GSAA HOME EQUITY TRUST 2007-5 ASSET-BACKED CERTIFICATES SERIES 2007-5 MASTER SERVICING and TRUST AGREEMENT among GS MORTGAGE SECURITIES CORP., Depositor, DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee, THE BANK OF NEW YORK TRUST COMPANY, NATIONAL...
ASSET-BACKED
CERTIFICATES
SERIES
2007-5
MASTER
SERVICING
and
among
GS
MORTGAGE SECURITIES CORP.,
Depositor,
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee,
THE
BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
U.S.
BANK NATIONAL ASSOCIATION,
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
Custodians
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
Master
Servicer and Securities Administrator
Dated
April 1, 2007
TABLE
OF CONTENTS
Page
|
ARTICLE
I
|
||
|
DEFINITIONS
|
25
|
|
|
Section
1.01
|
Definitions
|
25
|
|
ARTICLE
II
|
||
|
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
|
70
|
|
|
Section
2.01
|
Conveyance
of Mortgage Loans
|
70
|
|
Section
2.02
|
Acceptance
by the Custodians of the Mortgage Loans
|
72
|
|
Section
2.03
|
Execution
and Delivery of Certificates
|
74
|
|
Section
2.04
|
REMIC
Matters
|
74
|
|
Section
2.05
|
Representations
and Warranties of the Depositor
|
75
|
|
Section
2.06
|
Representations
and Warranties of BNY
|
76
|
|
Section
2.07
|
Representations
and Warranties of Deutsche Bank
|
77
|
|
Section
2.08
|
Representations
and Warranties of U.S. Bank
|
77
|
|
Section
2.09
|
Representations
and Warranties of Xxxxx Fargo
|
78
|
|
ARTICLE
III
|
||
|
TRUST
ACCOUNTS
|
79
|
|
|
Section
3.01
|
Excess
Reserve Fund Account; Distribution Account
|
79
|
|
Section
3.02
|
Investment
of Funds in the Distribution Account
|
81
|
|
ARTICLE
IV
|
||
|
DISTRIBUTIONS
|
83
|
|
|
Section
4.01
|
Priorities
of Distribution to the Group I Certificates
|
83
|
|
Section
4.02
|
Priorities
of Distribution to the Group II Certificates
|
90
|
|
Section
4.03
|
Monthly
Statements to Certificateholders
|
97
|
|
Section
4.04
|
Allocation
of Applied Realized Loss Amounts
|
99
|
|
Section
4.05
|
Certain
Matters Relating to the Determination of LIBOR
|
99
|
|
Section
4.06
|
Supplemental
Interest Trust
|
100
|
|
Section
4.07
|
Trust’s
Obligations under the Interest Rate Swap Agreement; Replacement and
Termination of the Interest Rate Swap Agreement.
|
102
|
i
|
ARTICLE
V
|
||
|
THE
CERTIFICATES
|
103
|
|
|
Section
5.01
|
The
Certificates
|
103
|
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates
|
104
|
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
110
|
|
Section
5.04
|
Persons
Deemed Owners
|
110
|
|
Section
5.05
|
Access
to List of Certificateholders’ Names and Addresses
|
110
|
|
Section
5.06
|
Maintenance
of Office or Agency
|
110
|
|
ARTICLE
VI
|
||
|
THE
DEPOSITOR
|
111
|
|
|
Section
6.01
|
Liabilities
of the Depositor
|
111
|
|
Section
6.02
|
Merger
or Consolidation of the Depositor
|
111
|
|
Section
6.03
|
Limitation
on Liability of the Depositor and Others
|
111
|
|
Section
6.04
|
Servicing
Compliance Review
|
112
|
|
Section
6.05
|
Option
to Purchase Defaulted Mortgage Loans
|
112
|
|
ARTICLE
VII
|
||
|
SERVICER
DEFAULT
|
112
|
|
|
Section
7.01
|
Events
of Default
|
112
|
|
Section
7.02
|
Master
Servicer to Act; Appointment of Successor
|
112
|
|
Section
7.03
|
Master
Servicer to Act as Servicer
|
114
|
|
Section
7.04
|
Notification
to Certificateholders
|
114
|
|
ARTICLE
VIII
|
||
|
CONCERNING
THE TRUSTEE AND THE CUSTODIANS
|
114
|
|
|
Section
8.01
|
Duties
of the Trustee and the Custodians
|
114
|
|
Section
8.02
|
Reserved.
|
115
|
|
Section
8.03
|
Certain
Matters Affecting the Trustee and the Custodians
|
115
|
|
Section
8.04
|
Trustee
and Custodians Not Liable for Certificates or Mortgage
Loans
|
117
|
|
Section
8.05
|
Trustee
May Own Certificates
|
118
|
|
Section
8.06
|
Trustee’s
Fees and Expenses
|
118
|
|
Section
8.07
|
Eligibility
Requirements for the Trustee
|
119
|
|
Section
8.08
|
Resignation
and Removal of the Trustee
|
119
|
|
Section
8.09
|
Successor
Trustee
|
120
|
|
Section
8.10
|
Merger
or Consolidation of the Trustee or the Custodians
|
120
|
|
Section
8.11
|
Appointment
of Co-Trustee or Separate Trustee
|
120
|
ii
|
Section
8.12
|
Tax
Matters
|
122
|
|
Section
8.13
|
Reserved.
|
126
|
|
Section
8.14
|
Tax
Classification of the Excess Reserve Fund Account and the Interest
Rate
Swap Agreement
|
126
|
|
Section
8.15
|
Custodial
Responsibilities
|
127
|
|
ARTICLE
IX
|
||
|
ADMINISTRATION
OF THE MORTGAGE LOANS BY THE MASTER SERVICER
|
128
|
|
|
Section
9.01
|
Duties
of the Master Servicer; Enforcement of Servicer’s
Obligations
|
128
|
|
Section
9.02
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance
|
130
|
|
Section
9.03
|
Representations
and Warranties of the Master Servicer
|
130
|
|
Section
9.04
|
Master
Servicer Events of Default
|
132
|
|
Section
9.05
|
Waiver
of Default
|
134
|
|
Section
9.06
|
Successor
to the Master Servicer
|
134
|
|
Section
9.07
|
Compensation
of the Master Servicer
|
135
|
|
Section
9.08
|
Merger
or Consolidation
|
135
|
|
Section
9.09
|
Resignation
of the Master Servicer
|
135
|
|
Section
9.10
|
Assignment
or Delegation of Duties by the Master Servicer
|
136
|
|
Section
9.11
|
Limitation
on Liability of the Master Servicer
|
136
|
|
Section
9.12
|
Indemnification;
Third Party Claims
|
137
|
|
ARTICLE
X
|
||
|
CONCERNING
THE SECURITIES ADMINISTRATOR
|
138
|
|
|
Section
10.01
|
Duties
of the Securities Administrator
|
138
|
|
Section
10.02
|
Certain
Matters Affecting the Securities Administrator
|
139
|
|
Section
10.03
|
Securities
Administrator Not Liable for Certificates or Mortgage
Loans
|
140
|
|
Section
10.04
|
Securities
Administrator May Own Certificates
|
141
|
|
Section
10.05
|
Securities
Administrator’s Fees and Expenses
|
141
|
|
Section
10.06
|
Eligibility
Requirements for the Securities Administrator
|
142
|
|
Section
10.07
|
Resignation
and Removal of the Securities Administrator
|
142
|
|
Section
10.08
|
Successor
Securities Administrator
|
143
|
|
Section
10.09
|
Merger
or Consolidation of the Securities Administrator
|
144
|
|
Section
10.10
|
Assignment
or Delegation of Duties by the Securities Administrator
|
144
|
|
ARTICLE
XI
|
||
|
TERMINATION
|
145
|
|
|
Section
11.01
|
Auction
Call
|
145
|
|
Section
11.02
|
Termination
upon Liquidation or Purchase of the Mortgage Loans
|
145
|
iii
|
Section
11.03
|
Final
Distribution on the Certificates
|
146
|
|
Section
11.04
|
Additional
Termination Requirements
|
147
|
|
ARTICLE
XII
|
||
|
MISCELLANEOUS
PROVISIONS
|
148
|
|
|
Section
12.01
|
Amendment
|
148
|
|
Section
12.02
|
Recordation
of Agreement; Counterparts
|
150
|
|
Section
12.03
|
Governing
Law
|
150
|
|
Section
12.04
|
Intention
of Parties
|
151
|
|
Section
12.05
|
Notices
|
151
|
|
Section
12.06
|
Severability
of Provisions
|
153
|
|
Section
12.07
|
Limitation
on Rights of Certificateholders
|
153
|
|
Section
12.08
|
Certificates
Nonassessable and Fully Paid
|
154
|
|
Section
12.09
|
Waiver
of Jury Trial
|
154
|
|
Section
12.10
|
Rights
of the Swap Provider
|
154
|
|
ARTICLE
XIII
|
||
|
EXCHANGE
ACT REPORTING
|
154
|
|
|
Section
13.01
|
Filing
Obligations.
|
154
|
|
Section
13.02
|
Form
8-K Filings.
|
155
|
|
Section
13.03
|
Form
10-D Filings.
|
156
|
|
Section
13.04
|
Form
10-K Filings.
|
158
|
|
Section
13.05
|
Form
15 Filing.
|
160
|
|
Section
13.06
|
Xxxxxxxx-Xxxxx
Certification.
|
160
|
|
Section
13.07
|
Report
on Assessment of Compliance and Attestation.
|
161
|
|
Section
13.08
|
Use
of Subservicers and Subcontractors.
