
or are
thereafter received with respect to the Mortgage Loans.
The
Master Servicer being terminated shall bear and agrees to reimburse the Trustee
and the successor master servicer from all costs, damages, expenses and
liabilities incurred by them in connection with the transfer of master
servicing, including but not limited to, legal fees and expenses, accounting
fees and expenses. If the terminated Master Servicer does not pay any such
costs
and expenses within thirty (30) days of its receipt of an invoice therefor,
the
Trust shall reimburse the Trustee (or successor master servicer therefor)
and
the Trustee shall be entitled to withdraw such reimbursement from amounts
on
deposit in the Certificate Account pursuant to Section 3.01(a)(iv); provided
that the terminated Master Servicer shall reimburse the Trust for any such
expense incurred by the Trust.
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Section
8.05 Waiver
of Default.
By
a
written notice, the Trustee may, and shall, at the direction of the
Certificateholders holding 66% of the Voting Rights, waive any default by
the
Master Servicer in the performance of its obligations hereunder and its
consequences. Upon any waiver of a past default, such default shall cease
to
exist, and any Master Servicer Event of Default arising therefrom shall be
deemed to have been remedied for every purpose of this Trust Agreement. No
such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
Section
8.06 Successor
to the Master Servicer.
Upon
termination of the Master Servicer’s responsibilities and duties under this
Trust Agreement, the Trustee, at the direction of the Depositor, shall appoint
a
successor, which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Master Servicer under this
Trust
Agreement prior to the termination of the Master Servicer. In connection
with
such appointment and assumption, the Trustee may make such arrangements for
the
compensation of such successor out of payments on Mortgage Loans as it and
such
successor shall agree; provided,
however,
that in
no event shall the Master Servicing Fee paid to such successor master servicer
exceed that paid to the Master Servicer hereunder. In the event that the
Master
Servicer’s duties, responsibilities and liabilities under this Trust Agreement
are terminated, the Master Servicer shall continue to discharge its duties
and
responsibilities hereunder until the effective date of such termination with
the
same degree of diligence and prudence that it is obligated to exercise under
this Trust Agreement and shall take no action whatsoever that might impair
or
prejudice the rights of its successor. The termination of the Master Servicer
shall not become effective until a successor shall be appointed pursuant
hereto
and shall in no event (a) relieve the Master Servicer of responsibility for
the representations and warranties made pursuant to Section 8.03(a) hereof
and the remedies available to the Trustee under Section 8.03(b) hereof, it
being understood and agreed that the provisions of Section 8.03 hereof
shall be applicable to the Master Servicer notwithstanding any such sale,
assignment, resignation or termination of the Master Servicer or the termination
of this Trust Agreement; or (b) affect the right of the Master Servicer to
receive payment and/or reimbursement of any amounts accruing to it hereunder
prior to the date of termination (or during any transition period in which
the
Master Servicer continues to perform its duties hereunder prior to the date
the
successor master servicer fully assumes its duties).
If
no
successor master servicer has accepted its appointment within ninety (90)
days
of the time the Trustee receives the resignation of the Master Servicer,
the
Trustee shall be the successor master servicer in all respects under the
Trust
Agreement and shall have all the rights and powers and be subject to all
the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Monthly Advances; provided,
however,
that
any
failure to perform any duties or responsibilities caused by the Master
Servicer’s failure to provide information required by these Standard Terms shall
not be considered a default by the Trustee hereunder. In the Trustee’s capacity
as such successor, the Trustee shall have the same limitations on liability
herein granted to the Master Servicer. As compensation therefor, the Trustee
shall be entitled to receive the compensation, reimbursement and indemnities
otherwise payable to the Master Servicer under these Standard Terms, including
the fees and other amounts payable pursuant to Section 8.07
hereof.
69
Any
successor master servicer appointed as provided herein, shall execute,
acknowledge and deliver to the Master Servicer and to the Trustee an instrument
accepting such appointment hereunder, wherein the successor shall make the
representations and warranties set forth in Section 8.03(a) hereof, and
whereupon such successor shall become fully vested with all of the rights,
powers, duties, responsibilities, obligations and liabilities of the Master
Servicer, with like effect as if originally named as a party to this Trust
Agreement. Any termination or resignation of the Master Servicer or termination
of this Trust Agreement shall not affect any claims that the Trustee may
have
against the Master Servicer arising out of the Master Servicer’s actions or
failure to act prior to any such termination or resignation.
Upon
a
successor’s acceptance of appointment as such, the Master Servicer shall notify
by mail the Trustee of such appointment.
Section
8.07 Fees
and Other Amounts Payable to the Master Servicer.
The
Master Servicer and the Trustee, as successor Master Servicer, shall be entitled
to either retain or withdraw from the Master Servicer Account, (a) the
Master Servicing Fee, (b) amounts necessary to reimburse itself for any
previously unreimbursed Advances and any Advances the Master Servicer deems
to
be non-recoverable from the related Mortgage Loan proceeds, (c) an
aggregate annual amount to indemnify the Master Servicer for amounts due
in
accordance with Section 8.01(b), 8.11 and 8.12 hereof, and (d) any
other amounts that it or the Trustee, as successor Master Servicer is entitled
to receive hereunder for reimbursement, indemnification or otherwise. The
Master
Servicer shall be required to pay all expenses incurred by it in connection
with
its activities hereunder and shall not be entitled to reimbursement therefor
except as provided in this Trust Agreement.
Section
8.08 Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor
to the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding; provided,
however,
that the
successor or resulting Person to the Master Servicer shall (a) be a Person
(or have an Affiliate) that is qualified and approved to service mortgage
loans
for Xxxxxx Xxx and FHLMC (provided
that
a
successor master servicer that satisfies subclause (a) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Mae and FHLMC guidelines) and (b) have a net worth of not less than
$25,000,000.
70
Section
8.09 Resignation
and Removal of Master Servicer.
Except
as
otherwise provided in Sections 8.08 and 8.10 hereof, the Master Servicer
shall not resign from the obligations and duties hereby imposed on it unless
the
Master Servicer’s duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it and cannot be cured. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel that shall be Independent to such effect delivered to
the
Trustee. No such resignation shall become effective until a successor master
servicer shall have been appointed by the Trustee, at the direction of the
Depositor, and until such successor shall have assumed, the Master Servicer’s
responsibilities and obligations under this Trust Agreement. Notice of such
resignation shall be given promptly by the Master Servicer and the Depositor
to
the Trustee.
In
the
event that the Master Servicer fails to comply with the provisions of Section
3.02, the Depositor may at any such time remove the Master Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Master
Servicer so removed and to the Trustee. In any such event the Trustee shall
appoint a successor master servicer, at the direction of the Depositor, by
written instrument, in duplicate, which instrument shall be delivered to
the
Master Servicer so removed, to the Depositor and to the successor master
servicer. If the Trustee and Depositor execute such an instrument, then the
Trustee shall deliver copies of such instrument to the Certificateholders
and
each Servicer.
Section
8.10 Assignment
or Delegation of Duties by the Master Servicer.
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any other Person to perform
any
of the duties, covenants or obligations to be performed by the Master Servicer
without the prior written consent of Xxxxxxx Mac; provided,
however,
that the
Master Servicer shall have the right with the prior written consent of the
Trustee and the Depositor (which shall not be unreasonably withheld) and
upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency
to
the effect that such action shall not result in a downgrade or withdrawal
of the
ratings assigned to any of the Certificates, to delegate or assign to or
subcontract with or authorize or appoint any qualified Person to perform
and
carry out any duties, covenants or obligations to be performed and carried
out
by the Master Servicer hereunder. Notice of such permitted assignment shall
be
given promptly by the Master Servicer to the Depositor and the Trustee. If,
pursuant to any provision hereof, the duties of the Master Servicer are
transferred to a successor master servicer, the entire amount of the Master
Servicing Fee and other compensation payable to the Master Servicer pursuant
hereto shall thereafter be payable to such successor master servicer, but
in no
event shall the Master Servicing Fee payable to the successor master servicer
exceed that payable to the predecessor master servicer.
Section
8.11 Limitation
on Liability of the Master Servicer and Others.
Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Trustee, the Depositor,
the Securities Administrator or the Certificateholders for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Trust Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Master Servicer or any such person against
any liability that would otherwise be imposed by reason of willful malfeasance,
bad faith or negligence in the performance of its duties or by reason of
reckless disregard for its obligations and duties under this Trust Agreement.
The Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document prima
facie
properly
executed and submitted by any Person respecting any matters arising hereunder.
The Master Servicer shall be under no obligation to appear in, prosecute
or
defend any legal action that is not incidental to its duties as Master Servicer
with respect to the Mortgage Loans under this Trust Agreement and that in
its
opinion may involve it in any expenses or liability; provided,
however,
that the
Master Servicer may in its sole discretion undertake any such action that
it may
deem necessary or desirable in respect to this Trust Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any
liability resulting therefrom, shall be liabilities of the Trust, and the
Master
Servicer shall be entitled to be reimbursed therefor out of the Master Servicer
Account in accordance with the provisions of Section 8.07 and
Section 8.12.
71
The
Master Servicer shall not be liable for any acts or omissions of any Servicer
except to the extent that damages or expenses are incurred as a result of
such
act or omissions and such damages and expenses would not have been incurred
but
for the negligence, willful malfeasance, bad faith or recklessness of the
Master
Servicer in supervising, monitoring and overseeing the obligations of each
Servicer under this Trust Agreement.
Section
8.12 Indemnification;
Third-Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Securities Administrator
and the Trustee, and hold them harmless against, any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
any
other costs, liability, fees and expenses that the Depositor, the Securities
Administrator or the Trustee may sustain as a result of the Master Servicer’s
willful malfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard for its obligations and
duties
under this Trust Agreement. Each of the Depositor, the Securities Administrator
and the Trustee shall, immediately upon notice to it, notify the Master Servicer
if a claim is made by a third party with respect to this Trust Agreement
or the
Mortgage Loans which would entitle the Depositor, the Securities Administrator
or the Trustee, as the case may be, to indemnification under this
Section 8.12, whereupon the Master Servicer shall assume the defense of any
such claim and pay all expenses in connection therewith, including counsel
fees
and expenses, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim.
The
Trust
will indemnify the Master Servicer and hold it harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the Master
Servicer may incur or sustain in connection with, arising out of or related
to
this Trust Agreement, any Servicing Agreement, any Assignment Agreement,
the
Custodial Agreement or the Certificates, except to the extent that any such
loss, liability or expense (a) is related to (i) a material breach of the
Master Servicer’s representations and warranties in the Trust Agreement or
(ii) the Master Servicer’s willful malfeasance, bad faith or negligence or
by reason of its reckless disregard of its duties and obligations under any
such
agreement or (b) does not constitute an “unanticipated expense” within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii). The Master Servicer
shall be entitled to reimburse itself for any such indemnified amount from
funds
on deposit in the Master Servicer Account.
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ARTICLE
IX
CONCERNING
THE TRUSTEE
Section
9.01 Duties
of Trustee.
The
Trustee, prior to the occurrence of a Master Servicer Event of Default and
after
the curing of any such Master Servicer Event of Default, undertakes to perform
such duties and only such duties as are specifically set forth in the Trust
Agreement. Notwithstanding anything to the contrary herein, the appointment
by
the Trustee of Xxxxx Fargo Bank as Securities Administrator to perform the
duties and obligations specifically set forth in Sections 2.03, 3.01, 3.02,
3.03, 3.05, 4.01, 4.03, 4.04, 5.02, 5.03, 5.04, 5.08, 7.01, 7.02 and 10.03
hereof, and any other duties and obligations as may be set forth in a letter
agreement between Xxxxx Fargo Bank, and the Trustee, shall not release the
Trustee from its duty to perform such duties and obligations hereunder;
provided,
however,
that
the Trustee shall not be liable for any action or failure to act by the
Securities Administrator hereunder. During a Master Servicer Event of Default
of
which a Responsible Officer of the Trustee has notice, the Trustee shall
exercise such of the rights and powers vested in it by the Trust Agreement,
and
use the same degree of care and skill in its exercise thereof as a prudent
Person would exercise or use under the circumstances in the conduct of such
Person’s own affairs.
The
Trustee upon receipt of all resolutions, certificates, statements, reports,
documents, orders or other instruments created by any Person other than itself
and furnished to it which are specifically required to be furnished pursuant
to
any provision of the Trust Agreement, Custodial Agreement, Servicing Agreement,
Sale Agreement or Assignment Agreement shall examine them to determine whether
they conform on their face to the requirements of such agreement; provided,
however,
that the
Trustee shall not be under any duty to recalculate, verify or recompute the
information provided to it hereunder by any Servicer or the Depositor. If
any
such instrument is found not to conform to the requirements of such agreement
in
a material manner, the Trustee shall take action as it deems appropriate
to have
the instrument corrected, and if the instrument is not corrected to its
satisfaction, then it will provide notice thereof to the other parties hereto
and to the Certificateholders.
No
provision of the Trust Agreement shall be construed to relieve the Trustee
from
liability for its own negligent action, its own negligent failure to act
or its
own willful misconduct; provided,
however,
that:
(a)
Prior
to the
occurrence of any Master
Servicer Event
of
Default and after the curing of all of such Events of Default, the
respective duties and obligations of the Trustee shall be determined solely
by
the express provisions of the Trust Agreement (including the obligation of
the
Trustee to enforce each Custodial Agreement against the related Custodian,
each
Sale Agreement against the related Seller, each Assignment Agreement against
GSMC and otherwise to act as owner under such agreements for the benefit
of the
Certificateholders), the Trustee shall not be liable except for the performance
of the respective duties and obligations as are specifically set forth in
the
Trust Agreement, no implied covenants or obligations shall be read into the
Trust Agreement against the Trustee and, in the absence of bad faith on the
part
of the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee that conform to the
requirements of the Trust Agreement;
73
(b)
The
Trustee shall not be personally liable for an error of judgment made in good
faith by an Officer of the Trustee unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(c)
The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates entitled to at least 25% of the Voting
Rights relating to the time, method and place of conducting any proceeding
for
any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under the Trust Agreement;
(d)
Any
determination of negligence, bad faith, willful misconduct or breach of conduct
of the Trustee shall be made only upon a finding that there is clear and
convincing evidence (and not upon the mere preponderance of evidence) thereof
in
a proceeding before a court of competent jurisdiction in which the Trustee
has
had an opportunity to defend; and
(e)
In no
event shall the Trustee be held liable for the actions or omissions of the
Master Servicer, Securities Administrator, any Servicer or Custodian (excepting
the Trustee’s own actions as Servicer or Custodian).
Section
9.02 Certain
Matters Affecting the Trustee.