|
162
|
iv
SCHEDULES
|
Schedule
I
|
Group
I Mortgage Loan Schedule
|
|
Schedule
II
|
Group
II Mortgage Loan Schedule
|
|
EXHIBITS
|
|
|
Exhibit
A
|
Form
of Class A, Class M and Class B Certificates
|
|
Exhibit
B
|
Form
of Class 1P and Class 2P Certificates
|
|
Exhibit
C
|
Form
of Class 1R, Class 2R, Class 1RC, Class 2RC, Class 1RX and Class
2RX
Certificates
|
|
Exhibit
D
|
Form
of Class 1X and Class 2X Certificates
|
|
Exhibit
E
|
Form
of Initial Certification of Custodian
|
|
Exhibit
F
|
Form
of Document Certification and Exception Report of
Custodian
|
|
Exhibit
G
|
Form
of Residual Transfer Affidavit
|
|
Exhibit
H
|
Form
of Transferor Certificate
|
|
Exhibit
I
|
Form
of Rule 144A Letter
|
|
Exhibit
J-1
|
Form
of Back-up Certification (Master Servicer)
|
|
Exhibit
J-2
|
Form
of Back-up Certification (Securities Administrator)
|
|
Exhibit
K
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
|
Exhibit
L-1
|
Form
of Request for Release of Documents (U.S. Bank National
Association)
|
|
Exhibit
L-2
|
Form
of Request for Release of Documents (Deutsche Bank National Trust
Company)
|
|
Exhibit
L-3
|
Form
of Request for Release of Documents (The Bank of New York Trust Company,
National Association)
|
|
Exhibit
L-4
|
Form
of Request for Release of Documents (Xxxxx Fargo Bank, National
Association)
|
|
Exhibit
M
|
Form
8-K Disclosure Information
|
|
Exhibit
N
|
Additional
Form 10-D Disclosure
|
v
|
Exhibit
O
|
Additional
Form 10-K Disclosure
|
|
Exhibit
P
|
Form
of Master Loan Purchase Agreement, between various sellers and Xxxxxxx
Xxxxx Mortgage Company
|
|
Exhibit
Q
|
Flow
Servicing Agreement, dated as of January 1, 2006, between Avelo Mortgage,
L.L.C. and Xxxxxxx Xxxxx Mortgage Company
|
|
Exhibit
R
|
Servicing
Agreement, dated as of July 1, 2004, between Countrywide Home Loans
Servicing LP and Xxxxxxx Xxxxx Mortgage Company
|
|
Exhibit
S
|
Master
Mortgage Loan Purchase Agreement, dated as of July 1, 2004, between
Countrywide Home Loans, Inc. and Xxxxxxx Xxxxx Mortgage
Company
|
|
Exhibit
T
|
Amendment
Reg AB, dated as of January 1, 2006, between Xxxxxxx Xxxxx Mortgage
Company and Countrywide Home Loans, Inc.
|
|
Exhibit
U
|
Amended
and Restated Master Mortgage Loan Purchase Agreement, dated as of
November
1, 2005, between GreenPoint Mortgage Funding, Inc. and Xxxxxxx Xxxxx
Mortgage Company
|
|
Exhibit
V
|
Servicing
Agreement, dated as of November 1, 2005, between GreenPoint Mortgage
Funding, Inc. and Xxxxxxx Xxxxx Mortgage Company
|
|
Exhibit
W
|
Second
Amended and Restated Flow Seller’s Warranties and Servicing Agreement,
dated as of January 1, 2006, between National City Mortgage Co. and
Xxxxxxx Xxxxx Mortgage Company
|
|
Exhibit
X
|
The
Seller’s Purchase, Warranties and Servicing Agreement, dated as of April
1, 2006, between Xxxxxxx Xxxxx Mortgage Company and Wachovia Mortgage
Corporation
|
|
Exhibit
Y
|
Second
Amended and Restated Master Seller’s Warranties and Servicing Agreement,
dated as of November 1, 2005, between Xxxxx Fargo Bank, National
Association and Xxxxxxx Xxxxx Mortgage Company
|
|
Exhibit
Z
|
Form
of Interest Rate Swap Agreement
|
vi
THIS
MASTER SERVICING AND TRUST AGREEMENT, dated as of April 1, 2007 (this
“Agreement”),
is
hereby executed by and among GS MORTGAGE SECURITIES CORP., a Delaware
corporation (the “Depositor”),
DEUTSCHE BANK NATIONAL TRUST COMPANY (“Deutsche
Bank”),
as
trustee (in such capacity, the “Trustee”),
THE
BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION (“BNY”),
as a
custodian, DEUTSCHE BANK NATIONAL TRUST COMPANY (“Deutsche
Bank”),
as a
custodian, U.S. BANK NATIONAL ASSOCIATION (“U.S.
Bank”),
as a
custodian, XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Xxxxx
Fargo”),
as a
custodian (BNY, Deutsche Bank, U.S. Bank and Xxxxx Fargo, each as a
“Custodian”
and
together the “Custodians”)
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as master servicer (in such capacity,
the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”).
WITNESSETH:
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
Group
I
REMICs
The
Securities Administrator on behalf of the Trust shall elect that three
segregated asset pools within the Trust Fund allocated to the Group I
Certificates be treated for federal income tax purposes as comprising three
REMICs (each, a “Trust
REMIC”
or,
in
the alternative, the “Group I Lower-Tier REMIC”, the “Group I Upper-Tier REMIC”
and the “Class 1X REMIC”, respectively). The Class 1X Interest and each
Class of Group I Principal Certificates (other than the right of each Class
of
Group I Principal Certificates to receive Tax Basis Risk Carry Forward Amounts
allocated to the Group I Certificates), represents ownership of a regular
interest in the Group I Upper-Tier REMIC for purposes of the REMIC Provisions.
The Class 1R Certificates represent ownership of the sole class of residual
interest in the Group I Upper-Tier REMIC, the Class 1RC Certificates represent
ownership of the sole class of residual interest in the Group I Lower-Tier
REMIC
and the Class 1RX Certificates represent ownership of the sole class of residual
interest in the Class 1X REMIC for purposes of the REMIC Provisions. The Startup
Day for each REMIC described herein is the Closing Date. The latest possible
maturity date for each Group I Certificate is the latest date referenced in
Section 2.04. The Class 1X REMIC shall hold as assets the Class 1X Interest
as
set out below. The Group I Upper-Tier REMIC shall hold as assets the several
classes of uncertificated Group I Lower-Tier Regular Interests, set out below.
The Group I Lower-Tier REMIC shall hold as assets the assets described in the
definition of “Trust Fund” herein and allocated to the Group I Certificates
(other than the Prepayment Premiums from the Group I Mortgage Loans and the
amounts held in the Excess Reserve Fund Account allocated to the Group I
Certificates). Each Group I Lower-Tier Regular Interest is hereby designated
as
a regular interest in the Group I Lower-Tier REMIC. The Class LT-1AV1,
Class LT-1AF2A, Class LT-1AF2B, Class LT-1AF3A, Class LT-1AF3B, Class LT-1AF4A,
Class LT-1AF4B, Class LT-1AF5A, Class LT-1AF5B, Class LT-1AF6, Class LT-1AF7A,
Class LT-1AF7B, Class LT-1M1, Class LT-1M2, Class LT-1M3, Class LT-1M4, Class
LT-1M5, Class LT-1M6, Class LT-1B1, Class LT-1B2 and Class LT-1B3 Interests
are
hereby designated the Group I LT-Accretion Directed Classes (the “Group
I LT Accretion Directed Classes”).
The
Class 1P Certificates represent beneficial ownership of the Prepayment
Premiums from the Group I Mortgage Loans, each Class of Group I Certificates
(excluding the Class 1P, Class 1X and the Group I Residual Certificates)
represents beneficial ownership of a regular interest in the Group I Upper-Tier
REMIC and the right to receive Tax Basis Risk Carry Forward Amounts allocated
to
the Group I Certificates and the Class 1X Certificates represent beneficial
ownership of a regular interest in the Class 1X REMIC and amounts in the Excess
Reserve Fund Account allocated to the Group I Certificates, which portions
of
the Trust Fund shall be treated as a grantor trust.
Group
II
REMICs
The
Securities Administrator on behalf of the Trust shall elect that four segregated
asset pools within the Trust Fund be treated for federal income tax purposes
as
comprising four REMICs (each, a “Trust
REMIC”
or,
in
the alternative, the “Group II Lower-Tier REMIC”, the “Group II Middle-Tier
REMIC”, the “Group II Upper-Tier REMIC” and the “Class 2X REMIC”, respectively).
The Class UT-Swap IO Interest, the Class 2X Interest and each Class of Group
II
Principal Certificates (other than the right of each Class of Group II Principal
Certificates to receive Tax Basis Risk Carry Forward Amounts allocated to the
Group II Certificates), represents ownership of a regular interest in the Group
II Upper-Tier REMIC for purposes of the REMIC Provisions. The Class 2R
Certificates represent ownership of the sole class of residual interest in
the
Group II Upper-Tier REMIC, the Class 2RC Certificates represent ownership of
the
sole class of residual interest in the Group II Lower-Tier REMIC and the Group
II Middle-Tier REMIC, and the Class 2RX Certificates represent ownership of
the
sole class of residual interest in the Class 2X REMIC for purposes of the REMIC
Provisions. The Startup Day for each REMIC described herein is the Closing
Date.
The latest possible maturity date for each Group II Certificate is the latest
date referenced in Section 2.04. The Class 2X REMIC shall hold as assets the
Class 2X Interest and the Class UT-Swap-IO Interest as set out below. The Group
II Upper-Tier REMIC shall hold as assets the several classes of uncertificated
Group II Middle-Tier Regular Interests, set out below. The Group II Middle-Tier
REMIC shall hold as assets the several classes of uncertificated Group II
Lower-Tier Regular Interests, set out below. The Group II Lower-Tier REMIC
shall
hold as assets the assets described in the definition of “Trust Fund” herein and
allocated to the Group II Certificates (other than the Prepayment Premiums
from
the Group II Mortgage Loans and the amounts in the Excess Reserve Fund Account
allocated to the Group II Certificates). Each Group II Lower-Tier Regular
Interest is hereby designated as a regular interest in the Group II Lower-Tier
REMIC. Each Group II Middle-Tier Regular Interest is hereby designated as a
regular interest in the Group II Middle-Tier REMIC. The Class MT-2A1A,
Class MT-2A1B, Class MT-2A2A, Class MT-2A2B, Class MT-2A3A, Class
MT-2A3B, Class MT-2M1, Class MT-2M2, Class MT-2M3, Class MT-2M4, Class MT-2M5,
Class MT-2M6, Class MT-2B1, Class MT-2B2 and Class MT-2B3 Interests are hereby
designated the Group II MT-Accretion Directed Classes (the “Group
II MT Accretion Directed Classes”).
The
Class 2P Certificates represent beneficial ownership of the Prepayment Premiums
from the Group II Mortgage Loans, each Class of Group II Certificates (excluding
the Class 2P, Class 2X and each class of Group II Residual Certificates)
represents beneficial ownership of a regular interest in the Group II Upper-Tier
REMIC and the right to receive Tax Basis Risk Carry Forward Amounts and the
Class 2X Certificates represent beneficial ownership of a regular interest
in
the Class 2X REMIC and amounts in the Excess Reserve Fund Account allocated
to
the Group II Certificates, which portions of the Trust Fund shall be treated
as
a grantor trust.
2
The
Group
I Lower-Tier REMIC
|
Group
I Lower-Tier
Interest
Designation
|
Group
I
Lower-Tier
Interest
Rate
|
Initial
Group I Lower-Tier
Principal
Amount
|
Corresponding
Group
I Upper-
Tier
REMIC
Class
|
|
Class
LT-1AV1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AV1
|
|
Class
LT-1AF2A
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF2A
|
|
Class
LT-1AF2B
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF2B
|
|
Class
LT-1AF3A
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF3A
|
|
Class
LT-1AF3B
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF3B
|
|
Class
LT-1AF4A
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF4A
|
|
Class
LT-1AF4B
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF4B
|
|
Class
LT-1AF5A
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF5A
|
|
Class
LT-1AF5B
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF5B
|
|
Class
LT-1AF6
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF6
|
|
Class
LT-1AF7A
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF7A
|
|
Class
LT-1AF7B
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1AF7B
|
3
|
Group
I Lower-Tier
Interest
Designation
|
Group
I
Lower-Tier
Interest
Rate
|
Initial
Group I Lower-Tier
Principal
Amount
|
Corresponding
Group
I Upper-
Tier
REMIC
Class
|
|
Class
LT-1M1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1M1
|
|
Class
LT-1M2
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1M2
|
|
Class
LT-1M3
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1M3
|
|
Class
LT-1M4
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1M4
|
|
Class
LT-1M5
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1M5
|
|
Class
LT-1M6
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1M6
|
|
Class
LT-1B1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1B1
|
|
Class
LT-1B2
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1B2
|
|
Class
LT-1B3
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group I Upper-Tier
REMIC Regular Interest
|
1B3
|
|
Group
I Class LT-Accrual
|
(1)
|
½
Pool Stated Principal Balance plus ½ Overcollateralized
Amount
|
|
(1)
|
The
interest rate with respect to any Distribution Date for these interests
is
a per
annum
variable rate equal to the Group I WAC Cap.
|
The
Group
I Lower-Tier REMIC shall hold as assets all of the Group I Lower-Tier REMIC
Regular Interests.
On
each
Distribution Date, 50% of the increase in the Overcollateralized Amount with
respect to the Group I Certificates will be payable as a reduction of the Group
I Lower-Tier Principal Amount of the Group I LT-Accretion Directed Classes
(each
such Class will be reduced by an amount equal to 50% of any increase in the
related Overcollateralized Amount that is attributable to a reduction in the
Class Certificate Balance of its Corresponding Class) and will be accrued and
added to the Group I Lower-Tier Principal Amount of the Group I Class LT-Accrual
Interest. On each Distribution Date, the increase in the Group I Lower-Tier
Principal Amount of the Group I Class LT-Accrual Interest may not exceed
interest accruals for such Distribution Date for the Group I Class LT-Accrual
Interest. In the event that: (i) 50% of the increase in the applicable
Overcollateralized Amount exceeds (ii) interest accruals on the Group I Class
LT-Accrual Interest for such Distribution Date, the excess for such Distribution
Date (accumulated with all such excesses for all prior Distribution Dates)
will
be added to any increase in the applicable Overcollateralized Amount for
purposes of determining the amount of interest accrual on the Group I Class
LT-Accrual Interest payable as principal on the Group I LT-Accretion Directed
Classes on the next Distribution Date pursuant to the first sentence of this
paragraph. All payments of scheduled principal and prepayments of principal
generated by the Group I Mortgage Loans shall be allocated (i) 50% to the Group
I Class LT-Accrual Interest and (ii) 50% to the Group I LT-Accretion Directed
Classes (principal payments shall be allocated among such Group I LT-Accretion
Directed Classes in an amount equal to 50% of the principal amounts allocated
to
their respective Corresponding Classes), until paid in full. Notwithstanding
the
above, principal payments allocated to the Class 1X Interest that result in
the
reduction in the applicable Overcollateralized Amount shall be allocated to
the
Group I Class LT-Accrual Interest (until paid in full). Realized Losses with
respect to the Group I Mortgage Loans shall be applied so that after all
distributions have been made on each Distribution Date (i) the Group I
Lower-Tier Principal Amount of each of the Group I LT-Accretion Directed Classes
is equal to 50% of the Class Certificate Balance of its Corresponding Class,
and
(ii) the Group I Class LT-Accrual Interest is equal to 50% of the aggregate
Stated Principal Balance of the Group I Mortgage Loans plus 50% of the
applicable Overcollateralized Amount.
4
In
addition to issuing the Group I Lower-Tier Regular Interests, the Group I
Lower-Tier REMIC shall issue the Class LT-1R Interest which shall be the sole
class of residual interests in the Group I Lower-Tier REMIC. The Class 1RC
Certificates will represent ownership of the Class LT-1R Interest and will
be
issued as a single certificate in definitive form in a principal amount of
$100
and shall have no interest rate. Amounts received by the Class LT-1R Interest
shall be deemed paid from the Group I Lower-Tier REMIC.
The
Group
I Upper-Tier REMIC
The
Group
I Upper-Tier REMIC shall issue the following classes of Group I Upper-Tier
Regular Interests, and each such interest, other than the Class UT-1R Interest,
is hereby designated as a regular interest in the Group I Upper-Tier
REMIC.
|
Group
I Upper-Tier
Class
Designation
|
Group
I Upper-Tier
Interest
Rate
and
Corresponding
Class
Pass-Through Rate
|
Initial
Group I Upper-
Tier
Principal Amount
and
Corresponding
Class
Certificate
Balance
|
Corresponding
Class
of
Certificates
|
|
Class
1AV1
|
(1)
|
$144,477,000
|
Class
1AV1(23)
|
|||
|
Class
1AF2A
|
(2)
|
$
25,614,000
|
Class
1AF2A (23)
|
|||
|
Class
1AF2B
|
(3)
|
$
2,847,000
|
Class
1AF2B (23)
|
|||
|
Class
1AF3A
|
(4)
|
$
39,256,000
|
Class
1AF3A (23)
|
|||
|
Class
1AF3B
|
(5)
|
$
9,815,000
|
Class
1AF3B (23)
|
|||
|
Class
1AF4A
|
(6)
|
$
47,947,000
|
Class
1AF4A(23)
|
5
|
Group
I Upper-Tier
Class
Designation
|
Group
I Upper-Tier
Interest
Rate
and
Corresponding
Class
Pass-Through Rate
|
Initial
Group I Upper-
Tier
Principal Amount
and
Corresponding
Class
Certificate
Balance
|
Corresponding
Class
of
Certificates
|
|
Class
1AF4B
|
(7)
|
$
5,328,000
|
Class
1AF4B(23)
|
|||
|
Class
1AF5A
|
(8)
|
$
23,661,000
|
Class
1AF5A(23)
|
|||
|
Class
1AF5B
|
(9)
|
$
2,629,000
|
Class
1AF5B(23)
|
|||
|
Class
1AF6
|
(10)
|
$
8,000,000
|
Class
1AF6(23)
|
|||
|
Class
1AF7A
|
(11)
|
$
20,407,000
|
Class
1AF7A(23)
|
|||
|
Class
1AF7B
|
(12)
|
$
5,102,000
|
Class
1AF7B(23)
|
|||
|
Class
1M1
|
(13)
|
$
6,116,000
|
Class
1M1(23)
|
|||
|
Class
1M2
|
(14)
|
$
3,057,000
|
Class
1M2(23)
|
|||
|
Class
1M3
|
(15)
|
$
2,159,000
|
Class
1M3(23)
|
|||
|
Class
1M4
|
(16)
|
$
1,975,000
|
Class
1M4(23)
|
|||
|
Class
1M5
|
(17)
|
$
1,260,000
|
Class
1M5(23)
|
|||
|
Class
1M6
|
(18)
|
$
1,260,000
|
Class
1M6(23)
|
|||
|
Class
1B1
|
(19)
|
$
1,260,000
|
Class
1B1(23)
|
|||
|
Class
1B2
|
(20)
|
$
1,260,000
|
Class
1B2(23)
|
|||
|
Class
1B3
|
(21)
|
$
1,619,000
|
Class
1B3(23)
|
|||
|
Class
1X
|
(22)
|
$
4,676,770
|
Class
1X(23)
|
|||
|
(1)
|
The
Class 1AV1 certificates will have a pass-through rate equal to the
lesser
of (i) one-month LIBOR plus 0.10000% and (ii) the Group I WAC
Cap.
|
|
(2)
|
The
Class 1AF2A certificates will have a pass-through rate equal to the
lesser
of (i) 5.78828% and (ii) the Group I WAC Cap.
|
|
(3)
|
The
Class 1AF2B certificates will have a pass-through rate equal to the
lesser
of (i) 5.83886% and (ii) the Group I WAC Cap.