(a)
Except as otherwise provided in Section 9.01 hereof:
(i)
The
Trustee may request and rely and shall be protected in acting or refraining
from
acting upon any resolution, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and
to
have been signed or presented by the proper party or parties. Further, the
Trustee may accept a copy of the vote of the Board of Directors of any party
certified by its clerk or assistant clerk or secretary or assistant secretary
as
conclusive evidence of the authority of any person to act in accordance with
such vote, and such vote may be considered as in full force and effect until
receipt by the Trustee of written notice to the contrary;
(ii)
The
Trustee may, in the absence of bad faith on its part, rely upon a certificate
of
an Officer of the appropriate Person whenever in the administration of the
Trust
Agreement the Trustee shall deem it desirable that a matter be proved or
established (unless other evidence be herein specifically prescribed) prior
to
taking, suffering or omitting any action hereunder;
74
(iii)
The
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and
in
accordance with such advice or Opinion of Counsel;
(iv)
The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by the Trust Agreement or to institute, conduct or defend
any litigation thereunder or in relation thereto at the request, order or
direction of any of the Certificateholders, pursuant to the provisions of
the
Trust Agreement, unless such Certificateholders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby;
(v)
The
Trustee shall not be liable for any action taken, suffered or omitted by
it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by the Trust Agreement;
(vi)
The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled
to at
least 25% of the Voting Rights; provided,
however,
that if
the payment reasonably satisfactory to it within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the
making of such investigation is, in the opinion of the Trustee not assured
to
the Trustee by the security afforded to it by the terms of the Trust Agreement,
the Trustee may require indemnity reasonably satisfactory to it against such
expense or liability as a condition to taking any such action;
(vii)
The
Trustee may execute any of the trusts or powers under the Trust Agreement
or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it
under the Trust Agreement, provided that any agent appointed by the Trustee
hereunder shall be entitled to all of the protections of the Trustee under
this
Agreement including, without limitation, the indemnification provided for
under
Section 9.05 hereof;
(viii)
Whenever the Trustee is authorized herein to require acts or documents in
addition to those required to be provided it in any matter, it shall be under
no
obligation to make any determination whether or not such additional acts
or
documents should be required unless obligated to do so under
Section 9.01;
75
(ix)
The
permissive right or authority of the Trustee to take any action enumerated
in
this Agreement shall not be construed as a duty or obligation;
(x)
The
Trustee shall not be deemed to have notice of any matter, including without
limitation any Event of Default, unless one of its Responsible Officers has
actual knowledge thereof or unless written notice thereof is received by
the
Trustee at its Corporate Trust Office and such notice references the applicable
Certificates generally, the applicable Servicer or Seller, the Trust or this
Agreement;
(xi)
The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial liability for the performance of any of its duties hereunder or
the
exercise of any of its rights or powers (except with respect to its obligation
to make Monthly Advances as successor Master Servicer pursuant hereto) if
there
is reasonable ground for believing that the repayment of such funds or indemnity
reasonably satisfactory to it against such risk or liability is not assured
to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Securities Administrator, any Servicer
or the
Master Servicer under this Agreement except with respect to the Trustee’s
obligation to make Monthly Advances pursuant hereto as successor Master Servicer
or any successor master servicer under this Agreement and during such time,
if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of the Master Servicer in accordance with the
terms of this Agreement;
(xii)
Subject to the other provisions of this Agreement and without limiting the
generality of this Section 9.02, the Trustee shall not have any duty
(A) to see to any recording, filing or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see the maintenance of any
such
recording of filing or depositing or to any rerecording, refiling or
redepositing any thereof, (B) to see to any insurance, (C) to see to
the payment or discharge of any tax, assessment or other governmental charge
or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Estate other than from funds available in
the
Certificate Account, or (D) to confirm or verify the contents of any
reports or certificates of any Servicer delivered to the Trustee pursuant
to
this Agreement believed by the Trustee to be genuine and to have been signed
or
presented by the proper party or parties;
(xiii)
The Trustee shall not be required to give any bond or surety in respect of
the
execution of the Trust Estate created hereby or the powers granted hereunder;
and
(xiv)
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Trustee be liable for special, indirect or consequential loss or damage
of
any kind whatsoever (including but not limited to lost profits), even if
the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
76
(b)
All
rights of action under the Trust Agreement or under any of the Certificates,
enforceable by the Trustee may be enforced by it without the possession of
any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in its name for the benefit of all the Holders of
such
Certificates, subject to the provisions of the Trust Agreement. Any recovery
of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
be
for the ratable benefit of the Holders in respect of which such judgment
has
been recovered.
Section
9.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained in the Trust Agreement and in the Certificates (other
than
the signature of the Trustee, the acknowledgments by the Trustee in
Section 2.02 hereof and the representations and warranties made in
Section 9.13 hereof) shall be taken as the statements of the Depositor, and
the Trustee assumes no responsibility for their correctness. The Trustee
makes
no representations or warranties as to the validity or sufficiency of the
Trust
Agreement, any Supplemental Trust Agreement or of the Certificates (other
than
the signature of the Trustee on the Certificates) or of any Mortgage Loan
or related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates or of the proceeds
of
such Certificates, or for the use or application of any funds paid to the
Depositor in respect of the Mortgage Loans or deposited in or withdrawn from
any
Collection Account, the Master Servicer Account or the Certificate Account
or
Collection Account other than any funds, if any, held by the Trustee in
accordance with Sections 3.01 and 3.02 or as owner of the Regular Interests
of any REMIC.
Section
9.04 Trustee
May Own Certificates.
The
Trustee in its individual capacity or any other capacity may become the owner
or
pledgee of Certificates with the same rights it would have if it were not
Trustee.
Section
9.05 Trustee’s
Fees and Expenses and Indemnification.
Pursuant
to the Trust Agreement, the Trustee shall be paid by the Securities
Administrator. The Trustee shall be entitled to reimbursement for all reasonable
expenses and disbursements incurred or made by the Trustee in accordance
with
any of the provisions of the Trust Agreement (including but not limited to
the
reasonable compensation and the expenses and disbursements of its counsel
and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence, bad faith, willful misconduct
or
breach of contract by the Trustee. The Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified and held harmless by
the
Trust against any loss, liability or expense thereof, including reasonable
attorney’s fees and expenses, incurred, arising out of or in connection with the
Trust Agreement, any Custodial Agreement, any Supplemental Trust Agreement
or
the Certificates, including, but not limited to, any such loss, liability,
or
expense including counsel fees and expenses, incurred in connection with
any
legal action against the Trust or the Trustee or any director, officer, employee
or agent thereof, or the performance of any of the Trustee’s duties under the
Trust Agreement other than any loss, liability or expense incurred by reason
of
willful misfeasance, bad faith, negligence, willful misconduct or breach
of
contract in the performance of duties under the Trust Agreement or by reason
of
reckless disregard of obligations and duties under the Trust Agreement or
that
do not constitute “unanticipated expenses” within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii). The provisions of this Section 9.05
shall survive the resignation or removal of the Trustee and the termination
of
this Agreement.
77
Section
9.06 Eligibility
Requirements for Trustee.
The
Trustee shall at all times be a corporation or national banking association
that
is not an Affiliate of the Depositor organized and doing business under the
laws
of any state or the United States of America, authorized under such laws
to
exercise corporate trust powers, having a combined capital and surplus of
at
least $50,000,000 and subject to supervision or examination by federal or
state
authority. If such corporation publishes reports of its conditions at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or
examining authority, then for the purposes of this Section the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions
so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in
Section 9.07.
Section
9.07 Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trusts created
pursuant to the Trust Agreement by giving sixty (60) days prior written notice
thereof to the Depositor, the Master Servicer and to all Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee by written instrument, in triplicate, which instrument
shall
be delivered to the resigning Trustee and to the successor trustee. A copy
of
such instrument shall be delivered to the Depositor, the Certificateholders,
the
Master Servicer, the Securities Administrator and each Servicer by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within thirty (30) days after the giving of such notice
of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
The
Depositor may at any time remove the Trustee and appoint a successor trustee
upon sixty (60) days prior written notice, in duplicate, which instrument
shall
be delivered to the Trustee so removed and to the successor trustee. If the
Depositor executes such an instrument, then the Depositor shall deliver a
copy
of such instrument to the Certificateholders, the Trustee, the Master Servicer,
the Securities Administrator and each Servicer.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may
at any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered
to
each of the Depositor, the Trustee so removed and the successor trustee so
appointed. A copy of such instrument shall be delivered to the
Certificateholders, the Master Servicer, the Securities Administrator and
each
Servicer and Seller by the Depositor.
78
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 9.08 hereof.
Section
9.08 Successor
Trustee.
Any
successor trustee appointed as provided in Section 9.07 shall execute,
acknowledge and deliver to the Depositor and to the predecessor trustee an
instrument accepting such appointment under the Trust Agreement and thereupon
the resignation or removal of the predecessor trustee shall become effective
and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor thereunder, with the like effect as if originally named as trustee
therein. The predecessor trustee shall deliver to the successor trustee all
Trustee Mortgage Loan Files and related documents and statements held by
it
under the Trust Agreement and the Depositor and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the successor
trustee, all such rights, powers, duties and obligations.
No
successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 9.06 hereof.
Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Depositor shall mail notice of the succession of such trustee under the
Trust Agreement to all Holders of Certificates at their addresses as shown
in
the Certificate Register. If the Depositor fails to mail such notice within
ten
(10) days after acceptance of appointment by the successor trustee, the Trustee
shall cause such notice to be mailed at the expense of the
Depositor.
Notwithstanding
anything to the contrary contained herein, the appointment of any successor
Trustee pursuant to any provisions of this Agreement will be subject to the
prior written consent of the Trustee, which consent will not be unreasonably
withheld.
Section
9.09 Merger
or Consolidation of Trustee.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee shall be the successor
of the Trustee under the Trust Agreement, provided
such
corporation shall be eligible under the provisions of Section 9.06, without
the execution or filing of any paper or any further act on the part of any
of
the parties hereto, anything herein to the contrary
notwithstanding.
Section
9.10 Appointment
of Co-Trustee or Separate Trustee.
For
the
purpose of meeting any legal requirements of any jurisdiction in which any
part
of the Trust or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or trustees, of all or any part of the Trust, and to vest
in
such Person or Persons, in such capacity, such title to the Trust, or any
part
thereof, and, subject to the other provisions of this Section 9.10, such
powers, duties, obligations, rights and trusts as the Depositor and the Trustee
may consider necessary or desirable. If the Depositor shall not have joined
in
such appointment within fifteen (15) days after the receipt by it of a request
so to do, the Trustee alone shall have the power to make such appointment.
No
co-trustee or separate trustee(s) hereunder shall be required to meet the
terms
of eligibility as a successor trustee under Section 9.06 hereof and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 9.08
hereof.
79
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or
performed by the Trustee and such separate trustee or co-trustee jointly,
except
to the extent that under any law of any jurisdiction in which any particular
act
or acts are to be performed the Trustee shall be incompetent or unqualified
to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed by such separate
trustee or co-trustee at the direction of the Trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to the Trust Agreement and the conditions of this
Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified
in
its instrument of appointment, either jointly with the Trustee or separately,
as
may be provided therein, subject to all the provisions of the Trust Agreement,
specifically including every provision of the Trust Agreement relating to
the
conduct of, affecting the liability of, or affording protection to, the Trustee.
Every such instrument shall be filed with the Trustee. No trustee (including
the
Trustee) shall be responsible for the actions of any co-trustee.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee,
its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of the Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by
the
Trustee, to the extent permitted by law, without the appointment of a new
or
successor trustee.
Section
9.11 Appointment
of Custodians.
The
Trustee may appoint one or more Custodians to hold all or a portion of the
Trustee Mortgage Loan Files as agent for the Trustee. The appointment of
any
Custodian may at any time be terminated and a substitute custodian appointed
therefor by the Trustee. Subject to this Article IX, the Trustee agrees to
comply with the terms of each Custodial Agreement related to such appointment
and to enforce the terms and provisions thereof against the Custodians for
the
benefit of the Certificateholders. Each Custodian shall be a depository
institution or trust company subject to supervision by federal or state
authority, shall have combined capital and surplus of at least $10,000,000
and
shall be qualified to do business in the jurisdiction in which it holds any
Trustee Mortgage Loan File. The Trustee shall not be responsible or liable
for
the acts or omissions of any Custodian appointed by it hereunder (except
for a
Custodian which is an affiliate of the Trustee). Any indemnification due
a
Custodian under a Custodial Agreement shall be an obligation of the Purchaser,
as stated in such Custodial Agreement.
80
Section
9.12 Appointment
of Officer or Agent.
The
parties hereto hereby acknowledge, and the Certificateholders by acceptance
of
their Certificates shall be deemed to acknowledge, that the Trustee may delegate
or assign to or subcontract with or authorize or appoint any qualified Person
to
perform and carry out certain non-fiduciary duties or obligations relating
to
the administration of the Trust; provided,
however,
in no
event shall any such delegation, assignment, authorization or appointment
relieve the Trustee of its liability with regard to any fiduciary duties
or
obligations hereunder. Any such agent shall nevertheless be entitled to all
the
rights, benefits and protections afforded to the Trustee under Article IX,
to
the extent assigned to any such agent by the Trustee.
Section
9.13 Representation
and Warranties of the Trustee.
The
Trustee hereby represents and warrants to the Depositor that as of the Closing
Date or as of such other date specifically provided herein:
(a)
It is
a national banking association and has been duly organized, and is validly
existing in good standing under the laws of the United States of America
with
full power and authority (corporate and other) to enter into and perform
its
obligations under the Trust Agreement;
(b)
The
Trust Agreement has been duly executed and delivered by it, and, assuming
due
authorization, execution and delivery by the Depositor and the other parties
hereto, constitutes a legal, valid and binding agreement of such entity,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law;
(c)
The
execution, delivery and performance by it of the Trust Agreement and the
consummation of the transactions contemplated thereby do not require the
consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or
taken
prior to the date thereof;
(d)
The
execution and delivery of this Trust Agreement by it have been duly authorized
by all necessary corporate action on its part; neither the execution and
delivery by it of the Trust Agreement, consummation of the transactions therein
contemplated, nor compliance by it with the provisions thereof, will conflict
with or result in a breach of, or constitute a default under, any of the
provisions of its articles of organization or by-laws or any law, governmental
rule or regulation or any judgment, decree or order binding on it to its
knowledge or any of its properties, or any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which it is a party
or
by which it is bound;
81
(e)
There
are no actions, suits or proceedings pending or, to its knowledge, threatened
or
asserted against it, before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions
contemplated by the Trust Agreement or (ii) with respect to any other
matter which in its judgment will be determined adversely to it and will
if
determined adversely to it materially adversely affect its ability to perform
its obligations under the Trust Agreement;
and
(f)
It
meets all of the eligibility requirements set forth in Section 9.06
hereof.
ARTICLE
X
TERMINATION
OF TRUST
Section
10.01 Qualified
Liquidation.
The
Provisions of this Article X are subject to the requirement that any
termination shall be a “qualified liquidation” of each associated REMIC unless
100% of the affected holders of interests in each such REMIC have consented
to
waive such requirements. For this purpose “affected holders” shall mean each
holder of a regular or residual interest which would likely receive a smaller
amount in final distributions if the termination were not a “qualified
liquidation” and such REMIC owed taxes as a result hereof.
Section
10.02 Termination.
The
party
designated in Section 4.03 of the Trust Agreement may, at its option, make
or cause a Person to make a Terminating Purchase for the Termination Price
at
the time and on the terms and conditions specified in the Trust Agreement.