|
|
(4)
|
The
Class 1AF3A certificates will have a pass-through rate equal to the
lesser
of (i) 5.94745% and (ii) the Group I WAC Cap.
|
|
(5)
|
The
Class 1AF3B certificates will have a pass-through rate equal to the
lesser
of (i) 5.99758% and (ii) the Group I WAC Cap.
|
|
(6)
|
The
Class 1AF4A certificates will have a pass-through rate equal to the
lesser
of (i) 6.03162% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group I
Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(7)
|
The
Class 1AF4B certificates will have a pass-through rate equal to the
lesser
of (i) 6.08128% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group I
Mortgage
Loans) and (ii) the Group I WAC Cap.
|
6
|
(8)
|
The
Class 1AF5A certificates will have a pass-through rate equal to the
lesser
of (i) 6.37160% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group I
Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(9)
|
The
Class 1AF5B certificates will have a pass-through rate equal to the
lesser
of (i) 6.44069% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group I
Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(10)
|
The
Class 1AF6 certificates will have a pass-through rate equal to
the lesser
of (i) 5.90812% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(11)
|
The
Class 1AF7A certificates will have a pass-through rate equal to
the lesser
of (i) 5.90812% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(12)
|
The
Class 1AF7B certificates will have a pass-through rate equal to
the lesser
of (i) 5.90812% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(13)
|
The
Class 1M1 certificates will have a pass-through rate equal to the
lesser
of (i) 6.13700% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(14)
|
The
Class 1M2 certificates will have a pass-through rate equal to the
lesser
of (i) 6.23622% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(15)
|
The
Class 1M3 certificates will have a pass-through rate equal to the
lesser
of (i) 6.38506% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(16)
|
The
Class 1M4 certificates will have a pass-through rate equal to the
lesser
of (i) 6.48000% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(17)
|
The
Class 1M5 certificates will have a pass-through rate equal to the
lesser
of (i) 6.48000% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
7
|
(18)
|
The
Class 1M6 certificates will have a pass-through rate equal to the
lesser
of (i) 6.48000% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(19)
|
The
Class 1B1 certificates will have a pass-through rate equal to the
lesser
of (i) 6.48000% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(20)
|
The
Class 1B2 certificates will have a pass-through rate equal to the
lesser
of (i) 6.48000% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(21)
|
The
Class 1B3 certificates will have a pass-through rate equal to the
lesser
of (i) 6.48000% (plus 0.50% after the first distribution date on
which the
optional clean-up call is exercisable with respect to the Group
I Mortgage
Loans) and (ii) the Group I WAC Cap.
|
|
(22)
|
The
Class 1X Interest will have a principal balance to the extent of
any
Overcollateralized Amount with respect to the Group I Certificates.
The
Class 1X Interest will not accrue interest on such balance but
will accrue
interest on a notional principal balance. As of any Distribution
Date, the
Class 1X Interest shall have a notional principal balance equal
to the
aggregate of the principal balances of the Group I Lower-Tier Regular
Interests as of the first day of the related Interest Accrual Period.
With
respect to any Interest Accrual Period, the Class 1X Interest shall
bear
interest at a rate equal to the excess, if any, of the Group I
WAC Cap
over the product of (i) two (2) and (ii) the weighted average Group
I
Lower-Tier Interest Rate of the Group I Lower-Tier Regular Interests,
where the Group I Lower-Tier Interest Rates on the Group I Class
LT-Accrual Interest is subject to a cap equal to zero and each
Group I
LT-Accretion Directed Class is subject to a cap equal to the Pass-Through
Rate on its Corresponding Class. With respect to any Distribution
Date,
interest that so accrues on the notional principal balance of the
Class 1X
Interest shall be deferred in an amount equal to any increase in
the
Overcollateralized Amount with respect to the Group I Certificates
on such
Distribution Date. Such deferred interest shall not itself bear
interest.
The Class 1X Certificates will represent beneficial ownership of
a regular
interest issued by the Class 1X REMIC and amounts in the Excess
Reserve
Fund Account, subject to the obligation to make payments from the
Excess
Reserve Fund Account in respect of any related Basis Risk Carry
Forward
Amounts. For federal income tax purposes, the Securities Administrator
will treat the Class 1X Certificateholders’ obligation to make payments
from the Excess Reserve Fund Account as payments made pursuant
to an
interest rate cap contract written by the Class 1X Certificateholders
in
favor of each Class of Group I Principal Certificates. Such rights
of the
Class 1X Certificateholders and Group I Principal Certificateholders
shall
be treated as held in a portion of the Trust Fund that is treated
as a
grantor trust under subpart E, Part I of subchapter J of the
Code.
|
8
|
(23)
|
Each
of these Group I Certificates will represent not only the ownership
of the
Corresponding Class of Group I Upper-Tier Regular Interest but
also the
right to receive payments from the Excess Reserve Fund Account
in respect
of any related Basis Risk Carry Forward Amounts. For federal income
tax
purposes, the Securities Administrator will treat a Certificateholder’s
right to receive payments from the Excess Reserve Fund Account
as payments
made pursuant to an interest rate cap contract written by the Class
1X
Certificateholders.
|
In
addition to issuing the Group I Upper-Tier Regular Interests, the Group I
Upper-Tier REMIC shall issue the Class 1R Certificates, which shall be the
sole
class of residual interests in the Group I Upper-Tier REMIC. The Class 1R
Certificates will be issued as a single certificate in definitive form in a
principal amount of $100 and shall have no interest rate. Amounts received
by
the Class 1R Certificates shall be deemed paid from the Group I Upper-Tier
REMIC.
Class
1X REMIC
The
Class
1X REMIC shall issue the following classes of interests. The Class 1X
Certificates shall represent a regular interest in the Class 1X REMIC and the
Class 1RX Certificates shall represent the sole class of residual interest
in
the Class 1X REMIC.
|
Class
1X REMIC Designation
|
Interest
Rate
|
Class
1X REMIC
Principal
Amount
|
|
Class
1X Certificates
|
(1)
|
(1)
|
|
Class
1RX Certificates
|
(2)
|
(2)
|
_________________
|
(1)
|
The
Class 1X Certificates are entitled to 100% of the interest and principal
on the Class 1X Interest on each Distribution
Date.
|
|
(2)
|
The
Class 1RX Certificates do not have an interest rate or principal
amount.
|
The
foregoing REMIC structure is intended to cause all of the cash from the Group
I
Mortgage Loans to flow through to the Group I Upper-Tier REMIC and the Class
1X
REMIC as cash flow on a REMIC regular interest, without creating any actual
or
potential shortfall (other than for credit losses) to any Group I Trust REMIC
regular interest. It is not intended that the Class 1R, Class 1RC or Class
1RX
Certificates be entitled to any cash flow pursuant to this Agreement except
as
provided in Section 4.01(a)(ii)(A)(1) hereunder.
For
any
purpose for which the Pass-Through Rates are calculated, the interest rate
on
the Group I Mortgage Loans shall be appropriately adjusted to account for the
difference between the monthly day count convention of the Group I Mortgage
Loans and the monthly day count convention of the regular interests issued
by
each of the REMICs of the related Group. For purposes of calculating the
Pass-Through Rates for each of the interests issued by the Group I Lower-Tier
REMIC such rates shall be adjusted to equal a monthly day count convention
based
on a 30 day month for each Due Period and a 360-day year so that the Group
I
Mortgage Loans and all regular interests will be using the same monthly day
count convention.
9
The
minimum denomination for each Class of the Group I Offered Certificates will
be
$50,000 initial Certificate Balance, with integral multiples of $1 in excess
thereof except that one Certificate in each Class may be issued in a different
amount. The minimum denomination for (a) the Class 1R and Class 1RC Certificates
will each be $100 and each will be a 100% Percentage Interest in such Class,
(b)
the Class 1RX Certificates will be a 100% Percentage Interest in such Class,
(c)
the Class 1P Certificates will be a $10 initial notional balance, with integral
multiples of $1 in excess thereof and (d) the Class 1X Certificates will be
equal to 10% of their initial notional balance, with integral multiples of
$1 in
excess thereof.
The
Group
II Lower-Tier REMIC
The
Group
II Lower-Tier REMIC Interests will have the Initial Principal Balances and
Pass-Through Rates as set forth in the following table:
|
Group
II Lower-Tier
REMIC
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
|
Class
LT-1A
|
(1)
|
(2)
|
|
Class
LT-1B
|
(1)
|
(2)
|
|
Class
LT-2A
|
(1)
|
(2)
|
|
Class
LT-2B
|
(1)
|
(2)
|
|
Class
LT-3A
|
(1)
|
(2)
|
|
Class
LT-3B
|
(1)
|
(2)
|
|
Class
LT-4A
|
(1)
|
(2)
|
|
Class
LT-4B
|
(1)
|
(2)
|
|
Class
LT-5A
|
(1)
|
(2)
|
|
Class
LT-5B
|
(1)
|
(2)
|
|
Class
LT-6A
|
(1)
|
(2)
|
|
Class
LT-6B
|
(1)
|
(2)
|
|
Class
LT-7A
|
(1)
|
(2)
|
|
Class
LT-7B
|
(1)
|
(2)
|
|
Class
LT-8A
|
(1)
|
(2)
|
10
|
Group
II Lower-Tier
REMIC
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
|
Class
LT-8B
|
(1)
|
(2)
|
|
Class
LT-9A
|
(1)
|
(2)
|
|
Class
LT-9B
|
(1)
|
(2)
|
|
Class
LT-10A
|
(1)
|
(2)
|
|
Class
LT-10B
|
(1)
|
(2)
|
|
Class
LT-11A
|
(1)
|
(2)
|
|
Class
LT-11B
|
(1)
|
(2)
|
|
Class
LT-12A
|
(1)
|
(2)
|
|
Class
LT-12B
|
(1)
|
(2)
|
|
Class
LT-13A
|
(1)
|
(2)
|
|
Class
LT-13B
|
(1)
|
(2)
|
|
Class
LT-14A
|
(1)
|
(2)
|
|
Class
LT-14B
|
(1)
|
(2)
|
|
Class
LT-15A
|
(1)
|
(2)
|
|
Class
LT-15B
|
(1)
|
(2)
|
|
Class
LT-16A
|
(1)
|
(2)
|
|
Class
LT-16B
|
(1)
|
(2)
|
|
Class
LT-17A
|
(1)
|
(2)
|
|
Class
LT-17B
|
(1)
|
(2)
|
|
Class
LT-18A
|
(1)
|
(2)
|
|
Class
LT-18B
|
(1)
|
(2)
|
|
Class
LT-19A
|
(1)
|
(2)
|
|
Class
LT-19B
|
(1)
|
(2)
|
11
|
Group
II Lower-Tier
REMIC
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
|
Class
LT-20A
|
(1)
|
(2)
|
|
Class
LT-20B
|
(1)
|
(2)
|
|
Class
LT-21A
|
(1)
|
(2)
|
|
Class
LT-21B
|
(1)
|
(2)
|
|
Class
LT-22A
|
(1)
|
(2)
|
|
Class
LT-22B
|
(1)
|
(2)
|
|
Class
LT-23A
|
(1)
|
(2)
|
|
Class
LT-23B
|
(1)
|
(2)
|
|
Class
LT-24A
|
(1)
|
(2)
|
|
Class
LT-24B
|
(1)
|
(2)
|
|
Class
LT-25A
|
(1)
|
(2)
|
|
Class
LT-25B
|
(1)
|
(2)
|
|
Class
LT-26A
|
(1)
|
(2)
|
|
Class
LT-26B
|
(1)
|
(2)
|
|
Class
LT-27A
|
(1)
|
(2)
|
|
Class
LT-27B
|
(1)
|
(2)
|
|
Class
LT-28A
|
(1)
|
(2)
|
|
Class
LT-28B
|
(1)
|
(2)
|
|
Class
LT-29A
|
(1)
|
(2)
|
|
Class
LT-29B
|
(1)
|
(2)
|
|
Class
LT-30A
|
(1)
|
(2)
|
|
Class
LT-30B
|
(1)
|
(2)
|
|
Class
LT-31A
|
(1)
|
(2)
|
12
|
Group
II Lower-Tier
REMIC
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
|
Class
LT-31B
|
(1)
|
(2)
|
|
Class
LT-32A
|
(1)
|
(2)
|
|
Class
LT-32B
|
(1)
|
(2)
|
|
Class
LT-33A
|
(1)
|
(2)
|
|
Class
LT-33B
|
(1)
|
(2)
|
|
Class
LT-34A
|
(1)
|
(2)
|
|
Class
LT-34B
|
(1)
|
(2)
|
|
Class
LT-35A
|
(1)
|
(2)
|
|
Class
LT-35B
|
(1)
|
(2)
|
|
Class
LT-36A
|
(1)
|
(2)
|
|
Class
LT-36B
|
(1)
|
(2)
|
|
Class
LT-37A
|
(1)
|
(2)
|
|
Class
LT-37B
|
(1)
|
(2)
|
|
Class
LT-38A
|
(1)
|
(2)
|
|
Class
LT-38B
|
(1)
|
(2)
|
|
Class
LT-39A
|
(1)
|
(2)
|
|
Class
LT-39B
|
(1)
|
(2)
|
|
Class
LT-40A
|
(1)
|
(2)
|
|
Class
LT-40B
|
(1)
|
(2)
|
|
Class
LT-41A
|
(1)
|
(2)
|
|
Class
LT-41B
|
(1)
|
(2)
|
|
Class
LT-42A
|
(1)
|
(2)
|
|
Class
LT-42B
|
(1)
|
(2)
|
13
|
Group
II Lower-Tier
REMIC
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
|
Class
LT-43A
|
(1)
|
(2)
|
|
Class
LT-43B
|
(1)
|
(2)
|
|
Class
LT-44A
|
(1)
|
(2)
|
|
Class
LT-44B
|
(1)
|
(2)
|
|
Class
LT-45A
|
(1)
|
(2)
|
|
Class
LT-45B
|
(1)
|
(2)
|
|
Class
LT-46A
|
(1)
|
(2)
|
|
Class
LT-46B
|
(1)
|
(2)
|
|
Class
LT-47A
|
(1)
|
(2)
|
|
Class
LT-47B
|
(1)
|
(2)
|
|
Class
LT-48A
|
(1)
|
(2)
|
|
Class
LT-48B
|
(1)
|
(2)
|
|
Class
LT-49A
|
(1)
|
(2)
|
|
Class
LT-49B
|
(1)
|
(2)
|
|
Class
LT-50A
|
(1)
|
(2)
|
|
Class
LT-50B
|
(1)
|
(2)
|
|
Class
LT-51A
|
(1)
|
(2)
|
|
Class
LT-51B
|
(1)
|
(2)
|
|
Class
LT-52A
|
(1)
|
(2)
|
|
Class
LT-52B
|
(1)
|
(2)
|
|
Class
LT-53A
|
(1)
|
(2)
|
|
Class
LT-53B
|
(1)
|
(2)
|
|
Class
LT-54A
|
(1)
|
(2)
|
14
|
Group
II Lower-Tier
REMIC
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
|
Class
LT-54B
|
(1)
|
(2)
|
|
Class
LT-55A
|
(1)
|
(2)
|
|
Class
LT-55B
|
(1)
|
(2)
|
|
Class
LT-56A
|
(1)
|
(2)
|
|
Class
LT-56B
|
(1)
|
(2)
|
|
Class
LT-57A
|
(1)
|
(2)
|
|
Class
LT-57B
|
(1)
|
(2)
|
|
Class
LT-58A
|
(1)
|
(2)
|
|
Class
LT-58B
|
(1)
|
(2)
|
|
Class
LT-59A
|
(1)
|
(2)
|
|
Class
LT-59B
|
(1)
|
(2)
|
|
Class
LT-60A
|
(1)
|
(2)
|
|
Class
LT-60B
|
(1)
|
(2)
|
|
Class
LT-Support-X
|
(1),
(3)
|
(2)
|
|
Class
LT-Support-Y
|
(1),
(3)
|
(2)
|
|
(1)
|
Each
such Class, other than the Class LT-Support Interests, will have
an
initial principal balance equal to the product of: (i) 50% and (ii)
the
excess of (a) the notional balance of the Interest Rate Swap Agreement
in
respect of the Group II Certificates for the Distribution Date whose
ordinal number equals the cardinal number of the designated Class,
over
(b) the notional balance of such Interest Rate Swap Agreement for
the
subsequent Distribution Date. Scheduled principal, prepayments and
Realized Losses with respect to the Group II Mortgage Loans will
be
allocated first, to the Class LT-Support Interests (and among such
Interests as described in Note 3 below), and second among the other
Classes designated “LT-”, first, sequentially to the Class having the
lowest cardinal number following such designation, in each case until
reduced to zero, and second, among each class having the same cardinal
number pro rata between each such class.
|
15
|
(2)
|
On
each Distribution Date, the interest rate will be the Weighted Average
of
the Adjusted Net Mortgage Rates then in effect on the beginning of
the
related Due Period on the Group II Mortgage Loans (“Group II Pool
WAC”).
|
|
(3)
|
On
each Distribution Date, following the allocation of Principal Amounts
and
Realized Losses with respect to the Group II Mortgage Loans, the
principal
balance in respect of the Class LT-Support Interest-Y will equal
the
lesser of: (i) the sum of the principal balance of the Class 2B3
Certificates and the Overcollateralized Amount and (ii) the excess,
if
any, of the principal balance of the Group II Mortgage Loans over
the
principal balance in respect of the remaining Group II Lower-Tier
REMIC
Interests other than the Class LT-Support-X Interests for the immediately
preceding Distribution Date, and the Class LT-Support-X Interests
will
equal the excess, if any, of the principal balance of the Mortgage
Loans
over the principal balance in respect of the remaining Group II Lower
Tier
REMIC Interests.
|
In
addition to issuing the Group II Lower-Tier Regular Interests, the Group II
Lower-Tier REMIC shall issue the Class 2R1 Interest which shall be the sole
class of residual interests in the Group II Lower-Tier REMIC. The Class 2RC
Certificates will represent ownership of the Class 2R1 Interest and will be
issued as a single certificate in definitive form in a principal amount of
$100
and shall have no interest rate. Amounts received by the Class 2R1 Interest
shall be deemed paid from the Group II Lower-Tier REMIC.