Upon
such Terminating Purchase or the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the
Trust
or the disposition of the last REO Property remaining in the Trust, the
respective obligations and responsibilities under the Trust Agreement of
the
Depositor, the Master Servicer, the Trustee and the Securities Administrator
shall terminate upon payment to the Certificateholders of all amounts held
by or
on behalf of the Securities Administrator and required hereunder to be so
paid
and upon deposit of unclaimed funds otherwise distributable to
Certificateholders in the Termination Account. Notwithstanding the foregoing,
in
no event shall the Trust created hereby continue beyond the expiration of
twenty-one (21) years from the death of the last survivor of the descendants
of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court
of St.
Xxxxx, living on the date hereof.
The
Trust
also may be terminated and the Certificates retired if the Securities
Administrator determines, based upon an Opinion of Counsel, that the REMIC
status of any related REMIC has been lost or that a substantial risk exists
that
such REMIC status will be lost for the then-current taxable year.
82
Section
10.03 Procedure
for Termination.
The
party
designated in Section 4.03 of the Trust Agreement shall advise the Securities
Administrator in writing of its election to cause a Terminating Purchase,
no
later than the Distribution Date in the month preceding the Distribution
Date on
which the Terminating Purchase will occur.
Notice
of
the Distribution Date on which any such termination shall occur (or the
Distribution Date on which final payment or other Liquidation of the last
Mortgage Loan remaining in the Trust or the disposition of the last REO Property
remaining in the Trust will be distributed to Certificateholders, as reflected
in the Remittance Report for such month (the “Final
Distribution Date”)
shall
be given promptly by the Securities Administrator by letter to
Certificateholders mailed (a) in the event such notice is given in
connection with a Terminating Purchase, not earlier than the 15th day of
the
month preceding such final distribution and not later than the 5th
day of
the month of such final distribution or (b) otherwise during the month of
such final distribution on or before the Servicer Remittance Date in such
month,
in each case specifying (i) the Final Distribution Date and that final
payment of the Certificates will be made upon presentation and surrender
of
Certificates at the office of the Securities Administrator therein designated
on
that date, (ii) the amount of any such final payment and (iii) that
the Record Date otherwise applicable to such Final Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Securities Administrator. The Securities
Administrator shall give such notice to the Certificate Registrar at the
time
such notice is given to Certificateholders. In the event such notice is given
in
connection with a Terminating Purchase, the purchaser shall deliver to the
Securities Administrator for deposit in the Certificate Account on the Business
Day immediately preceding the Final Distribution Date an amount in next day
funds equal to the Termination Price, as the case may be.
Upon
presentation and surrender of the Certificates on a Distribution Date by
Certificateholders, the Securities Administrator shall distribute to
Certificateholders (a) the amount otherwise distributable on such
Distribution Date, if not in connection with Terminating Purchase, or
(b) if in connection with a Terminating Purchase, an amount determined as
follows: with respect to each Certificate with an outstanding Certificate
Balance, the outstanding Certificate Balance thereof, plus
interest
thereon through the Accounting Date preceding the Distribution Date fixed
for
termination and any previously unpaid interest, net of unrealized losses,
Realized Interest Shortfall and Shortfall with respect thereto; and in addition,
with respect to each Residual Certificate, the Percentage Interest evidenced
thereby multiplied by the difference between the Termination Price and the
aggregate amount to be distributed as provided in the first clause of this
sentence.
Upon
the
receipt of a request for release from the Master Servicer, the applicable
Custodian shall promptly release to the purchaser the Trustee Mortgage Loan
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments without recourse necessary to effectuate
such
transfer. The Trust shall terminate immediately following the deposit of
funds
in the Termination Account as provided below.
83
In
the
event that all of the Certificateholders shall not surrender their Certificates
within six months after the Final Distribution Date specified in the
above-mentioned written notice, the Securities Administrator shall give a
second
written notice to the remaining Certificateholders to surrender their
Certificates and receive the final distribution with respect thereto, net
of the
cost of such second notice. If within one year after the second notice all
the
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the
amounts otherwise payable on such Certificates. Any funds payable to
Certificateholders that are not distributed on the Final Distribution Date
shall
be deposited in a Termination Account, which shall be an Eligible Account,
to be
held for the benefit of Certificateholders not presenting and surrendering
their
Certificates in the aforesaid manner, and shall be disposed of in accordance
with this Section. The Securities Administrator shall establish the Termination
Accounts, which shall be Eligible Accounts, on or about the Closing
Date.
Section
10.04 Additional
Termination Requirements.
(a)
In
the event of a Terminating Purchase as provided in Section 10.02, the Trust
shall be terminated in accordance with the following additional requirements,
unless the Securities Administrator and the Trustee receive (i) a Special
Tax Opinion and (ii) a Special Tax Consent from each of the Holders of the
Residual Certificates (unless the Special Tax Opinion specially provides
that no
REMIC-level tax will result from the Terminating Purchase):
(i) Within
ninety (90) days prior to the Final Distribution Date, the Depositor and
the
Trustee on behalf of the related REMIC shall adopt a plan of complete
liquidation meeting the requirements of a qualified liquidation under the
REMIC
Provisions (which plan may be adopted by the Securities Administrator’s
attachment of a statement specifying the first day of the 90-day liquidation
period to the REMIC’s final federal income tax return) and the REMIC will sell
all of its assets (other than cash);
(ii) Upon
making final payment on the Regular Certificates or the deposit of any unclaimed
funds otherwise distributable to the holders of the Regular Certificates
in the
Termination Account on the Final Distribution Date, the Securities Administrator
shall distribute or credit, or cause to be distributed or credited, pro rata,
to the
Holders of the Residual Certificates representing ownership of the residual
interest in such REMIC all cash on hand relating to such REMIC after such
final
payment (other than cash retained to meet claims), and such REMIC shall
terminate at that time; and
(iii) In
no
event may the final payment on the Certificates be made after the 90th day
from
the date on which the plan of complete liquidation is adopted. A payment
into
the Termination Account with respect to any Certificate pursuant to
Section 10.03 shall be deemed a final payment on, or final distribution
with respect to, such Certificate for the purposes of this clause.
84
(b)
By
its acceptance of a Residual Certificate, the Holder thereof hereby
(i) authorizes such action as may be necessary to adopt a plan of complete
liquidation of any related REMIC and (ii) agrees to take such action as may
be necessary to adopt a plan of complete liquidation of any related REMIC
upon
the written request of the Trustee, which authorization shall be binding
upon
all successor Holders of Residual Certificates.
ARTICLE
XI
CONCERNING
THE SECURITIES ADMINISTRATOR
Section
11.01 Certain
Matters Affecting the Securities Administrator.
(a) Except
as
otherwise provided herein:
(i) The
Securities Administrator may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties. Further,
the Securities Administrator may accept a copy of the vote of the board of
directors of any party certified by its clerk or assistant clerk or secretary
or
assistant secretary as conclusive evidence of the authority of any person
to act
in accordance with such vote, and such vote may be considered as in full
force
and effect until receipt by the Securities Administrator of written notice
to
the contrary;
(ii) The
Securities Administrator may, in the absence of bad faith on its part, rely
upon
a certificate of an Officer of the appropriate Person whenever in the
administration of the Trust Agreement the Securities Administrator shall
deem it
desirable that a matter be proved or established (unless other evidence be
herein specifically prescribed) prior to taking, suffering or omitting any
action hereunder;
(iii) The
Securities Administrator may consult with counsel and the written advice
of such
counsel or any Opinion of Counsel shall be full and complete authorization
and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such written advice or Opinion of
Counsel;
(iv) The
Securities Administrator shall not be under any obligation to exercise any
of
the trusts or powers vested in it by the Trust Agreement or to institute,
conduct or defend any litigation thereunder or in relation thereto at the
request, order or direction of any of the Certificateholders, pursuant to
the
provisions of the Trust Agreement, unless such Certificateholders shall have
offered to the Securities Administrator reasonable security or indemnity
against
the costs, expenses and liabilities which may be incurred therein or
thereby;
85
(v) The
Securities Administrator shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or
within the discretion or rights or powers conferred upon it by the Trust
Agreement;
(vi) The
Securities Administrator shall not be bound to make any investigation into
the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper
or document, unless requested in writing to do so by Holders of Certificates
entitled to at least 25% of the Voting Rights; provided, however, that if
the
payment within a reasonable time to the Securities Administrator of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Securities Administrator not assured
to
the Securities Administrator by the security afforded to it by the terms
of the
Trust Agreement, the Securities Administrator may require indemnity against
such
expense or liability as a condition to taking any such action;
(vii) The
Securities Administrator may execute any of the trusts or powers under the
Trust
Agreement or perform any duties hereunder either directly or by or through
agents or attorneys, and the Securities Administrator shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it under the Trust Agreement, provided that any agent appointed
by the Securities Administrator hereunder shall be entitled to all of the
protections of the Securities Administrator under this Agreement;
(viii) Whenever
the Securities Administrator is authorized herein to require acts or documents
in addition to those required to be provided it in any matter, it shall be
under
no obligation to make any determination whether or not such additional acts
or
documents should be required unless obligated to do so hereunder;
(ix) The
permissive right or authority of the Securities Administrator to take any
action
enumerated in this Agreement shall not be construed as a duty or
obligation;
(x) The
Securities Administrator shall not be deemed to have notice of any matter,
including without limitation any Event of Default, unless one of its Responsible
Officers has actual knowledge thereof or unless written notice thereof is
received by the Securities Administrator at its Corporate Trust Office and
such
notice references the applicable Certificates generally, the applicable Servicer
or Seller, the Trust or this Agreement;
86
(xi) The
Securities Administrator shall not be required to expend or risk its own
funds
or otherwise incur financial liability for the performance of any of its
duties
hereunder or the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or adequate indemnity
against such risk or liability is not assured to it, and none of the provisions
contained in this Agreement shall in any event require the Securities
Administrator to perform, or be responsible for the manner of performance
of,
any of the obligations of any Servicer or the Master Servicer under this
Agreement;
(xii) Subject
to the other provisions of this Agreement and without limiting the generality
of
this Section 11.01, the Securities Administrator shall not have any duty
(A) to
see to any recording, filing or depositing of this Agreement or any agreement
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to see the maintenance of any such recording
of filing or depositing or to any rerecording, refiling or redepositing any
thereof, (B) to see to any insurance, (C) to see to the payment or discharge
of
any tax, assessment or other governmental charge or any lien or encumbrance
of
any kind owing with respect to, assessed or levied against, any part of the
Trust Estate other than from funds available in the Certificate Account,
or (D)
to confirm or verify the contents of any reports or certificates of any Servicer
delivered to the Securities Administrator pursuant to this Agreement believed
by
the Securities Administrator to be genuine and to have been signed or presented
by the proper party or parties;
(xiii) The
Securities Administrator shall not be required to give any bond or surety
in
respect of the execution of the Trust Estate created hereby or the powers
granted hereunder; and
(xiv) Anything
in this Agreement to the contrary notwithstanding, in no event shall the
Securities Administrator be liable for special, indirect or consequential
loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Securities Administrator has been advised of the likelihood of
such
loss or damage and regardless of the form of action.
(b) All
rights of action under the Trust Agreement or under any of the Certificates,
enforceable by the Securities Administrator may be enforced by it without
the
possession of any of the Certificates, or the production thereof at the trial
or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Securities Administrator shall be brought in name of the
Trustee for the benefit of all the Holders of such Certificates, subject
to the
provisions of the Trust Agreement. Any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Securities Administrator, its agents and
counsel, be for the ratable benefit of the Holders in respect of which such
judgment has been recovered.
87
(c) On
or
before March 15 of each year, commencing in March 2008, the Securities
Administrator, at its own expense, shall furnish, and each such party shall
cause any Servicing Function Participant engaged by it to furnish, each at
its
own expense, to the Securities Administrator and the Depositor, a report
on an
assessment of compliance with the Relevant Servicing Criteria that contains
(i)
a statement by such party of its responsibility for assessing compliance
with
the Servicing Criteria, (ii) a statement that such party used the Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (iii)
such
party’s assessment of compliance with the Relevant Servicing Criteria as of and
for the fiscal year covered by the Form 10-K required to be filed pursuant
to
Section 3.02(e), including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each
such
failure and the nature and status thereof, and (iv) a statement that a
registered public accounting firm has issued an attestation report on such
party’s assessment of compliance with the Relevant Servicing Criteria as of and
for such period.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator and any Servicing Function Participant
engaged by such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such party, and
(ii)
the Securities Administrator shall confirm that the assessments, taken as
a
whole, address all of the Servicing Criteria and, taken individually, address
the Relevant Servicing Criteria for each party as set forth on Exhibit
J
and on
any similar exhibit set forth in each Servicing Agreement and each Custodial
Agreement in respect of the applicable Servicer or Custodian and notify the
Depositor of any exceptions. None of such parties shall be required to deliver
any such assessment until April 15 in any given year if such party has received
written confirmation from the Depositor that a Form 10-K is not required
to be
filed in respect of the Trust for the preceding calendar year.
(d) On
or
before March 15 of each year, commencing in March 2008, the Securities
Administrator, at its own expense, shall cause, and shall cause any Servicing
Function Participant engaged by it to cause, each at its own expense, a
registered public accounting firm (which may also render other services to
the
Securities Administrator, or such other Servicing Function Participants,
as the
case may be) that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Depositor (and, in the case of any
other
Servicing Function Participant, the Master Servicer) to the effect that (i)
it
has obtained a representation regarding certain matters from the management
of
such party, which includes an assertion that such party has complied with
the
Relevant Servicing Criteria, and (ii) on the basis of an examination conducted
by such firm in accordance with standards for attestation engagements issued
or
adopted by the PCAOB, it is expressing an opinion as to whether such party’s
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party’s assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such
an
opinion. Such report must be available for general use and not contain
restricted use language.
88
Promptly
after receipt of such report from the Securities Administrator or any Servicing
Function Participant engaged by such parties, (i) the Depositor shall review
the
report and, if applicable, consult with or cause the Master Servicer to consult
with such parties as to the nature of any defaults by such parties, in the
fulfillment of any of each such party’s obligations hereunder or under any other
applicable agreement and (ii) the Securities Administrator shall confirm
that
each assessment submitted pursuant to Section 8.01(e) or Section 11.01(c)
is
coupled with an attestation meeting the requirements of this Section and
shall
notify the Depositor of any exceptions. Neither the Securities Administrator
nor
any Servicing Function Participant shall be required to deliver any such
assessment until April 15 in any given year if such party has received written
confirmation from the Depositor that a Form 10-K is not required to be filed
in
respect of the Trust for the preceding calendar year.
(e) The
Securities Administrator shall give prior written notice to the Depositor
of the
appointment of any Subcontractor by it and a written description (in form
and
substance satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by the Securities Administrator, specifying (i) the
identity of each such Subcontractor and (ii) which elements of the servicing
criteria set forth under Item 1122(d) of Regulation AB will be addressed
in
assessments of compliance provided by each such Subcontractor.