The
Group
II Middle-Tier REMIC
|
Group
II Middle-Tier
Interest
Designation
|
Group
II
Middle-Tier
Interest
Rate
|
Initial
Group II Middle-Tier
Principal
Amount
|
Corresponding
Group
II Upper-
Tier
REMIC
Class
|
|
Class
MT-2A1A
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2A1A
|
|
Class
MT-2A1B
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2A1B
|
|
Class
MT-2A2A
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2A2A
|
|
Class
MT-2A2B
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2A2B
|
|
Class
MT-2A3A
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2A3A
|
|
Class
MT-2A3B
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2A3B
|
|
Class
MT-2M1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2M1
|
16
|
Group
II Middle-Tier
Interest
Designation
|
Group
II
Middle-Tier
Interest
Rate
|
Initial
Group II Middle-Tier
Principal
Amount
|
Corresponding
Group
II Upper-
Tier
REMIC
Class
|
|
Class
MT-2M2
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2M2
|
|
Class
MT-2M3
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2M3
|
|
Class
MT-2M4
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2M4
|
|
Class
MT-2M5
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2M5
|
|
Class
MT-2M6
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2M6
|
|
Class
MT-2B1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2B1
|
|
Class
MT-2B2
|
(1)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2B2
|
|
Class
MT-2B3
|
(2)
|
½
initial Class Certificate Balance of Corresponding Group II Upper-Tier
REMIC Regular Interest
|
2B3
|
|
Group
II Class MT-Accrual
|
(1)
|
½
Pool Stated Principal Balance plus ½ Overcollateralized
Amount
|
N/A
|
|
Class
MT-Swap IO
|
(3)
|
(3)
|
N/A
|
|
(1)
|
The
interest rate with respect to any Distribution Date for these interests
will equal the weighted average of the pass through rates of the
Group II
Lower-Tier REMIC Interests (excluding the Group II Class LT-Support-Y
Interest) treating: (i) each “2A” class (e.g. LT-2A1A,
LT-2A1B, LT-2A1A…) as subject to a cap and a floor equal to the product
of: (i) 2 and (ii) the excess, if any, of Pool WAC over the fixed
rate
payable to the Swap Provider by the Trust for such Distribution
Date, and
(ii) each “2B” class (e.g. LT-2B1, LT-2B2, LT-2B3…) as subject to a cap
and a floor rate equal to the product of: (i) 2 and (ii) the least
of (a)
One Month LIBOR, (b) the Pool WAC, and (c) the fixed rate payable
to the
Swap Provider by the Trust for such Distribution Date, in each
case whose
cardinal number preceding such designation (e.g. -1, -2, -3,…) is not
exceeded by the ordinal number of the Distribution Date following
the
Closing Date (e.g. first, second, third,…) for such Distribution Date (the
“Tax Group II WAC Cap”).
|
17
|
(2)
|
The
interest rate with respect to any Distribution Date for these interests
will equal the Pool WAC.
|
|
(3)
|
For
each Distribution Date, the interest rate will equal the excess
of the
fixed rate payable to the Swap Provider by the Trust for such Distribution
Date subject to a cap equal to the Pool WAC over one month LIBOR
on a
notional balance equal to the sum of the principal balances of
each Group
II Lower-Tier REMIC Regular Interests whose cardinal number following
such
designation (e.g. -1, -2, -3,…) is not exceeded by the ordinal number of
the Distribution Date following the Closing Date (e.g. first, second,
third,…) for such Distribution Date.
|
The
Group
II Middle-Tier REMIC shall hold as assets all of the Group II Middle-Tier REMIC
Regular Interests.
On
each
Distribution Date, 50% of the increase in the Overcollateralized Amount with
respect to the Group II Certificates will be payable as a reduction of the
Group
II Middle-Tier Principal Amount of the Group II MT-Accretion Directed Classes
(each such Class will be reduced by an amount equal to 50% of any increase
in
the Overcollateralized Amount with respect to the Group II Certificates that
is
attributable to a reduction in the Class Certificate Balance of its
Corresponding Class) and will be accrued and added to the Group II Middle-Tier
Principal Amount of the Group II Class MT-Accrual Interest. On each Distribution
Date, the increase in the Group II Middle-Tier Principal Amount of the Group
II
Class MT-Accrual Interest may not exceed interest accruals for such Distribution
Date for the Group II Class MT-Accrual Interest. In the event that: (i) 50%
of
the increase in the Overcollateralized Amount with
respect to the Group II Certificates exceeds
(ii) interest accruals on the Group II Class MT-Accrual Interest for such
Distribution Date, the excess for such Distribution Date (accumulated with
all
such excesses for all prior Distribution Dates) will be added to any increase
in
the Overcollateralized Amount with respect to the Group II Certificates for
purposes of determining the amount of interest accrual on the Group II Class
MT-Accrual Interest payable as principal on the Group II MT-Accretion Directed
Classes on the next Distribution Date pursuant to the first sentence of this
paragraph. All payments of scheduled principal and prepayments of principal
generated by the Group II Mortgage Loans shall be allocated (i) 50% to the
Group
II Class MT-Accrual Interest and (ii) 50% to the Group II MT-Accretion Directed
Classes (principal payments shall be allocated among such Group II MT-Accretion
Directed Classes in an amount equal to 50% of the principal amounts allocated
to
their respective Corresponding Classes), until paid in full. Notwithstanding
the
above, principal payments allocated to the Class 2X Interest that result in
the
reduction in the Overcollateralized Amount with respect to the Group II
Certificates shall be allocated to the Group II Class MT-Accrual Interest (until
paid in full). Realized Losses shall be applied so that after all distributions
have been made on each Distribution Date (i) the Group II Middle-Tier Principal
Amount of each of the Group II MT-Accretion Directed Classes is equal to 50%
of
the Class Certificate Balance of its Corresponding Class, and (ii) the Group
II
Class MT-Accrual Interest are equal to 50% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans plus 50% of the Overcollateralized Amount
with respect to the Group II Certificates.
In
addition to issuing the Group II Middle-Tier Regular Interests, the Group II
Middle-Tier REMIC shall issue the Class 2R2 Interest which shall be the sole
class of residual interests in the Group II Middle-Tier REMIC. The Class 2RC
Certificates will represent ownership of the Class 2R2 Interest and will be
issued as a single certificate in definitive form in a principal amount of
$100
and shall have no interest rate. Amounts received by the Class 2R2 Interest
shall be deemed paid from the Group II Middle-Tier REMIC.
18
The
Group
II Upper-Tier REMIC
The
Group
II Upper-Tier REMIC shall issue the following classes of Group II Upper-Tier
Regular Interests, and each such interest, other than the Class UT-2R Interest,
is hereby designated as a regular interest in the Group II Upper-Tier
REMIC.
|
Group
II Upper-Tier
Class
Designation
|
Group
II Upper-Tier
Interest
Rate
and
Corresponding
Class
Pass-Through
Rate
|
Initial
Group II Upper-
Tier
Principal Amount
and
Corresponding
Class
Certificate
Balance
|
Corresponding
Class
of
Certificates
|
|||
|
Class
2A1A
|
(1)
|
$
561,510,000
|
Class
2A1A(17)
|
|||
|
Class
2A1B
|
(2)
|
$
62,390,000
|
Class
2A1B(17)
|
|||
|
Class
2A2A
|
(3)
|
$
147,153,000
|
Class
2A2A(17)
|
|||
|
Class
2A3B
|
(4)
|
$
16,351,000
|
Class
2A2B(17)
|
|||
|
Class
2A3A
|
(5)
|
$
232,452,000
|
Class
2A3A(17)
|
|||
|
Class
2A3B
|
(6)
|
$
25,828,000
|
Class
2A3B(17)
|
|||
|
Class
2M1
|
(7)
|
$
16,418,000
|
Class
2M1(17)
|
|||
|
Class
2M2
|
(8)
|
$
14,720,000
|
Class
2M2(17)
|
|||
|
Class
2M3
|
(9)
|
$
9,059,000
|
Class
2M3(17)
|
|||
|
Class
2M4
|
(10)
|
$
7,926,000
|
Class
2M4(17)
|
|||
|
Class
2M5
|
(11)
|
$
6,227,000
|
Class
2M5(17)
|
|||
|
Class
2M6
|
(12)
|
$
6,226,000
|
Class
2M6(17)
|
|||
|
Class
2B1
|
(13)
|
$
3,964,000
|
Class
2B1(17)
|
|||
|
Class
2B2
|
(14)
|
$
3,964,000
|
Class
2B2(17)
|
|||
|
Class
2B3
|
(15)
|
$
5,662,000
|
Class
2B3(17)
|
|||
|
Class
2X
|
(16)
|
(16)
|
Class
2X(16)
|
|||
|
Class
UT-Swap IO
|
(18)
|
(18)
|
Class
2X(18)
|
|
(1)
|
The
Class 2A1A Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the least of (i) one-month LIBOR plus 0.120% (0.240%
after
the first distribution date on which the optional clean-up call is
exercisable with respect to the Group II Mortgage Loans) and (ii)
the Tax
Group II WAC Cap.
|
|
(2)
|
The
Class 2A1B Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the least of (i) one-month LIBOR plus 0.140% (0.280%
after
the first distribution date on which the optional clean-up call is
exercisable with respect to the Group II Mortgage Loans) and (ii)
the Tax
Group II WAC Cap.
|
|
(3)
|
The
Class 2A2A Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the least of (i) one-month LIBOR plus 0.230% (0.460%
after
the first distribution date on which the optional clean-up call is
exercisable with respect to the Group II Mortgage Loans) and (ii)
the Tax
Group II WAC Cap.
|
19
|
(4)
|
The
Class 2A2B Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the least of (i) one-month LIBOR plus 0.260% (0.520%
after
the first distribution date on which the optional clean-up call is
exercisable with respect to the Group II Mortgage Loans) and (ii)
the Tax
Group II WAC Cap.
|
|
(5)
|
The
Class 2A3A Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the least of (i) one-month LIBOR plus 0.320% (0.640%
after
the first distribution date on which the optional clean-up call is
exercisable with respect to the Group II Mortgage Loans) and (ii)
the Tax
Group II WAC Cap.
|
|
(6)
|
The
Class 2A3B Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the least of (i) one-month LIBOR plus 0.340% (0.680%
after
the first distribution date on which the optional clean-up call is
exercisable with respect to the Group II Mortgage Loans) and (ii)
the Tax
Group II WAC Cap.
|
|
(7)
|
The
Class 2M1 Interest
will bear interest during each Interest Accrual Period at a per
annum
rate equal to lesser of (i) one-month LIBOR plus 0.390% (0.585% after
the
first distribution date on which the optional clean-up call is exercisable
with respect to the Group II Mortgage Loans) and (ii) the Tax Group
II WAC
Cap.
|
|
(8)
|
The
Class 2M2 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to lesser of (i) one-month LIBOR plus 0.480% (0.720% after
the
first distribution date on which the optional clean-up call is exercisable
with respect to the Group II Mortgage Loans) and (ii) the Tax Group
II WAC
Cap.
|
|
(9)
|
The
Class 2M3 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to lesser of (i) one-month LIBOR plus 0.600% (0.900% after
the
first distribution date on which the optional clean-up call is exercisable
with respect to the Group II Mortgage Loans) and (ii) the Tax Group
II WAC
Cap.