(f) The
Securities Administrator shall notify the Depositor and the Sponsor within
five
(5) days of its gaining knowledge thereof (i) of any legal proceedings pending
against the Securities Administrator of the type described in Item 1117 (§
229.1117) of Regulation AB, (ii) of any merger, consolidation or sale of
substantially all of the assets of the Securities Administrator and (iii)
if the
Securities Administrator shall become (but only to the extent not previously
disclosed) at any time an affiliate of any of the Depositor, any Servicer,
any
Originator contemplated by Item 1110 (§ 229.1110) of Regulation AB, any
significant obligor contemplated by Item 1112 (§ 229.1112) of Regulation AB, any
enhancement or support provider contemplated by Items 1114 or 1115 (§§
229.1114-1115) of Regulation AB or any successor thereto or any other material
party to the Trust Fund contemplated by Item 1100(d)(1) (§ 229.1100(d)(1)) of
Regulation AB, as applicable, and identified as such to the Securities
Administrator.
Section
11.02 Securities
Administrator Not Liable for Certificates or Mortgage Loans.
The
recitals contained in the Trust Agreement and in the Certificates (other
than
the signature of the Securities Administrator and the representations and
warranties made in Section 11.07 hereof) shall be taken as the statements
of the
Depositor, and the Securities Administrator assumes no responsibility for
their
correctness. The Securities Administrator makes no representations or warranties
as to the validity or sufficiency of the Trust Agreement, any Supplemental
Trust
Agreement or of the Certificates (other than the signature of the Securities
Administrator on the Certificates) or of any Mortgage Loan or related document.
The Securities Administrator shall not be accountable for the use or application
by the Depositor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the Mortgage Loans or deposited in or withdrawn from any
Collection Account, the Master Servicer Account or the Certificate Account
other
than any funds held by or on behalf of the Securities Administrator in
accordance with Sections 3.01 and 3.05.
89
Section
11.03 Securities
Administrator May Own Certificates.
The
Securities Administrator in its individual capacity or any other capacity
may
become the owner or pledgee of Certificates with the same rights it would
have
if it were not Securities Administrator.
Section
11.04 Securities
Administrator’s Fees, Expenses and Indemnification.
The
Securities Administrator shall be entitled to reimbursement for all reasonable
expenses and disbursements incurred or made by the Securities Administrator
in
accordance with any of the provisions of the Trust Agreement (including but
not
limited to the reasonable compensation and the expenses and disbursements
of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence, bad faith, willful
misconduct or breach of contract by the Securities Administrator or any expense
that does not constitute an “unanticipated expense” with the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii). On each Distribution Date, the Securities
Administrator may withdraw from the amount on deposit in the REMIC I
Distribution Account, its expenses (in accordance with this agreement). The
Securities Administrator, each Custodian and any director, officer, employee
or
agent of the Securities Administrator and each Custodian shall be indemnified
and held harmless by the Trust against any loss, liability or expense thereof,
including reasonable attorney’s fees and expenses, incurred, arising out of or
in connection with the Trust Agreement, any custodial agreement, any
Supplemental Trust Agreement or the Certificates, including, but not limited
to,
any such loss, liability, or expense incurred in connection with any legal
action against the Trust, such Custodian or the Securities Administrator
or any
director, officer, employee or agent thereof, or the performance of any of
the
Securities Administrator’s or Custodian’s duties under the Trust Agreement, any
custodial agreement or any Supplemental Trust Agreement other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith,
negligence, willful misconduct or breach of contract (except with respect
to a
Custodian) in the performance of its respective duties under the Trust
Agreement, any custodial agreement or any Supplemental Trust Agreement or
by
reason of reckless disregard of obligations and duties under the Trust
Agreement, any custodial agreement or any Supplemental Trust Agreement or
any
expense that does not constitute an “unanticipated expense” with the meaning of
Treasury Regulation Section 1.860G-1(b)(3)(ii). The Securities Administrator
hereby agrees to pay the fees and expenses of the Custodians pursuant to
the
terms of a separate agreement between each Custodian and the Securities
Administrator and the payment of such fees and expenses (as set forth in
such
separate agreement) shall be the sole obligation of the Securities
Administrator; provided, however, that the Depositor shall pay any indemnified
amounts to the Custodians. The provisions of this Section 11.04 shall survive
(a) the termination of the Trust Agreement, any custodial agreement or any
Supplemental Trust Agreement and (b) the resignation or removal of the
Securities Administrator or a Custodian, as the case may be.
90
Section
11.05 Resignation
and Removal of the Securities Administrator.
The Securities
Administrator may at any time resign and be discharged from the trusts created
pursuant to the Trust Agreement and any Supplemental Trust Agreement by giving
written notice thereof to the Depositor, the Master Servicer, the Trustee
and to
all Certificateholders. Upon receiving such notice of resignation, the Trustee
shall promptly appoint a successor securities administrator (which may be
the
Trustee) by written instrument, in triplicate, which instrument shall be
delivered to the resigning Securities Administrator and to the successor
securities administrator. A copy of such instrument shall be delivered to
the
Depositor, the Certificateholders and each Servicer by the Trustee. If no
successor securities administrator shall have been so appointed and have
accepted appointment within sixty (60) days after the giving of such notice
of
resignation, the resigning Securities Administrator may petition any court
of
competent jurisdiction for the appointment of a successor securities
administrator.
The
Trustee may at any time remove the Securities Administrator and appoint a
successor securities administrator by written instrument, in duplicate, which
instrument shall be delivered to the Securities Administrator so removed
and to
the successor securities administrator. If the Trustee executes such an
instrument, then the Trustee shall deliver a copy of such instrument to the
Certificateholders, the Depositor and each Servicer.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may
at any
time remove the Securities Administrator and appoint a successor securities
administrator by written instrument or instruments, in triplicate, signed
by
such Holders or their attorneys-in-fact duly authorized, one complete set
of
which instruments shall be delivered to each of the Depositor, the Trustee,
the
Securities Administrator so removed and the successor securities administrator
so appointed. A copy of such instrument shall be delivered to the
Certificateholders and each Servicer and Seller by the Securities
Administrator.
In
the
event that the Securities Administrator fails to comply with the provisions
of
Section 3.02 and such failure is not a result of the Securities Administrator’s
inability or failure to receive, in a timely fashion, any information from
any
other party hereto and under the applicable Servicing Agreement needed to
prepare for execution or file such form, and such failure is not a result
of the
Securities Administrator’s own negligence, bad faith or willful misconduct, the
Depositor may at any such time remove the Securities Administrator by written
instrument, in duplicate, which instrument shall be delivered to the Securities
Administrator so removed and to the Trustee. In any such event the Trustee
shall
appoint a successor securities administrator by written instrument, in
duplicate, which instrument shall be delivered to the Securities Administrator
so removed, to the Depositor and to the successor securities administrator.
If
the Trustee and Depositor execute such an instruments, then the Trustee shall
deliver copies of such instruments to the Certificateholders and each
Servicer.
Any
resignation or removal of the Securities Administrator and appointment of
a
successor securities administrator pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor securities administrator as provided in Section 11.06 hereof.
91
Section
11.06 Successor
Securities Administrator.
Any
successor securities administrator appointed as provided in Section 11.05
shall
execute, acknowledge and deliver to the Trustee and to the predecessor
Securities Administrator an instrument accepting such appointment under the
Trust Agreement and any Supplemental Trust Agreement and thereupon the
resignation or removal of the predecessor Securities Administrator shall
become
effective and such successor securities administrator without any further
act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor thereunder, with the like effect
as if
originally named as securities administrator therein. The predecessor Securities
Administrator shall deliver to the successor securities administrator, all
Trustee Mortgage Loan Files and related documents and statements held by
it
under the Trust Agreement and the Trustee and the predecessor Securities
Administrator shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting
and
confirming in the successor securities administrator, all such rights, powers,
duties and obligations.
Upon
acceptance of appointment by a successor securities administrator as provided
in
this Section, the Trustee shall mail notice of the succession of such securities
administrator under the Trust Agreement to all Holders of Certificates at
their
addresses as shown in the Certificate Register.
Notwithstanding
anything to the contrary contained herein, the appointment of any successor
securities administrator pursuant to any provisions of this Agreement will
be
subject to the prior written consent of the Trustee, which consent will not
be
unreasonably withheld.
Section
11.07 Representations
and Warranties of the Securities Administrator.
The
Securities Administrator hereby represents and warrants to the Depositor,
the
Master Servicer and the Trustee that as of the Closing Date or as of such
other
date specifically provided herein:
(a) It
is a
national banking association and has been duly organized, and is validly
existing in good standing under the laws of the United States with full power
and authority (corporate and other) to enter into and perform its obligations
under the Trust Agreement;
(b) The
Trust
Agreement has been duly executed and delivered by it, and, assuming due
authorization, execution and delivery by the Depositor, constitutes a legal,
valid and binding agreement of such entity, enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
or
other similar laws affecting creditors’ rights generally and to general
principles of equity regardless of whether enforcement is sought in a proceeding
in equity or at law;
92
(c) The
execution, delivery and performance by it of the Trust Agreement and the
consummation of the transactions contemplated thereby do not require the
consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or
taken
prior to the date thereof,
(d) The
execution and delivery of this Trust Agreement by it have been duly authorized
by all necessary corporate action on its part; none of the execution and
delivery by it of the Trust Agreement, consummation of the transactions therein
contemplated, or compliance by it with the provisions thereof, will conflict
with or result in a breach of, or constitute a default under, any of the
provisions of its articles of organization or by-laws or any law, governmental
rule or regulation or any judgment, decree or order binding on it to its
knowledge or any of its properties, or any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which it is a party
or
by which it is bound; and
(e) There
are no actions, suits or proceedings pending or, to its knowledge, threatened
or
asserted against it, before or by any court, administrative agency, arbitrator
or government body (A) with respect to any of the transactions contemplated
by
the Trust Agreement or (B) with respect to any other matter which in its
judgment will be determined adversely to it and will if determined adversely
to
it materially adversely affect its ability to perform its obligations under
the
Trust Agreement.
Section
11.08 Eligibility
Requirements for the Securities Administrator.
The
Securities Administrator shall at all times be a corporation or national
banking
association that is not an Affiliate of the Depositor organized and doing
business under the laws of any state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by
federal or state authority. If such corporation or national banking association
publishes reports of its conditions at least annually, pursuant to law or
to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of conditions so published. In case at any time the Securities
Administrator shall cease to be eligible in accordance with the provisions
of
this Section, the Securities Administrator shall resign immediately in the
manner and with the effect specified in Section 11.05. In addition, the
Securities Administrator (a) may not be an originator of Mortgage Loans,
the
Master Servicer, a Servicer, the Depositor or an affiliate of the Depositor
unless the Securities Administrator is in an institutional trust department
of
the Securities Administrator and (b) must be rated at least “A/F1” by Fitch, if
Fitch is a Rating Agency that has rated the Securities Administrator, or
the
equivalent rating by S&P or Xxxxx’x.
93
ARTICLE
XII
REMIC
TAX PROVISIONS
Section
12.01 REMIC
Administration.
(a)
(i)Unless otherwise specified in the Trust Agreement, the Securities
Administrator shall elect (on behalf of each REMIC to be created) to have
the
Trust (or designated assets thereof) treated as one or more REMICs on Form
1066
or other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued
as well as on any corresponding state tax or information return necessary
to
have the Trust (or such assets) treated as a REMIC under state law.
(ii)
In
order to enable the Securities Administrator to perform its duties as set
forth
herein, the Depositor shall provide or cause to be provided to the Securities
Administrator, within ten (10) days after the Closing Date, all information
or
data that the Securities Administrator reasonably determines to be relevant
for
tax purposes to the valuations and offering prices of the Certificates (security
instruments), including, without limitation, the price, yield, prepayment
assumption and projected cash flows of the Certificates and the Mortgage
Loans.
Thereafter, the Depositor shall provide to the Securities Administrator,
promptly upon request therefor, any additional information or data that the
Securities Administrator may from time to time reasonably request in order
to
enable the Securities Administrator to perform its duties as set forth
herein.
(b)
The
Securities Administrator shall pay any and all tax related expenses (not
including taxes) of each REMIC, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial proceedings
with respect to such REMIC that involve the Internal Revenue Service or state
tax authorities, but only to the extent that (i) such expenses are ordinary
or routine expenses, including expenses of a routine audit but not expenses
of
litigation (except as described in (ii)); or (ii) such expenses or
liabilities (including taxes and penalties) are attributable to the negligence
or willful misconduct of the Securities Administrator in fulfilling its duties
hereunder (including its duties as tax return preparer). The Securities
Administrator shall be entitled to reimbursement of the expenses to the extent
provided in clause (i) above from the Certificate Account, but only to the
extent such expenses are “unanticipated expenses” for purposes of Treasury
Regulation Section 1.860G-1(b)(3)(ii).
(c)
The
Securities Administrator shall prepare any necessary forms for election as
well
as all of the Trust’s and each REMIC’s federal and any appropriate state tax and
information returns. The Trustee shall sign and the Securities Administrator
shall file such returns on behalf of each REMIC. The expenses of preparing
and
filing such returns shall be borne by the Securities Administrator.
(d)
The
Securities Administrator shall perform all reporting and other tax compliance
duties that are the responsibility of the Trust and each REMIC under the
REMIC
Provisions or New York tax law. Among its other duties, if required by the
REMIC
Provisions, the Securities Administrator acting as agent of each REMIC, shall
provide (i) to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and
(ii) to the Securities Administrator such information as is necessary for
the Securities Administrator to discharge its obligations under the REMIC
Provisions to report tax information to the Certificateholders.
94
(e)
The
Depositor, the Securities Administrator, the Trustee and the Holders of the
Residual Certificates shall take any action or cause any REMIC to take any
action necessary to create or maintain the status of such REMIC as a REMIC
under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status.
(f)
The
Depositor, the Securities Administrator, the Trustee and the Holders of the
Residual Certificates shall not take any action, or fail to take any action,
or
cause any REMIC to take any action or fail to take any action that, if taken
or
not taken, as the case may be, could endanger the status of any such REMIC
as a
REMIC unless the Securities Administrator has received an Opinion of Counsel
(at
the expense of the party seeking to take or to fail to take such action)
to the
effect that the contemplated action or failure to act will not endanger such
status.
(g)
Any
taxes that are imposed upon the Trust or any REMIC by federal or state
(including local) governmental authorities (other than taxes paid by a party
pursuant to Section 10.02 hereof) shall be allocated in the same manner as
Realized Losses are allocated.
(h)
Xxxxx
Fargo Bank shall acquire a Residual Certificate in each REMIC and Xxxxx Fargo
Bank will act as the Tax Matters Person of each REMIC and perform various
tax
administration functions of each REMIC as its agent, as set forth in this
Section, provided that Xxxxx Fargo Bank shall not have to sign a Residual
Transferee Agreement as required under Section 5.05(c) of these Standard
Terms.
If Xxxxx Fargo Bank or an Affiliate is unable for any reason to fulfill its
duties as Tax Matters Person for a REMIC, the holder of the largest Percentage
Interest of the Residual Certificates in such REMIC shall become the successor
Tax Matters Person of such REMIC.
(i)
The
Tax Matters Person shall apply for an employer identification number with
the
Internal Revenue Service via a Form SS-4 or other comparable method for each
REMIC, for the trust created for any Supplemental Interest Trust and for
any
other trust created pursuant to the Trust Agreement or any other document
named
therein. In connection with the foregoing, the Tax Matters Person shall provide
the name and address of the person who can be contacted to obtain information
required to be reported to the holders of Regular Interests in each REMIC
as
required by IRS Form 8811.
(j)
For
purposes of compliance with the REMIC Provisions, the amount of any expenses
payable from the Trust Fund or the Termination Price, in each case pursuant
to
Section 4.03 of the Trust Agreement, that reduces amounts otherwise
distributable to the Certificates (other than the Residual Certificates)
and
that do not constitute “unanticipated expenses” of a REMIC within the meaning of
Treasury Regulation Section 1.860G-1(b)(3)(ii) shall be treated, first, as
having been distributed on the Certificates that suffered such reduction
to the
extent of such reduction and, next, as having been paid by the beneficial
holders of such Certificates to the parties to whom such expenses were
payable.
95
Section
12.02 Prohibited
Activities.
Except
as
otherwise provided in the Trust Agreement, none of the Depositor, the Trustee,
the Securities Administrator, each Servicer, the Master Servicer nor the
Holders
of the Residual Certificates shall engage in, nor shall the Master Servicer
permit (to the extent within its control), any of the following transactions
or
activities unless it has received (a) a Special Tax Opinion and (b) a
Special Tax Consent from each of the Holders of the Residual Certificates
(unless the Special Tax Opinion specially provides that no REMIC-level tax
will
result from the transaction or activity in question):
(i)
the
sale or other disposition of, or substitution for, any of the Mortgage Loans
except pursuant to (A) a foreclosure or default with respect to such
Mortgage Loans, (B) the bankruptcy or insolvency of any REMIC, (C) the
termination of any REMIC pursuant to Section 10.02, or (D) a purchase
(but not a substitution) in accordance with Section 2.03;
(ii)
the
acquisition of any Mortgage Loans for the Trust after the Closing Date except
during the three-month period beginning on the Closing Date pursuant to a
fixed
price contract in effect on the Closing Date that has been reviewed and approved
by tax counsel acceptable to the Securities Administrator;
(iii)
the
sale or other disposition of any investment in the Certificate Account or
the
Distribution Account at a gain;
(iv)
the
sale or other disposition of any asset held in a Reserve Fund for a period
of
less than three months (a “Short-Term
Reserve Fund Investment”)
if
such sale or disposition would cause 30% or more of a REMIC’s income from such
Reserve Fund for the taxable year to consist of a gain from the sale or
disposition of Short-Term Reserve Fund Investments;
(v)
the
withdrawal of any amounts from any Reserve Fund except (A) for the
distribution pro rata
to the
Holders of the Residual Certificates representing ownership of the residual
interest in the related REMIC or (B) to provide for the payment of Trust
expenses or amounts payable on the Certificates in the event of defaults
or late
payments on the Mortgage Loans or lower than expected returns on funds held
in
the Certificate Account or the Distribution Account, as provided under
Section 860G(a)(7) of the Code;
(vi)
the
acceptance of any contribution to the Trust except the following cash
contributions: (A) a contribution received during the three-month period
beginning on the Closing Date, (B) a contribution to a Reserve Fund owned
by a REMIC that is made pro rata
by the
Holders of the Residual Certificates representing ownership of the residual
interest in the related REMIC, (C) a contribution to facilitate a
Terminating Purchase that is made within the 90-day period beginning on the
date
on which a plan of complete liquidation is adopted pursuant to
Section 10.04(a)(i), or (D) any other contribution approved by the
Securities Administrator after consultation with tax counsel;
96
(vii)
except in the case of a Mortgage Loan that is a default, or as to which,
in the
reasonable judgment of any Servicer, default is reasonably foreseeable, the
Master Servicer shall not permit any modification of any material term of
a
Mortgage Loan (including, but not limited to, the interest rate, the principal
balance, the amortization schedule, the remaining term to maturity, or any
other
term affecting the amount or timing of payments on the Mortgage Loan) unless
the
Master Servicer has received an Opinion of Counsel (at the expense of the
party
seeking to modify the Mortgage Loan) to the effect that such modification
would
not be treated as giving rise to a new debt instrument for REMIC purposes;
or
(viii)
any other transaction or activity that is not contemplated by the Trust
Agreement.
Any
party
causing the Trust to engage in any of the activities prohibited in this
Section shall be liable for the payment of any tax and any associated cost
imposed on the Trust pursuant to Code Section 860F(a)(1) or 860G(d) as a
result of the Trust engaging in such activities and indemnify the Trust and
the
Master Servicer for such amounts.
ARTICLE
XIII
MISCELLANEOUS
PROVISIONS
Section
13.01 Amendment
of Trust Agreement.
The
Trust
Agreement may be amended or supplemented from time to time by the Master
Servicer, the Depositor, the Securities Administrator and the Trustee without
the consent of any of the Certificateholders to (a) cure any ambiguity,
(b) correct or supplement any provisions herein which may be inconsistent
with any other provisions herein, (c) modify, eliminate or add to any of
its provisions to such extent as shall be necessary or appropriate to maintain
the qualification of the Trust (or any assets thereof) as a REMIC under the
Code
at all times that any Certificates are outstanding, (d) to conform the
terms of this Agreement to the terms described in the Prospectus dated February
13, 2007, together with the Prospectus Supplement thereto dated May
23, 2007,
(e) to add any other provisions with respect to matters or questions
arising hereunder, or (f) to modify, alter, amend, add to or rescind any
of the
terms or provisions contained in this Agreement, provided,
that
any action pursuant to clause (e) or (f) above shall not be deemed to adversely
affect in any material respect the interests of any Certificateholder;
provided,
further,
that
the amendment shall not be deemed to adversely affect in any material respect
the interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would
not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates, as well as an Opinion of Counsel (at the expense of
the
applicable Servicer) that such amendment or supplement will not result in
the
loss by the Trust or the assets thereof of REMIC status or result in the
imposition of any taxes on the Trust or any REMIC.
The
Trust
Agreement may also be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator and the Trustee with the consent of
the
Holders of Certificates entitled to at least 66% of the Voting Rights for
the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of the Trust Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided,
however,
that no
such amendment shall (a) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (b) adversely affect in any material respect the interests of
the Holders of any Class of Certificates, or (c) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to
any
such amendment, unless each Holder of a Certificate affected by such amendment
consents. For purposes of the giving or withholding of consents pursuant
to this
Section 13.01, Certificates registered in the name of the Depositor or an
Affiliate shall be entitled to Voting Rights with respect to matters affecting
such Certificates.
97
Prior
to
consenting to any amendment, each of the Securities Administrator, the Trustee
and the Master Servicer shall be entitled to receive an Opinion of Counsel
from
the Depositor stating that the proposed amendment is authorized and permitted
pursuant to this Trust Agreement and that all conditions precedent have been
satisfied. No amendment affecting the rights, duties and indemnities of the
Custodians shall be entered into without the Custodians’ consent.
Promptly
after the execution of any such amendment, the Securities Administrator shall
notify Certificateholders of such amendment and, upon written request, furnish
a
copy of such amendment to any Certificateholder.
It
shall
not be necessary for the consent of Certificateholders under this
Section 13.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The
manner of obtaining such consents and of evidencing the authorization of
the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Securities Administrator may prescribe.
Section
13.02 Recordation
of Agreement; Counterparts.
To
the
extent required by applicable law, the Trust Agreement is subject to recordation
in all appropriate public offices for real property records in all the counties
or other comparable jurisdictions in which any or all of the properties subject
to the Mortgages are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected by the applicable Custodian
(except with respect to Deutsche Bank), on behalf of the Trustee, at the
expense
of the Trust, but only if such recordation is requested by the Depositor
and
accompanied by an Opinion of Counsel (which shall not be an expense of the
Depositor or any Custodian) to the effect that such recordation materially
and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of the Trust Agreement as herein
provided, and for any other purpose, the Trust Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall
be deemed to be an original, and such counterparts shall constitute but one
and
the same instrument.
98
Section
13.03 Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate the
Trust
Agreement or the Trust, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No
Certificateholder shall have any right to vote (except as expressly provided
for
herein) or in any manner otherwise control the operation and management of
the
Trust, or the obligations of the parties hereto, nor shall anything herein
set
forth, or contained in the terms of the Certificates, be construed so as
to
constitute the Certificateholders from time to time as partners or members
of an
association; nor shall any Certificateholder be under any liability to any
third
person by reason of any action taken by the parties to the Trust Agreement
pursuant to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of the
Trust
Agreement to institute any suit, action or proceeding in equity or at law
upon
or under or with respect to the Trust Agreement or any Sale Agreement, Servicing
Agreement, Custodial Agreement or Assignment Agreement, unless such Holder
previously shall have given to the Securities Administrator a written notice
of
default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates entitled to at least 25% of the Voting Rights
shall have made written request upon the Trustee to institute such action,
suit
or proceeding in its own name as Trustee under the Trust Agreement and shall
have offered to the Trustee indemnity reasonably satisfactory to it against
the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for fifteen (15) days after its receipt of such notice, request
and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and
the
Securities Administrator, that no one or more Holders of Certificates shall
have
any right in any manner whatever by virtue of any provision of the Trust
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under the Trust Agreement,
except in the manner therein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of
the
provisions of this Section, each and every Certificateholder, the Master
Servicer, the Securities Administrator and the Trustee shall be entitled
to such
relief as can be given either at law or in equity.
Section
13.04 Optional
Purchase of Delinquent Mortgage Loans.
The
Depositor (or its assignee), in it sole discretion, shall have the option,
but
shall not be obligated, to purchase from the Trust Fund any Mortgage Loan
that
(i) is ninety (90) days or more delinquent or (ii) has experienced an Early
Payment Default; provided,
that,
with respect to a purchase under clause (i) above, the outstanding principal
balance as of the Cut-off Date of such purchased Mortgage Loans shall not
exceed
5% of the aggregate principal balance as of the Cut-off Date of all the Mortgage
Loans in the Trust Fund. The
purchase price for any purchased Mortgage Loan shall be 100% of the Scheduled
Principal Balance of such Mortgage Loan plus accrued and unpaid interest
on the
related Mortgage Loan at the applicable mortgage interest rate, plus the
amount
of any unreimbursed Servicing Advances made by the Servicer. Upon receipt
of
such purchase price, the Servicer shall provide to the applicable Custodian
a
Request for Release and the applicable Custodian shall promptly release to
the
Depositor or the Servicer, as applicable, the Mortgage File relating to the
Mortgage Loan being repurchased.
99
Section
13.05 Notices.
All
demands and notices under the Trust Agreement shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
first-class mail, postage prepaid, or by express delivery service, to addresses,
telecopy numbers or email addresses set forth in the Trust Agreement. Any
notice
required or permitted to be mailed to a Certificateholder shall be given
by
first-class mail, postage prepaid, or by express delivery service, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in the Trust Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice. A copy of any notice required to be telecopied hereunder also
shall
be mailed to the appropriate party in the manner set forth above. A copy
of any
notice given hereunder to any other party shall be delivered to the Securities
Administrator.
Section
13.06 Severability
of Provision.
If
any
one or more of the covenants, agreements, provisions or terms of the Trust
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of the Trust Agreement and shall
in
no way affect the validity or enforceability of the other provisions of the
Trust Agreement or of the Certificates or the rights of the Holders
thereof.
Section
13.07 Sale
of Mortgage Loans.
It
is the
express intent of the Depositor and the Trustee that the conveyance of the
Mortgage Loans by the Depositor to the Trustee pursuant to the Trust Agreement
be construed as a sale of the Mortgage Loans by the Depositor to the Trustee.
It
is, further, not the intention of the Depositor and the Trustee that such
conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor. However, in
the
event that, notwithstanding the intent of the parties, the Mortgage Loans
are
held to continue to be property of the Depositor then (a) the Trust
Agreement also shall be deemed to be a security agreement within the meaning
of
Article 9 of the UCC; (b) the conveyance by the Depositor provided for
in the Trust Agreement shall be deemed to be a grant by the Depositor to
the
Trustee of a security interest in all of the Depositor’s right, title and
interest in and to the Mortgage Loans and all amounts payable to the holders
of
the Mortgage Loans in accordance with the terms thereof and all proceeds
of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts, other
than investment earnings, from time to time held or invested in any Collection
Account or the Certificate Account, whether in the form of cash, instruments,
securities or other property; (c) the possession by the Trustee or its
agent of Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be “possession
by the secured party” for purposes of perfecting the security interest pursuant
to Section 9-313 of the UCC; and (d) notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents
(as
applicable) of the Trustee for the purpose of perfecting such security interest
under applicable law. The Depositor and the Trustee shall, to the extent
consistent with the Trust Agreement, take such actions as may be necessary
to
ensure that, if the Trust Agreement were deemed to create a security interest
in
the Mortgage Loans, 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 the Trust Agreement.
100
Section
13.08 Notice
to Rating Agencies
(a)
The
Securities Administrator shall use its best efforts promptly to provide notice
to each Rating Agency with respect to each of the following of which an Officer
of the Securities Administrator has actual knowledge:
(i)
any
material change or amendment to the Trust Agreement or any agreement assigned
to
the Trust;
(ii)
the
occurrence of any Event of Default under a Servicing Agreement;
(iii)
the
resignation, termination or merger of the Depositor, the Securities
Administrator, the Trustee or any Servicer or Custodian;
(iv)
the
purchase of Mortgage Loans pursuant to Section 2.03;
(v)
the
final payment to Certificateholders;
(vi)
any
change in the location of any Collection Account, Reserve Fund or Certificate
Account; and
(vii)
any
event that would result in the inability of any Servicer to make Advances
regarding delinquent Mortgage Loans.
(b)
The
Securities Administrator shall promptly make available, through a website
located at xxx.xxxxxxx.xxx, if practicable, to each Rating Agency copies
of the
following:
(i)
each
report to Certificateholders described in Section 4.01; and
(ii)
upon
written request of any such Person, a hard copy of each Annual Compliance
Statement and other reports provided by the Servicer under each Servicing
Agreement.
101
(c)
Any
notice pursuant to this Section 13.08 shall be in writing and shall be
deemed to have been duly given if personally delivered or mailed by first
class
mail, postage prepaid or by express delivery service to each Rating Agency
at
the address specified in the Trust Agreement.
Section
13.09 Custodians’
Limitation of Liability.
Each
Custodian shall be entitled to the same rights, protections, immunities and
indemnities hereunder as afforded under its respective Custodial Agreement
and
the Trust Agreement.