|
|
(10)
|
The
Class 2M4 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to lesser of (i) one-month LIBOR plus 1.000% (1.500% after
the
first distribution date on which the optional clean-up call is exercisable
with respect to the Group II Mortgage Loans) and (ii) the Tax Group
II WAC
Cap.
|
|
(11)
|
The
Class 2M5 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to lesser of (i) one-month LIBOR plus 1.250% (1.875% after
the
first distribution date on which the optional clean-up call is exercisable
with respect to the Group II Mortgage Loans) and (ii) the Tax Group
II WAC
Cap.
|
|
(12)
|
The
Class 2M6 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to lesser of (i) one-month LIBOR plus 1.750% (2.625% after
the
first distribution date on which the optional clean-up call is exercisable
with respect to the Group II Mortgage Loans) and (ii) the Tax Group
II WAC
Cap.
|
|
(13)
|
The
Class 2B1 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to lesser of (i) one-month LIBOR plus 2.000% (3.000% after
the
first distribution date on which the optional clean-up call is exercisable
with respect to the Group II Mortgage Loans) and (ii) the Tax Group
II WAC
Cap.
|
20
|
(14)
|
The
Class 2B2 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to lesser of (i) one-month LIBOR plus 2.000% (3.000% after
the
first distribution date on which the optional clean-up call is exercisable
with respect to the Group II Mortgage Loans) and (ii) the Tax Group
II WAC
Cap.
|
|
(15)
|
The
Class 2B3 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to the lesser of (i) 2.000% (plus 3.000%
after
the first distribution date on which the optional clean-up call is
exercisable with respect to the Group II Mortgage Loans) and (ii)
the
Group II WAC Cap.
|
|
(16)
|
The
Class 2X Interest will have a principal balance to the extent of
any
Overcollateralized Amount with respect to the Group II Certificates.
The
Class 2X Interest will not accrue interest on such balance but will
accrue
interest on a notional principal balance. As of any Distribution
Date, the
Class 2X Interest shall have a notional principal balance equal to
the
aggregate of the principal balances of the Group
II Middle-Tier
Regular Interests as of the first day of the related Interest Accrual
Period. With respect to any Interest Accrual Period, the Class 2X
Interest
shall bear interest at a rate equal to the excess, if any, of the
Tax
Group II WAC Cap over the product of (i) 2 and (ii) the weighted
average
Group II Middle-Tier Interest Rate of the Middle-Tier Regular Interests,
where the Group II Middle-Tier Interest Rates on the Group II Class
MT-Accrual Interest is subject to a cap equal to zero and each Group
II
MT-Accretion Directed Class is subject to a cap equal to the Pass-Through
Rate on its Corresponding Class. With respect to any Distribution
Date,
interest that so accrues on the notional principal balance of the
Class 2X
Interest shall be deferred in an amount equal to any increase in
the
Overcollateralized Amount on such Distribution Date. Such deferred
interest shall not itself bear interest. The Class 2X Certificates
will
represent beneficial ownership of a regular interest issued by the
Class
2X REMIC, the Interest Rate Swap Agreement, the Supplemental Interest
Trust and amounts in the Excess Reserve Fund Account allocated to
the
Group II Certificates and the Supplemental Interest Trust, subject
to the
obligation to make payments from the Excess Reserve Fund Account
in
respect of Tax Basis Risk Carry Forward Amounts. For federal income
tax
purposes, the Securities Administrator will treat the Class 2X
Certificateholders’ obligation to make payments from the Excess Reserve
Fund Account and the Supplemental Interest Trust as payments made
pursuant
to an interest rate cap contract written by the Class 2X
Certificateholders in favor of each Class of Group II LIBOR Certificates.
Such rights of the Class 2X Certificateholders and Group II LIBOR
Certificateholders shall be treated as held in a portion of the Trust
Fund
that is treated as a grantor trust under subpart E, Part I of subchapter
J
of the Code.
|
|
(17)
|
Each
of the Group II Certificates will bear interest at a pass through
rate
equal to the pass through rate in respect of its Corresponding Class
substituting the term “Group II WAC Cap” for each reference to “Tax Group
II WAC Cap”. Each of these Group II Certificates will represent not only
the ownership of the Corresponding Class of Group II Upper-Tier Regular
Interest but also the right to receive payments from the Excess Reserve
Fund Account and the Supplemental Interest Trust in respect of any
Basis
Risk Carry Forward Amounts excluding for this purpose , any amount
attributable to the excess of the REMIC Cap over the Pass-Through
Rate of
the related Class of Group II Certificates (“Tax
Basis Risk Carry Forward Amounts”).
For federal income tax purposes, the Securities Administrator will
treat a
Group II Certificateholder’s right to receive payments from the Excess
Reserve Fund Account and the Supplemental Interest Trust as payments
made
pursuant to an interest rate cap contract written by the Class 2X
Certificateholders.
|
21
|
(18)
|
For
each Distribution Date, 100% of the cash flow in respect of the Class
MT-Swap IO Interest. The Class 2X Certificates will be entitled to
100% of
the cash flow in respect of the Class UT-Swap IO Interest.
|
Each
of
these Group II Certificates will also be subject to the obligation to pay Class
IO Shortfalls as described in Section 8.14. For federal income tax purposes,
any
distribution of Tax Basis Risk Carry Forward Amounts shall be treated as having
been paid from the Excess Reserve Fund Account or the Supplemental Interest
Trust, as applicable, and any excess of the pass through rates of the
Certificates subject to the Tax Group II WAC Cap over the amount distributable
on such Class of Group II Upper Tier REMIC Interests on such Distribution Date
shall be treated as having been paid to the Supplemental Interest Trust, all
pursuant to, and as further provided in, Section 8.14. The Securities
Administrator will treat a Group II Certificateholder’s right to receive
payments from the Excess Reserve Fund Account and the Supplemental Interest
Trust as payments made pursuant to an interest rate cap contract written by
the
Class 2X Certificateholders.
In
addition to issuing the Group II Upper-Tier Regular Interests, the Group II
Upper-Tier REMIC shall issue the Class 2R Certificates, which shall be the
sole
class of residual interests in the Group II Upper-Tier REMIC. The Class 2R
Certificates will be issued as a single certificate in definitive form in a
principal amount of $100 and shall have no interest rate. Amounts received
by
the Class 2R Certificates shall be deemed paid from the Group II Upper-Tier
REMIC.
Class
2X REMIC
The
Class
2X REMIC shall issue the following classes of interests. The Class 2X
Certificates shall represent a regular interest in the Class 2X REMIC and the
Class 2RX Certificates shall represent the sole class of residual interest
in
the Class 2X REMIC.
|
Class
2X REMIC
Designation
|
Interest
Rate
|
Class
2X
REMIC
Principal
Amount
|
|
Class
2X Certificates
|
(1)
|
(1)
|
_________________
|
(1)
|
The
Class 2X Certificates are entitled to 100% of the interest and principal
on the Class 2X Interest and the Class UT-Swap-IO Interest on each
Distribution Date.
|
In
addition to issuing the Class 2X Certificates, the Class 2X REMIC shall issue
the Class 2RX Certificates which shall be the sole class of residual interests
in the Class 2X REMIC. The Class 2RX Certificates will be issued as a single
certificate in definitive form in a principal amount of $100 and shall have
no
interest rate. Amounts received by the Class 2RX Certificates shall be deemed
paid from the Class 2X REMIC.
22
The
foregoing REMIC structure is intended to cause all of the cash from the Group
II
Mortgage Loans to flow through to the Group II Upper-Tier REMIC as cash flow
on
a REMIC regular interest, without creating any actual or potential shortfall
(other than for credit losses) to any Group II Trust REMIC regular interest.
It
is not intended that the Class 2R, Class 2RC or Class 2RX Certificates be
entitled to any cash flow pursuant to this Agreement except as provided in
Section 4.02(a)(ii)(A)(1) hereunder.
For
any
purpose for which the Pass-Through Rates are calculated, the interest rate
on
the Group II Mortgage Loans shall be appropriately adjusted to account for
the
difference between the monthly day count convention of the Group II Mortgage
Loans and the monthly day count convention of the regular interests issued
by
each of the REMICs. For purposes of calculating the Pass-Through Rates for
each
of the interests issued by the Group II Lower-Tier REMIC and the Group II
Middle-Tier REMIC such rates shall be adjusted to equal a monthly day count
convention based on a 30 day month for each Due Period and a 360-day year so
that the Group II Mortgage Loans and all regular interests will be using the
same monthly day count convention.