102
Exhibit A
FORM
OF TRUST RECEIPT
[See
each
Custodial Agreement]
Exhibit
A-1
Exhibit B
FORM
OF FINAL CERTIFICATION
[Date]
Xxxxxxx
Xxxxx Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn.:
Xxxxxxxxx House
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, XX 00000-0000
Attention:
GSR 2007-AR2
|
RE:
|
The
Master Servicing and Trust Agreement dated as of May 1, 2007 (the
“Trust
Agreement”),
among GS Mortgage Securities Corp., as Depositor, Deutsche Bank
National
Trust Company, as a Custodian and as Trustee and Xxxxx Fargo Bank,
N.A.,
as Master Servicer, Securities Administrator and a Custodian, and
the
Standard Terms to Master Servicing and Trust Agreement (May 2007
Edition)
incorporated by reference thereto (the “Standard
Terms”)
|
Ladies
and Gentlemen:
In
accordance with the provision of Section
2.02
of the
above-referenced Standard
Terms,
the
undersigned, as the Custodian, hereby certifies (subject to any exceptions
listed on the exception report attached hereto) that as to each Mortgage
Loan
listed on the attached Mortgage Loan Schedule, it has reviewed the Trustee
Mortgage Loan File
and has
determined that (a) (i) all documents required to be delivered to it pursuant
to
clauses
(a) through (e) and (g) of the definition of Trustee Mortgage Loan
File
are in
its possession; provided
that the
Custodian has no obligation to verify the receipt of any such documents the
existence of which was not made known to the Custodian by the Trustee
Mortgage Loan File,
and
provided,
further,
that the
Custodian has no obligation to determine whether recordation of any such
modification is necessary; (b) such documents have been reviewed by it and
appear regular on their face and to relate to such Mortgage Loans; provided,
however,
that
the Custodian makes no representation and has no responsibilities as to the
authenticity of such documents, their compliance with applicable law, or
the
collectability of any of the Mortgage Loans relating thereto; and (c) each
Mortgage Note has been endorsed and each assignment has been assigned as
required under Section
2.02
of the
Standard
Terms.
Exhibit
B-1
[DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Custodian]
[XXXXX
FARGO BANK, N.A.,
as
Custodian]
By:
_____________________________
Name:
Title:
Exhibit
B-2
Exhibit C-1
FORM
OF RULE 144A AGREEMENT — QIB CERTIFICATION
______________,
20__
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxxxxx
00000
Attention:
Corporate Trust Group—GSR 2007-AR2
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
GS
Mortgage Securities Corp., Depositor
|
|
Pass-Through
Certificates Series 2007-AR2
|
|
|
having
an original principal amount of $
|
Ladies
and Gentlemen:
In
connection with our proposed purchase of the Certificates referred to above
(the
“Certificates”),
we
confirm that:
(A) We
have
received a copy of the Offering Supplement dated _________ __, 20__ (the
“Offering
Circular”),
relating to the Certificates and such other information and documents as
we deem
necessary in order to make our investment decision. We acknowledge that we
have
read and agree to the restrictions on duplication and circulation of the
Offering Circular and the matters stated in the section entitled “Notice to
Investors.”
(B) We
are a
“qualified institutional buyer” (as that term is defined in Rule 144A under the
Securities Act). We area aware that the sale of the Certificates to us is
being
made in reliance on Rule 144A under the Securities Act. We are acquiring
the
Certificates for our own account or for the account of a qualified institutional
buyer.
(C) We
understand that the offer and sale of the Certificates has not been registered
under the Securities Act and that the Certificates may not be offered, sold,
or
otherwise transferred in the absence of such registration or an applicable
exemption therefrom. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that we will not offer, sell,
pledge or otherwise transfer any Certificate, or any interest therein, except
(1) (A) in accordance with Rule 144A under the Securities Act to a
“qualified institutional buyer” (as defined therein), or (B) pursuant to an
effective registration statement under the Securities Act, and (2) in
accordance with all applicable securities laws of the states of the United
States or any other applicable jurisdiction.
Exh.
C-1-1
(D) We
understand that, on any proposed resale of any Certificates, we will be required
to furnish to the Depositor and to the Trustee such certificates, legal opinions
and other information as the Depositor, or the Trustee may reasonably require
to
confirm that the proposed sale complies with the foregoing restrictions.
We
further understand that the Certificates purchased by us will bear a legend
to
the foregoing effect.
(E) We
acknowledge that none of the Depositor, Xxxxxxx, Xxxxx & Co. (the
“Initial
Purchaser”),
the
Trustee, the Securities Administrator, or any person acting on behalf of
the
Depositor, the Initial Purchaser, the Trustee or the Securities Administrator
has made any representations concerning the Trust or the offer and sale of
the
Certificates, except as set forth in the Offering Circular.
(F) We
acknowledge that the Depositor, the Initial Purchaser, the Trustee and the
Securities Administrator and others will rely on the truth and accuracy of
the
foregoing acknowledgments, representations and agreements, and agree that
if any
of the foregoing acknowledgments, representations and agreements are no longer
accurate we shall promptly notify the Depositor, the Initial Purchaser, and
the
Trustee.
The
Transferee hereby agrees to indemnify and hold harmless the Depositor, the
Trustee and the Initial Purchaser from and against any and all loss, damage
or
liability (including attorney’s fees) due to or arising out of a breach of any
representation or warranty, confirmation or statement contained in this
letter.
The
Depositor, the Trustee, the Securities Administrator and the Initial Purchaser
are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative
or
legal proceedings or official inquiry with respect to the matters covered
hereby.
Capitalized
terms used but not otherwise defined herein shall have the meanings assigned
to
such terms in the Master Servicing and Trust Agreement, dated as of May 1,
2007,
among GS Mortgage Securities Corp., as Depositor, Deutsche Bank National
Trust
Company, as a Custodian and as Trustee and Xxxxx Fargo Bank, N.A., as Master
Servicer, Securities Administrator and a Custodian, and the Standard Terms
to
Master Servicing and Trust Agreement (May 2007 Edition) incorporated by
reference thereto.
Sincerely,
[Name
of
Transferee]
By:
Name:
Title:
Exh.
C-1-2
EXHIBIT
C-2
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RULE 144A CERTIFICATE
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 5.05(d)(B)
of the
Agreement)
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxxxxx
00000
Attention:
Corporate Trust Group—GSR 2007-AR2
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
GS
Mortgage Securities Corp., Depositor
|
|
Pass-Through
Certificates Series 2007-AR2
|
Reference
is hereby made to the Master Servicing and Trust Agreement dated as of May
1,
2007 (the “Trust Agreement”), among GS Mortgage Securities Corp., as Depositor,
Deutsche Bank National Trust Company, as a Custodian and as Trustee and Xxxxx
Fargo Bank, N.A., as Master Servicer, Securities Administrator and a Custodian,
and the Standard Terms to Master Servicing and Trust Agreement (May 2007
Edition) incorporated by reference thereto (the “Standard Terms” and together
with the Trust Agreement, the “Agreement”) Capitalized terms used but not
defined herein shall have the meanings given to them in the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Rule 144A
Certificate with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904
of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United
States
or the Transferor and any person acting on its behalf reasonably believed
that
the transferee was outside the United States;
Exh.
C-2-1
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e.
the
transferee is not a U.S. person (as defined in Regulation S).
Exh.
C-2-2
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or
legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
Exh.
C-2-3
EXHIBIT
C-3
FORM
OF
TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RULE
144A CERTIFICATE
(Transfers
pursuant to § 5.05(d)(C)
of
the
Agreement)
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxxxxx
00000
Attention:
Corporate Trust Group—GSR 2007-AR2
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
GS
Mortgage Securities Corp., Depositor
|
|
Pass-Through
Certificates Series 2007-AR2
|
Reference
is hereby made to the Master Servicing and Trust Agreement dated as of May
1,
2007 (the “Trust Agreement”), among GS Mortgage Securities Corp., as Depositor,
Deutsche Bank National Trust Company, as a Custodian and as Trustee and Xxxxx
Fargo Bank, N.A., as Master Servicer, Securities Administrator and a Custodian,
and the Standard Terms to Master Servicing and Trust Agreement (May 2007
Edition) incorporated by reference thereto (the “Standard Terms” and together
with the Trust Agreement, the “Agreement”). Capitalized terms used but not
defined herein shall have the meanings given to them in the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Rule 144A Certificate.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with
any
applicable securities laws of any state of the United States or any other
jurisdiction.
Exh.
C-3-1
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
Exh.
C-3-2
Exhibit D
FORM
OF TRANSFEREE AGREEMENT
,
20___
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxxxxx
00000
Attention:
Corporate Trust Group—GSR 2007-AR2
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
GS
Mortgage Securities Corp., Depositor
|
|
Pass-Through
Certificates Series 2007-AR2
|
|
|
having
an original principal amount of
$
|
Ladies
and Gentlemen:
In
connection with our proposed purchase of the Certificates referred to above
(the
“Certificates”),
we
confirm that:
(A) We
have
received a copy of the Offering Supplement, dated __________ ___, 20
(the
“Offering
Circular”),
relating to the Certificates and such other information and documents as
we deem
necessary in order to make our investment decision. We acknowledge that we
have
read and agree to the matters stated in the Section entitled “Notice to
Investors,” and the restrictions on duplication and circulation of the Offering
Circular.
(B) We
understand that any subsequent transfer of the Certificates is subject to
certain restrictions and conditions set forth in the Master Servicing and
Trust
Agreement, dated as of May 1, 2007, among GS Mortgage Securities Corp., as
Depositor, Deutsche Bank National Trust Company, as a Custodian and as Trustee
and Xxxxx Fargo Bank, N.A., as Master Servicer, Securities Administrator
and a
Custodian,
and the
Standard Terms to Master Servicing and Trust Agreement (May 2007 Edition)
incorporated by reference thereto (the
“Trust
Agreement”),
and
we agree to be bound by, and not to resell, pledge or otherwise transfer
the
Certificates except in compliance with such restrictions and conditions and
the
Securities Act of 1933, as amended (the “Securities
Act”)
and
our failure to comply with the foregoing agreement shall render any purported
transfer to be null and void.
(C) We
understand that the offer and sale of the Certificates has not been registered
under the Securities Act and that the Certificates may not be offered, sold,
or
otherwise transferred in the absence of such registration or an applicable
exemption thereof. We agree, on our own behalf and on behalf of any accounts
for
which we are acting as hereinafter stated, that we will not offer, sell,
pledge
or otherwise transfer any Certificate or any interest therein, except
(A) in accordance with Rule 144A under the Securities Act to a “qualified
institutional buyer” (as defined therein), (B) to an institutional
“accredited investor” (as defined below) that, prior to such transfer, furnishes
to the Trustee a signed letter contained certain representations and agreements
relating to the restrictions on transfer of the Certificates (the form of
which
letter can be obtained from the Trustee), (C) pursuant to an effective
registration statement under the Securities Act or (D) to Non-U.S. Persons
in an
offshore transaction pursuant to Rules 901 through 905 of Regulation S under
the
Securities Act, and we further agree to provide to any person purchasing
any of
the Certificates from us a notice advising such person that resale of the
Certificates are restricted as stated herein.
Exhibit
D-1
(D) We
understand that, on any proposed resale of any Certificates, we will be required
to furnish to the Depositor and to the Trustee of such certificates, legal
opinions and other information as the Depositor or the Trustee may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Certificates purchased by us
will
bear a legend to the foregoing effect.
(E) We
are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have knowledge and experience
in financial and business matters as to be capable of evaluating the merits
and
risks of our investment in the Certificates, and we and any accounts for
which
we are acting are each able to bear the economic risks of our or their
investment.
(F) We
are
acquiring the Certificates purchased by us for our own account or for one
or
more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.
(G) We
are
acquiring at least the required minimum principal amount of the Certificates
for
each account for which we are purchasing such Certificates and will not offer,
sell, pledge or otherwise transfer any such Certificates or any interest
therein
at any time except in the Required Minimum denomination.
(H) We
have
been furnished all information regarding the Certificates that we have requested
from the Depositor and the Trustee.
(I) We
acknowledge that neither the Trust, the Depositor, Xxxxxxx, Sachs & Co. (the
“Initial
Purchaser”)
nor
the Trustee nor any person acting on behalf of the Trust, the Depositor,
the
Initial Purchaser or the Trustee has made any representations concerning
the
Trust or the offer and sale of the Certificates, except as set forth in the
Offering Circular.
(J) We
have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of purchasing the
Certificates.
(K) If
we are
acquiring any of the Certificates as fiduciary or agent for one or more
accounts, we represent that we have sole investment discretion with respect
to
each such amount and that we have full power to make the forgoing
acknowledgments, representations and agreements with respect to each such
account as set forth.
Exhibit
D-2
(L) We
acknowledge that the Depositor, the Initial Purchaser, the Trustee, and others
will rely on the truth and accuracy of the foregoing acknowledgments,
representations and agreements, and agree that if any of the foregoing
acknowledgments, representations and agreements are no longer accurate we
shall
promptly notify the Depositor, the Initial Purchaser and the
Trustee.
The
Transferee hereby agrees to indemnify and hold harmless the Trust, the
Depositor, the Trustee, and the Initial Purchaser from and against any and
all
loss, damage or liability (including attorney’s fees) due to or arising out of a
breach of any representation or warranty, confirmation or statement contained
in
this letter.
The
Depositor, the Trustee, the Securities Administrator and the Initial Purchaser
are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative
or
legal proceedings or official inquiry with respect to the matters covered
hereby.
Capitalized
terms used but not otherwise defined herein shall have the meanings assigned
to
such terms in the Trust Agreement.
Sincerely,
[Name
of
Transferee]
By:
Name:
Title:
Exhibit
D-3
Exhibit E
FORM
OF BENEFIT PLAN AFFIDAVIT
|
Re:
|
GS
Mortgage Securities Corp.,
|
|
|
as
Depositor
|
|
|
GSR
Mortgage Loan Trust
|
|
|
2007-AR2
(the “Trust”)
|
|
STATE
OF ____________
|
)
|
|
|
)
ss.:
|
|
COUNTY
OF _________
|
)
|
Under
penalties of perjury, I, the undersigned, declare that, to the best of my
knowledge and belief, the following representations are true, correct, and
complete.
1. I
am a
duly authorized signatory of _______________, a ____________ (the “Transferee”),
whose
taxpayer identification number is _______________, and on behalf of which
I have
the authority to make this affidavit.
2. The
Transferee is acquiring the _________ and __________ Certificates (the
“Certificates”),
each
representing an interest in the Trust, for certain assets of which one or
more
real estate mortgage investment conduit (“REMIC”)
elections are to be made under Section 860D of the Internal Revenue Code of
1986, as amended (the “Code”).
3. The
Transferee understands that the Certificates will bear the following
legend:
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE WITH (A) A CERTIFICATION TO THE EFFECT THAT
SUCH
TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE “CODE”), (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING
ON BEHALF OF, OR USING THE ASSETS OF, ANY SUCH PLAN OR (2) IF THE CERTIFICATE
HAS BEEN SUBJECT TO AN ERISA-QUALIFYING UNDERWRITING, IS AN INSURANCE COMPANY
PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY
GENERAL ACCOUNT” (AS SUCH TERM IS DEFINED IN SECTION V(E) OF THE PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 (“PTCE 95-60”)) AND THE PURCHASE AND HOLDING
OF SUCH CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE 95-60; OR
(B)
AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE SECURITIES
ADMINISTRATOR, UPON WHICH THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE
MASTER
SERVICER AND THE DEPOSITOR SHALL BE ENTITLED TO RELY TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL
NOT
RESULT IN ANY NON-EXEMPT PROHIBITED TRANSACTIONS UNDER SECTION 406 OF ERISA
OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE SECURITIES
ADMINISTRATOR, THE MASTER SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN BY SUCH PARTIES IN THE TRUST AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUST FUND OR ANY OF THE
ABOVE
PARTIES. A TRANSFEREE OF A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO HAVE
MADE A
REPRESENTATION AS REQUIRED IN THE TRUST AGREEMENT.
Exhibit
E-1
4. The
Transferee either:
(a) is
neither an employee benefit plan or other retirement arrangement subject
to
section 406 of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”),
or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),
nor a
person acting on behalf of, or using the assets of, any such plan or
arrangement; or
(b) if
the
Certificates have been subject to an ERISA-Qualifying Underwriting, is an
insurance company purchasing such Certificates with funds contained in an
“insurance company general account” (as such term is defined in Section V(e) of
the Prohibited Transaction Class Exemption 95-60 (“PTCE
95-60”))
and
the purchase and holding of such Certificate are covered under Sections I
and
III of PTCE 95-60; or
(c) has
provided a Benefit Plan Opinion satisfactory to the Trustee and the Securities
Administrator, upon which the Trustee, the Securities Administrator, the
Master
Servicer and the Depositor shall be entitled to rely to the effect that the
purchase or holding of such Certificate by the prospective transferee will
not
result in any non-exempt prohibited transactions under Section 406 of ERISA
or
Section 4975 of the Code and will not subject the Trustee, the Securities
Administrator, the Master Servicer or the Depositor to any obligation in
addition to those undertaken by such parties in the Trust Agreement, which
Benefit Plan Opinion shall not be an expense of the Trust or any of the above
parties.
Exhibit
E-2
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be duly executed
on its behalf, by its duly authorized officer on this ____day of ________,
20 .
[Name
of
Transferee]
By:
Name:
Title:
Personally
appeared before me ________________, known or proved to me to be the same
person
who executed the foregoing instrument and to be a _________________________
of
the Transferee, and acknowledged to me that he executed the same as his or
her
free act and deed and as the free act and deed of the Transferee.
Subscribed
and sworn to before me this
______
day of ________________, 20 .
Notary
Public
My
commission expires:
Exhibit
E-3
Exhibit F
FORM
OF RESIDUAL TRANSFEREE AGREEMENT
_________________
(DATE)
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxxxxx
00000
Attention:
Corporate Trust Group—GSR 2007-AR2
|
Re:
|
Master
Servicing and Trust Agreement, dated as of May
1,
2007, among GS Mortgage Securities Corp., as Depositor, Xxxxx Fargo
Bank,
N.A., as Master Servicer, Securities Administrator and a Custodian
and
Deutsche Bank National Trust Company, as a Custodian and Trustee
of GSR
Mortgage Loan Trust 2007-AR2
|
Ladies
and Gentlemen:
In
connection with the purchase on the date hereof of the captioned securities
(the
“Residual
Certificate”),
to be issued pursuant to the Master Servicing and Trust Agreement, dated
as of
May
1,
2007, among GS Mortgage Securities Corp., Xxxxx
Fargo Bank, N.A.,
as Master Servicer, Securities Administrator and a Custodian and Deutsche
Bank
National Trust Company, as Trustee and a Custodian (the “Trustee”),
which incorporates by reference the Standard Terms to Trust Agreement, May
2007
Edition (the “Standard
Terms to Trust Agreement”)
(collectively, the “Trust
Agreement”),
the undersigned hereby certifies and covenants to the transferor, the Depositor,
the Trustee and the Trust as follows:
1. We
certify that on the date hereof we have simultaneously herewith delivered
to you
an affidavit certifying, among other things, that (A) we are not a
Disqualified Organization and (B) we are not purchasing such Residual
Certificate on behalf of a Disqualified Organization. We understand that
any
breach by us of this certification may cause us to be liable for a tax imposed
upon transfers to Disqualified Organizations.
2. We
acknowledge that we will be the beneficial owner of the Residual Certificate
and
that the Residual Certificate will be registered in our name and not in the
name
of a nominee.
3. We
certify that no purpose of our purchase of the Residual Certificate is to
avoid
or impede the assessment or collection of tax.
Exhibit
F-1
4. (A) We
understand that the Residual Certificate represents for federal income tax
purposes a “residual interest” in a real estate mortgage investment conduit and
(B) we understand that as the holder of the Residual Certificate we will be
required to take into account, in determining our taxable income, our pro
rata
percentage interest of the taxable income of each REMIC formed pursuant to
the
Trust Agreement in accordance with all applicable provisions of the Internal
Revenue Code of 1986, as amended (the “Code”).
5. We
understand that if, notwithstanding the transfer restrictions, any of the
Residual Certificates is in fact transferred to a Disqualified Organization,
a
tax may be imposed on the transferor of such Residual Certificate. We agree
that
any breach by us of these representations shall render such transfer of such
Residual Certificate by us absolutely null and void and shall cause no rights
in
the Residual Certificate to vest in the transferee.
6. The
sale to us and our purchase of the Residual Certificates constitutes a sale
for
tax and all other purposes and each party thereto has received due and adequate
consideration. In our view, the transaction represents fair value, representing
the results of arms length negotiations and taking into account our analysis
of
the tax and other consequences of investment in the Residual
Certificates.
7. Unless
this provision is explicitly waived by the transferor to us of the Residual
Certificates, we expect that the purchase of the Residual Certificates, together
with the receipt of the price, if any, therefor will be economically neutral
or
profitable to us overall, after all related expenses (including taxes) have
been
paid and based on conservative assumptions with respect to discount rates,
prepayments and other factors necessary to evaluate profitability.
8. We
are a
“U.S. Person” within the meaning of Section 7701(a)(30) of the Code. We are
duly organized and validly existing under the laws of the jurisdiction of
our
organization. We are neither bankrupt nor insolvent nor do we have reason
to
believe that we will become bankrupt or insolvent. We have conducted and
are
conducting our business so as to comply in all material respects with all
applicable statutes and regulations. The person executing and delivering
this
letter on our behalf is duly authorized to do so, the execution and delivery
by
us of this letter and the consummation of the transaction on the terms set
forth
herein are within our corporate power, and upon such execution and delivery,
this letter will constitute our legal, valid and binding obligation, enforceable
against us in accordance with its terms, subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
and
other laws affecting the right of creditors generally and to general principles
of equity and the discretion of the court (regardless of whether enforcement
of
such remedies is considered in a proceeding in equity or at law).
9. Neither
the execution and delivery by us of this letter, nor the compliance by us
with
the provisions hereof, nor the consummation by us of the transactions as
set
forth herein, will (A) conflict with or result in a breach of, or
constitute a default or result in the acceleration of any obligation under,
our
certificate of incorporation or by-laws or, after giving effect to the consents
or the taking of the actions contemplated by clause (B) of this
subparagraph, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on us or our properties, or any of the
provisions of any indenture or mortgage or any other contract or instrument
to
which we are a party or by which we or any of our properties is bound, or
(B) require the consent of or notice to or any filing with, any person,
entity or governmental body, which has not been obtained or made by
us.
Exhibit
F-2
10. We
anticipate being a profit-making entity on an ongoing basis.
11. We
have filed all required federal and state income tax returns and have paid
all
federal and state income taxes due; we intend to file and pay all such returns
and taxes in the future. We acknowledge that as the holder of the Residual
Certificates, to the extent the Residual Certificates would be treated as
a
noneconomic residual interest within the meaning of U.S. Treasury Regulation
Section 1.860E-1(c)(2), we may incur tax liabilities in excess of cash
flows generated by the Residual Certificates and that we intend to pay taxes
associated with holding the Residual Certificates as they become
due.
12. We
agree that in the event that at some future time we wish to transfer any
interest in the Residual Certificates, we will transfer such interest in
the
Residual Certificates only to a transferee that:
(a) is
not a Disqualified Organization and is not purchasing such interest in the
Residual Certificates on behalf of a Disqualified Organization, and
(b) has
delivered to the Securities Administrator a transferee agreement in the form
of
Exhibit D to the Standard Terms to Trust Agreement and an affidavit in the
form of Exhibit G-1 or Exhibit G-2, as applicable, to the Standard
Terms to Trust Agreement and, if requested by the Securities Administrator,
an
opinion of counsel, in form acceptable to the Securities Administrator, that
the
proposed transfer will not cause the Residual Certificates to be held by
a
Disqualified Organization.
13. We
are
knowledgeable and experienced in financial, business and tax matters generally
and in particular, the investment risks and tax consequences of REMIC residuals
that provide little or no cash flow, and are capable of evaluating the merits
and risks of an investment in the Residual Certificates; we are able to bear
the
economic risks of an investment in the Residual Certificates.
14. In
addition, we acknowledge that the Securities Administrator will not register
the
transfer of a Residual Certificate to a transferee that is not a “U.S. Person”
within the meaning of Section 7701(a)(30) of the Code unless the Securities
Administrator has received the affidavit required pursuant to Section 5.05(f)
of
the Standard Terms to Trust Agreement.
15. Capitalized
terms used herein but not defined herein shall have the meanings ascribed
to
such terms in the Standard Terms to Trust Agreement.
16. We
hereby
designate the Securities Administrator as our fiduciary to perform the duties
of
the tax matters person for each REMIC formed pursuant to the Trust
Agreement.
(signature
page follows)
Exhibit
F-3
IN
WITNESS WHEREOF, the undersigned has caused this Agreement be validly executed
by its duly authorized representative as of the day and year first above
written.
[Name
of
Transferee]
By:
Its:
Taxpayer
ID #
Personally
appeared before me ________________, known or proved to me to be the same
person
who executed the foregoing instrument and to be a _________________________
of
the Transferee, and acknowledged to me that he executed the same as his or
her
free act and deed and as the free act and deed of the Transferee.
Subscribed
and sworn to before me this
______
day of ________________, 20 .
Notary
Public
My
commission expires:
Exhibit
F-4
Exhibit G-1
FORM
OF NON-U.S. PERSON AFFIDAVIT
AND
AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A)
and 860E(e)(4)
OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
|
Re:
|
GS
Mortgage Securities Corp., Depositor
|
|
|
GSR
Mortgage Loan Trust
|
|
|
2007-AR2
(the “Trust”)
|
|
STATE
OF __________________
|
)
|
|
|
)
ss.:
|
|
CITY
OF ___________________
|
)
|
Under
penalties of perjury, I, the undersigned, declare that to the best of my
knowledge and belief, the following representations are true, correct and
complete:
1. I
am a
duly authorized officer of ___________________ (the “Transferee”),
and
on behalf of which I have the authority to make this affidavit.
2. The
Transferee is acquiring all or a portion of the securities (the “Residual
Certificates”),
which
represent a residual interest in one or more real estate mortgage investment
conduits (each, a “REMIC”)
for
which elections are to be made under Section 860D of the Internal Revenue
Code of 1986, as amended (the “Code”).
3. The
Transferee is a foreign person within the meaning of Treasury Regulation
Section 1.860G-3(a)(1) (i.e.,
a
person other than (i) a citizen or resident of the United States,
(ii) a corporation or partnership that is organized under the laws of the
United States or any jurisdiction thereof or therein, (iii) an estate that
is subject to United States federal income tax regardless of the source of
its
income or (iv) a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust and one
or
more United States Persons have the authority to control all substantial
decisions of the trust) who would be subject to United States income tax
withholding pursuant to Section 1441 or 1442 of the Code on income derived
from the Residual Certificates (a “Non-U.S.
Person”).
4. The
Transferee agrees that it will not hold the Residual Certificates in connection
with a trade or business in the United States, and the Transferee understands
that it will be subject to United States federal income tax under
Sections 871 and 881 of the Code in accordance with Section 860G of
the Code and any Treasury regulations issued thereunder on “excess inclusions”
that accrue with respect to the Residual Certificates during the period the
Transferee holds the Residual Certificates.
Exh.
G-1-1
5. The
Transferee understands that the federal income tax on excess inclusions with
respect to the Residual Certificates may be withheld in accordance with
Section 860G(b) of the Code from distributions that otherwise would be made
to the Transferee on the Residual Certificates and, to the extent that such
tax
has not been imposed previously, that such tax may be imposed at the time
of
disposition of any such Residual Certificate pursuant to Section 860G(b) of
the Code.
6. The
Transferee agrees (i) to file a timely United States federal income tax
return for the year in which disposition of a Residual Certificate it holds
occurs (or earlier if required by law) and will pay any United States federal
income tax due at that time and (ii) if any tax is due at that time, to
provide satisfactory written evidence of payment of such tax to the Trustee
or
its designated paying agent or other person who is liable to withhold federal
income tax from a distribution on the Residual Certificates under
Sections 1441 and 1442 of the Code and the regulations thereunder (the
“Withholding
Agent”).
7. The
Transferee understands that until it provides written evidence of the payment
of
tax due upon the disposition of a Residual Certificate to the Withholding
Agent
pursuant to paragraph 6 above, the Withholding Agent may (i) withhold
an amount equal to such tax from future distributions made with respect to
the
Residual Certificate to subsequent transferees (after giving effect to the
withholding of taxes imposed on such subsequent transferees), and (ii) pay
the withheld amount to the Internal Revenue Service.
8. The
Transferee understands that (i) the Withholding Agent may withhold other
amounts required to be withheld pursuant to United States federal income
tax
law, if any, from distributions that otherwise would be made to such transferee
on each Residual Certificate it holds and (ii) the Withholding Agent may
pay to the Internal Revenue Service amounts withheld on behalf of any and
all
former holders of each Residual Certificate held by the Transferee.
9. The
Transferee understands that if it transfers a Residual Certificate (or any
interest therein) to a United States Person (including a foreign person who
is
subject to net United States federal income taxation with respect to such
Residual Certificate), the Withholding Agent may disregard the transfer for
federal income tax purposes if the transfer would have the effect of allowing
the Transferee to avoid tax on accrued excess inclusions and may continue
to
withhold tax from future distributions as though the Residual Certificate
were
still held by the Transferee.
10. The
Transferee understands that a transfer of a Residual Certificate (or any
interest therein) to a Non-U.S. Person (i.e.,
a
foreign person who is not subject to net United States federal income tax
with
respect to such Residual Certificate) will not be recognized unless the
Withholding Agent has received from the transferee an affidavit in substantially
the same form as this affidavit containing these same agreements and
representations.
11. The
Transferee understands that distributions on a Residual Certificate may be
delayed, without interest, pending determination of amounts to be
withheld.
Exh.
G-1-2
12. The
Transferee is not a “Disqualified Organization” (as defined below), and the
Transferee is not acquiring a Residual Certificate for the account of, or
as
agent or nominee of, or with a view to the transfer of direct or indirect
record
or beneficial ownership to, a Disqualified Organization. For the purposes
hereof, a Disqualified Organization is any of the following: (i) the United
States, any State or political subdivision thereof, any foreign government,
any
international organization, or any agency or instrumentality of any of the
foregoing; (ii) any organization (other than a xxxxxx’x cooperative as
defined in Section 521 of the Code) that is exempt from federal income
taxation (including taxation under the unrelated business taxable income
provisions of the Code); (iii) any rural telephone or electrical service
cooperative described in Section 1381(a)(2)(C) of the Code; or
(iv) any other entity treated as a “disqualified organization” within the
meaning of Section 860E(e)(5) of the Code. In addition, a corporation will
not be treated as an instrumentality of the United States or of any state
or
political subdivision thereof if all of its activities are subject to tax
and,
with the exception of the Federal Home Loan Mortgage Corporation, a majority
of
its board of directors is not selected by such governmental unit.
13. The
Transferee agrees to consent to any amendment of the Trust Agreement that
shall
be deemed necessary by the Depositor (upon the advice of counsel to the
Depositor) to constitute a reasonable arrangement to ensure that no interest
in
a Residual Certificate will be owned directly or indirectly by a Disqualified
Organization.
14. The
Transferee acknowledges that Section 860E(e) of the Code would impose a
substantial tax on the transferor or, in certain circumstances, on an agent
for
the Transferee, with respect to any transfer of any interest in any Residual
Certificate to a Disqualified Organization.
Capitalized
terms used and not otherwise defined herein shall have the meanings assigned
to
them in the Master Servicing and Trust Agreement, dated as of May 1, 2007,
among
GS Mortgage Securities Corp., as Depositor, Deutsche Bank National Trust
Company, as a Custodian and as Trustee and Xxxxx Fargo Bank, N.A., as Master
Servicer, Securities Administrator and a Custodian,
and the
Standard Terms to Master Servicing and Trust Agreement (May 2007 Edition)
incorporated by reference thereto.
Exh.
G-1-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be duly executed
on its behalf, by its duly authorized officer as of the _______ day of
_____________, 20__.
[Name
of
Transferee]
By:
Its:
Personally
appeared before me ___________________________, known or proved to me to
be the
same person who executed the foregoing instrument and to be a
______________________ of the Transferee, and acknowledged to me that he
or she
executed the same as his or her free act and deed and as the free act and
deed
of the Transferee.
Subscribed
and sworn before me this ______ day of __________, 20__.
Notary
Public
My
commission expires the _____ day of ________________, 20__.
Exh.
G-1-4
Exhibit G-2
FORM
OF U.S. PERSON AFFIDAVIT
AND
AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A)
and 860E(e)(4)
OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
|
Re:
|
GS
Mortgage Securities Corp., Depositor
|
|
|
GSR
Mortgage Loan Trust
|
|
|
2007-AR2
(the “Trust”)
|
|
STATE
OF __________________
|
)
|
|
|
)
ss.:
|
|
CITY
OF ___________________
|
)
|
Under
penalties of perjury, I, the undersigned declare that, to the best of my
knowledge and belief, the following representations are true, correct and
complete:
1. I
am a
duly authorized officer of ______________________ (the “Transferee”),
on
behalf of which I have the authority to make this affidavit.
2. The
Transferee is acquiring all or a portion of the securities (the “Residual
Certificates”), which represent a residual interest in one or more real estate
mortgage investment conduits (each, a “REMIC”)
for
which elections are to be made under Section 860D of the Internal Revenue
Code of 1986, as amended (the “Code”).
3. The
Transferee either is (i) a citizen or resident of the United States,
(ii) a domestic partnership or corporation, (iii) an estate that is
subject to United States federal income tax regardless of the source of its
income, (iv) a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust and one
or
more United States Persons have the authority to control all substantial
decisions of the trust, or (v) a foreign person who would be subject to
United States income taxation on a net basis on income derived from the Residual
Certificates (a “U.S.
Person”).
4. The
Transferee is a not a “Disqualified Organization” (as defined below), and the
Transferee is not acquiring a Residual Certificate for the account of, or
as
agent or nominee of, or with a view to the transfer of direct or indirect
record
or beneficial ownership to, a Disqualified Organization. For the purposes
hereof, a Disqualified Organization is any of the following: (i) the United
States, any state or political subdivision thereof, any foreign government,
any
international organization, or any agency or instrumentality of any of the
foregoing; (ii) any organization (other than a xxxxxx’x cooperative as
defined in Section 521 of the Code) that is exempt from federal income
taxation (including taxation under the unrelated business taxable income
provisions of the Code); (iii) any rural telephone or electrical service
cooperative described in § 1381(a)(2)(C) of the Code; or (iv) any
other entity treated as a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Code. In addition, a corporation will not be
treated as an instrumentality of the United States or of any state or political
subdivision thereof if all of its activities are subject to tax and, with
the
exception of the Federal Home Loan Mortgage Corporation, a majority of its
board
of directors is not selected by such governmental unit.
Exh.
G-2-1
5. The
Transferee agrees to consent to any amendment of the Trust Agreement that
shall
be deemed necessary by the Depositor (upon the advice of counsel to the
Depositor) to constitute a reasonable arrangement to ensure that no interest
in
a Residual Certificate will be owned directly or indirectly by a Disqualified
Organization.
6. The
Transferee acknowledges that Section 860E(e) of the Code would impose a
substantial tax on the transferor or, in certain circumstances, on an agent
for
the Transferee, with respect to any transfer of any interest in any Residual
Certificate to a Disqualified Organization.
Capitalized
terms used and not otherwise defined herein shall have the meanings assigned
to
them in the Master Servicing and Trust Agreement, dated as of May 1, 2007,
among
GS Mortgage Securities Corp., as Depositor, Deutsche Bank National Trust
Company, as a Custodian and as Trustee and Xxxxx Fargo Bank, N.A., as Master
Servicer, Securities Administrator and a Custodian,
and the
Standard Terms to Master Servicing and Trust Agreement (May 2007 Edition)
incorporated by reference thereto.
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be duly executed
on its behalf, by its duly authorized officer this ____ day of ______,
20__.
[Name
of
Transferee]
By:
Its:
Personally
appeared before me ___________________, known or proved to me to be the same
person who executed the foregoing instrument and to be a _______________
of the
Transferee, and acknowledged to me that he or she executed the same as his
or
her free act and deed and as the free act and deed of the
Transferee.
Subscribed
and sworn before me this ____ day of ________, 20__.
Notary
Public
My
commission expires the ____ day of ____________________, 20__.
Exh.
G-2-2
Exhibit H
FORM
OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR BY THE
SECURITIES
ADMINISTRATOR
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
GS
Mortgage Securities Corp., Depositor
|
|
GSR
Mortgage Loan Trust 2007-AR2 (the “Trust”)
|
Reference
is made to the Master Servicing and Trust Agreement, dated as of May 1, 2007
(the “Trust
Agreement”),
by
and among Xxxxx Fargo Bank, N.A., as Master Servicer (the “Master
Servicer”),
as
Securities Administrator (the “Securities
Administrator”)
and as
a Custodian, Deutsche Bank National Trust Company, as Trustee (the “Trustee”)
and as
a Custodian, and GS Mortgage Securities Corp., as Depositor (the “Depositor”)
and the
Standard Terms to Master Servicing and Trust Agreement (May
2007
Edition)
incorporated by reference thereto.
The
Securities Administrator hereby certifies to the Depositor, and its officers,
directors and affiliates, and with the knowledge and intent that they will
rely
upon this certification, that:
|
(i)
|
The
Securities Administrator has reviewed the annual report on Form
10-K for
the fiscal year [ ], and all reports on Form 10-D containing distribution
reports filed in respect of periods included in the year covered
by that
annual report, relating to the above-referenced
trust;
|
|
(ii)
|
Subject
to paragraph (iv), the distribution information in the distribution
reports contained in all Monthly Form 10-D’s included in the year covered
by the annual report on Form 10-K for the calendar year [___],
taken as a
whole, does not contain any untrue statement of a material fact
or omit to
state a material fact required by the Trust Agreement to be included
therein and necessary to make the statements made, in light of
the
circumstances under which such statements were made, not misleading
as of
the last day of the period covered by that annual
report;
|
|
(iii)
|
The
distribution information required to be provided by the Securities
Administrator under the Trust Agreement is included in these
reports.
|
|
(iv)
|
In
compiling the distribution information and making the foregoing
certifications, the Securities Administrator has relied upon information
furnished to it by the Master Servicer under the Trust Agreement.
The
Securities Administrator shall have no responsibility or liability
for any
inaccuracy in such reports resulting from information so provided
by the
Master Servicer.
|
(signature
page follows)
Exhibit
H-1
Date:
Xxxxx
Fargo Bank, N.A.,
as
Securities Administrator
By: ____________________________
Name: ____________________________
Title: ____________________________
Exhibit
H-2
Exhibit I
FORM
OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR BY THE
MASTER
SERVICER
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
GS
Mortgage Securities Corp., Depositor
GSR
Mortgage Loan Trust 2007-AR2 (the “Trust”)
|
Reference
is made to the Master Servicing and Trust Agreement, dated as of May 1, 2007
(the “Trust
Agreement”),
by
and among Xxxxx Fargo Bank, N.A., as Master Servicer (the “Master
Servicer”),
as
Securities Administrator (the “Securities
Administrator”)
and as
a Custodian, Deutsche Bank National Trust Company, as Trustee (the “Trustee”)
and as
a Custodian, and GS Mortgage Securities Corp., as Depositor (the “Depositor”)
and the
Standard Terms to Master Servicing and Trust Agreement (May
2007
Edition)
incorporated by reference thereto.
The
Master Servicer hereby certifies to the Depositor, the Securities Administrator
and the Trustee, and their respective officers, directors and affiliates,
and
with the knowledge and intent that they will rely upon this certification,
that:
|
(i)
|
Based
on our knowledge, the information prepared by the Master Servicer
and
relating to the mortgage loans master serviced by the Master Servicer
and
provided by the Master Servicer to the Securities Administrator
and the
Trustee and in its reports to the Securities Administrator and
the Trustee
is accurate and complete in all material respects as of the last
day of
the period covered by such report;
|
|
(ii)
|
Based
on our knowledge, the servicing information required to be provided
to the
Securities Administrator and the Trustee by the Master Servicer
pursuant
to the Trust Agreement has been provided to the Securities Administrator
and the Trustee;
|
|
(iii)
|
Based
upon the review required under the Trust Agreement, and except
as
disclosed in its reports, the Master Servicer as of the last day
of the
period covered by such reports has fulfilled its obligations under
the
Trust Agreement; and
|
|
(iv)
|
In
compiling the distribution information and making the foregoing
certifications, the Master Servicer has relied upon information
furnished
to it by the servicers under the respective servicing agreements.
The
Master Servicer shall have no responsibility or liability for any
inaccuracy in such reports resulting from information so provided
by such
servicers.
|
Exhibit
I-1
Date:
Xxxxx
Fargo Bank, N.A.,
as
Master
Servicer
By: ____________________________
Name: ____________________________
Title: ____________________________
Exhibit
I-2
Exhibit
J
RELEVANT
SERVICING CRITERIA
|
Servicing
Criteria
|
Applicable
Servicing Criteria for Custodians
|
Applicable
Servicing
Criteria
for Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
||
|
General
Servicing Considerations
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
Exhibit
J-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria for Custodians
|
Applicable
Servicing
Criteria
for Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
||
Exhibit
J-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria for Custodians
|
Applicable
Servicing
Criteria
for Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
||
Exhibit
J-3
|
Servicing
Criteria
|
Applicable
Servicing Criteria for Custodians
|
Applicable
Servicing
Criteria
for Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
Exhibit
J-4
EXHIBIT
K
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties (other than the Custodians) entering into such material
definitive
agreement
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties (other than the Custodians) requesting the termination
of a
material definitive agreement
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
Exhibit
K-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Successor
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator
|
Exhibit
K-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties (other than the Custodians and the Trustee)
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
Exhibit
K-3
EXHIBIT
L
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
Exhibit
L-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Securities
Administrator
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
Exhibit
L-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
Exhibit
L-3
EXHIBIT
M
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
Exhibit
M-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
Exhibit
M-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two
years and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
Exhibit
M-3
SCHEDULE
I
BOND
LEVEL REPORT
I-1
SCHEDULE
II
LOAN
LEVEL REPORT
II-1
SCHEDULE
III
REMITTANCE
REPORT
|
Data
Field
|
Investor_ID
|
Category_ID
|
Servicer
loan number
|
Investor
Loan #
|
PIF
Principal Amount
|
PIF
Net Interest Paid
|
PIF
date
|
Beginning
scheduled note rate
|
Ending
note rate
|
Beginning
schedule service fee
|
Ending
service fee
|
|
Format
|
Number
(no decimals)
|
Number
(no decimals)
|
Number
(no decimals)
|
Number
(no decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
Date
(mm/dd/yy) format
|
Number
(seven Decimals)
|
Number
(seven decimals)
|
Number
(seven decimals)
|
Number
(seven decimals)
|
|
Description
|
ID
number used by your company for the investor
|
ID
number used by your company for the specific deal.
|
Servicer
Loan Number - loan number used at your company.
|
Loan
number used by Investor
|
Paid-in-full
principal balance amount
|
Net
interest paid the loan was paid-in-full
|
Enter
the date the loan was paid-in-full. Leave blank if no PIF
transaction.
|
Beginning
scheduled note rate before the servicer’s monthly activity. Can be blank
for act/act pools.
|
Ending
scheduled loan note rate after servicer’s monthly activity (sch/sch) or
the ending actual loan note rate after servicer’s activity
(act/act).
|
Beginning
scheduled servicer service fee rate before the servicer’s monthly
activity. Can be blank for act/act pools.
|
Ending
scheduled servicer service fee rate after the servicer’s monthly
activity.
|
|
Example:
|
1000
|
2
|
1234
|
56789
|
0.00
|
0.00
|
|
0.0887500
|
0.0887500
|
0.0025000
|
0.0025000
|
|
Ending
due date
|
Beginning
schedule 100% P&I
|
Ending
100% P&I
|
Beginning
security balance
|
Ending
security balance
|
Ending
part UPB
|
Ending
100% UPB
|
Principal
remitted
|
Interest
remitted
|
Principal
|
Curtailment
|
|
Date
(mm/dd/yy) format
|
Number
(two decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
Number
(two decimals)
|
|
Ending
actual loan due date
|
Beginning
scheduled 100% monthly payment amount before the servicer’s monthly
activity. Can be blank for act/act pools.
|
Ending
100% scheduled monthly loan payment amount after servicer’s monthly
activity (sch/sch) or the ending 100% actual monthly loan payment
amount
after servicer’s activity (act/act).
|
(Sch/Sch)
beginning scheduled balance.
(Act/Act)
beginning 100% Actual balance or the beginning participation
Actual
balance for participation loans.
|
(Sch/Sch)
Ending scheduled balance.
(Act/Act)
Ending 100% Actual balance or the ending participation Actual
balance for
participation loans.
|
Ending
actual participation loan principal balance after servicer’s monthly
activity.
|
Ending
100% actual principal balance after servicer’s monthly
activity.
|
(Sch/Sch)
--- Add scheduled principal + Curtailments + payoff/liquidation
amount
(Act/Act) --- Add actual principal + curtailments + payoff/liquidation
amounts.
|
For
Sch/Sch loans, enter the scheduled net
interest
amount remitted. For Act/Act loans, enter the net interest amount
remitted. Net Interest should equal the Gross Interest Amount
minus
Service Fee Amount.
|
(Sch/Sch)
--- scheduled principal (Act/Act) --- actual principal
paid
|
Curtailment
amount
|
|
07/01/02
|
4475.51
|
4475.51
|
557866.38
|
557516.76
|
557866.38
|
557866.38
|
349.62
|
4009.67
|
349.62
|
0.00
|
III-1