The
minimum denomination for each Class of the Group II Offered Certificates will
be
$50,000 initial Certificate Balance, with integral multiples of $1 in excess
thereof except that one Certificate in each Class may be issued in a different
amount. The minimum denomination for (a) the Class 2R and Class 2RC Certificates
will each be $100 and each will be a 100% Percentage Interest in such Class,
(b)
the Class 2RX Certificates will be a 100% Percentage Interest in such Class,
(c)
the Class 2P Certificates will be a $10 initial notional balance, with integral
multiples of $1 in excess thereof and (d) the Class 2X Certificates will be
equal to 10% of their initial notional balance, with integral multiples of
$1 in
excess thereof.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
|
Group
I Certificates
|
Class
1AV1, Class 1AF2A, Class 1AF2B, Class 1AF3A, Class 1AF3B, Class 1AF4A,
Class 1AF4B, Class 1AF5A, Class 1AF5B, Class 1AF6, Class 1AF7A, Class
1AF7B, Class 1M1, Class 1M2, Class 1M3, Class 1M4, Class 1M5, Class
1M6,
Class 1B1, Class 1B2, Class 1B3, Class 1R, Class 1RC and Class 1RX
Certificates.
|
|
Group
II Certificates
|
Class
2A1A, Class 2A1B, Class 2A2A, Class 2A2B, Class 2A3A, Class 2A3B,
Class
2M1, Class 2M2, Class 2M3, Class 2M4, Class 2M5, Class 2M6, Class
2B1,
Class 2B2, Class 2B3, Class 2R, Class 2RC and Class 2RX
Certificates.
|
|
Certificates
|
Group
I Certificates and Group II Certificates,
collectively.
|
23
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
Class
1A Certificates
|
The
Class 1AV1, Class 1AF2A, Class 1AF2B, Class 1AF3A, Class 1AF3B, Class
1AF4A, Class 1AF4B, Class 1AF5A, Class 1AF5B, Class 1AF6, Class 1AF7A
and
Class 1AF7B Certificates, collectively.
|
|
Class
2A Certificates
|
The
Class 2A1A, Class 2A1B, Class 2A2A, Class 2A2B, Class 2A3A and Class
2A3B
Certificates, collectively.
|
|
Class
A Certificates
|
The
Class 1A and Class 2A Certificates, collectively.
|
|
Class
1B Certificates
|
The
Class 1B1, Class 1B2 and Class 1B3 Certificates,
collectively.
|
|
Class
2B Certificates
|
The
Class 2B1, Class 2B2 and Class 2B3 Certificates,
collectively.
|
|
Class
B Certificates
|
The
Class 1B and Class 2B Certificates, collectively.
|
|
Class
1M Certificates
|
The
Class 1M1, Class 1M2, Class 1M3, Class 1M4, Class 1M5 and Class 1M6
Certificates, collectively.
|
|
Class
2M Certificates
|
The
Class 2M1, Class 2M2, Class 2M3, Class 2M4, Class 2M5 and Class 2M6
Certificates, collectively.
|
|
Class
M Certificates
|
The
Class 1M and Class 2M Certificates, collectively.
|
|
Group
I Residual Certificates
|
The
Class 1R, Class 1RC and Class 1RX Certificates,
collectively.
|
|
Group
II Residual Certificates
|
The
Class 2R, Class 2RC and Class 2RX Certificates,
collectively.
|
|
Residual
Certificates
|
The
Group I Residual Certificates and Group II Residual Certificates,
collectively.
|
|
ERISA
Restricted
Certificates
|
The
Private Certificates, the Physical Certificates and any Certificate
with a
rating below the lowest applicable permitted rating under the
Underwriters’ Exemption.
|
|
Fixed
Rate Certificates
|
The
Class 1A (other than the Class 1AV1 Certificates), Class 1M and Class
1B
Certificates.
|
24
|
LIBOR
Certificates
|
The
Class 1AV1, Class 2A, Class 2M and Class 2B Certificates,
collectively.
|
|
Lockout
Certificates
|
The
Class 1AF6, Class 1AF7A and Class 1AF7B Certificates,
collectively.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
|
Private
Certificates
|
Class
1P, Class 2P, Class 1X and Class 2X Certificates.
|
|
Physical
Certificates
|
The
Class 1R, Class 2R, Class 1RC, Class 2RC, Class 1RX and Class 2RX
Certificates.
|
|
Principal
Certificates
|
The
Fixed Rate Certificates and LIBOR Certificates.
|
|
Rating
Agencies
|
Xxxxx’x
and S&P.
|
|
Regular
Certificates
|
All
Classes of Certificates other than the Residual
Certificates.
|
|
Group
I Subordinated Certificates
|
The
Class 1M and Class 1B Certificates.
|
|
Group
II Subordinated Certificates
|
The
Class 2M and Class 2B Certificates.
|
|
Subordinated
Certificates
|
The
Class M and Class B Certificates.
|
ARTICLE
I
DEFINITIONS
Section
1.01Definitions.
Capitalized terms used herein but not defined herein shall have the meanings
given them in the applicable Servicing Agreement or Sale Agreement. Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
10-K
Filing Deadline:
As
defined in Section 13.04.
60+
Day Delinquent Mortgage Loan:
Each
Mortgage Loan with respect to which any portion of a Monthly Payment is, as
of
the last day of the prior Due Period, two (2) months or more past due (without
giving effect to any grace period), each Mortgage Loan in foreclosure, all
REO
Property and each Mortgage Loan for which the Mortgagor has filed for
bankruptcy.
Account:
Any of
the Distribution Account or the Excess Reserve Fund Account. Each such Account
shall be a separate Eligible Account.
Accrued
Certificate Interest:
With
respect to any Distribution Date for each Class of Principal Certificates,
the
amount of interest accrued during the related Interest Accrual Period at the
applicable Pass-Through Rate on the related Class Certificate Balance
immediately prior to such Distribution Date, as reduced by such Class’s share of
Net Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for the
related Due Period allocated to such Class pursuant to Section 4.01 or 4.02,
as
applicable.
25
Additional
Form 10-D Disclosure:
As
defined in Section 13.03.
Additional
Form 10-K Disclosure:
As
defined in Section 13.04.
Additional
Servicer:
Each
affiliate of each Servicer that services any of the Mortgage Loans and each
Person who is not an affiliate of the any Servicer, who services 10% or more
of
the Mortgage Loans of any Group. For clarification purposes, the Master Servicer
and the Securities Administrator are Additional Servicers.
Adjusted
Net Mortgage Interest Rate:
As to
each Mortgage Loan and at any time, the per
annum
rate
equal to the Mortgage Interest Rate less the Expense Fee Rate.
Administrative
Fee Rate:
With
respect to any Mortgage Loan, the Master Servicing Fee Rate.
Administrative
Fees:
As to
each Mortgage Loan, the fees calculated by reference to the Administrative
Fee
Rate.
Advance:
Any
Monthly Advance or Servicing Advance.
Affiliate:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such first Person. For the purposes of this definition,
“control” means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
Agreement:
This
Master Servicing and Trust Agreement and all amendments or supplements
hereto.
Applied
Realized Loss Amount:
A Group
I Applied Realized Loss Amount or a Group II Applied Realized Loss Amount,
as
applicable.
Assignment
Agreement:
A Step
1 Assignment Agreement or a Step 2 Assignment Agreement.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form (other than the assignee’s name and recording information not
yet returned from the recording office), reflecting the sale of the Mortgage
to
the Trustee.
Auction
Call:
As
defined in Section 9.03(b).
Auctioned
Property:
as
defined in Section 11.01.
26
Available
Funds:
With
respect to any Distribution Date and each Group of Mortgage Loans, to the extent
received by the Securities Administrator, (x) the sum of (without duplication)
(i) all scheduled installments of interest (net of the allocable share of the
related Expense Fees for such Group of Mortgage Loans) and principal due on
the
Due Date on such Group of Mortgage Loans in the related Due Period and received
on or prior to the related Determination Date, together with any Monthly
Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds
and Liquidation Proceeds received during the related Principal Prepayment Period
with respect to such Group of Mortgage Loans (in each case, net of unreimbursed
expenses incurred in connection with a liquidation or foreclosure and
unreimbursed Advances, if any, with respect to such Group of Mortgage Loans);
(iii) all partial or full prepayments (excluding Prepayment Premiums) on such
Group of Mortgage Loans received during the related Principal Prepayment Period
together with all Compensating Interest paid in connection therewith; (iv)
all
amounts received with respect to such Distribution Date in connection with
a
purchase or repurchase of a Deleted Mortgage Loan of such Group; (v) all amounts
received with respect to such Distribution Date as a Substitution Adjustment
Amount received in connection with the substitution of a Mortgage Loan of such
Group; (vi) solely with respect to amounts allocated to the Group II Mortgage
Loans, all Net Swap Receipt Amounts, if any, less Net Swap Payment Amounts,
if
any, for such Distribution Date; and (viii) all proceeds received with respect
to the termination of the Trust Fund allocable to such Group of Mortgage Loans
pursuant to Section 11.01; reduced by (y) all amounts in reimbursement for
Monthly Advances and Xxxxxxxxx Advances previously made with respect to such
Group of Mortgage Loans, and other amounts as to which the Servicers, the
Depositor, the Master Servicer, the Securities Administrator, the Trustee (or
co-trustee) or the Custodians are entitled to be paid or reimbursed pursuant
to
this Agreement and with respect to such Group of Mortgage Loans.
Avelo:
Avelo
Mortgage, L.L.C., a Delaware limited liability company, and its successors
in
interest.
Avelo
Servicing Agreement:
The
Flow Servicing Agreement, dated as of January 1, 2006, between Avelo and
GSMC, as modified by the related Assignment Agreements.
Back-Up
Certification:
As
defined in Section 13.06.
Basic
Principal Distribution Amount:
With
respect to any Distribution Date and any Group of Mortgage Loans, the excess
of
(i) the aggregate Principal Remittance Amount for such Distribution Date and
such Group over (ii) the Excess Overcollateralized Amount for such Group, if
any, for such Distribution Date.
Basis
Risk Carry Forward Amount:
With
respect to each Class of Principal Certificates, as of any Distribution Date,
the sum of (A) if on such Distribution Date the Pass-Through Rate for any Class
of Principal Certificates is based upon the applicable WAC Cap, the excess,
if
any, of (i) the amount of interest such Class of Certificates would otherwise
be
entitled to receive on such Distribution Date had such Pass-Through Rate not
been subject to the applicable WAC Cap, over (ii) the amount of interest that
Class of Certificates received on such Distribution Date taking into account
the
applicable WAC Cap and (B) the Basis Risk Carry Forward Amount for such Class
of
Certificates for all previous Distribution Dates not previously paid, together
with interest thereon at a rate equal to the applicable Pass-Through Rate for
such Class of Certificates for such Distribution Date, without giving effect
to
the applicable WAC Cap.
27
Basis
Risk Payment:
For any
Distribution Date with respect to each Group of Certificates, an amount equal
to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts
attributable to such Group for such Distribution Date, (ii) the Class 1X
Distributable Amount or Class 2X Distributable Amount, as applicable, (prior
to
any reduction for Basis Risk Payments) or (iii) solely with respect to the
Group
II Certificates, the amount payable from the Supplemental Interest
Trust.
BNY:
The
Bank of New York Trust Company, National Association, a national banking
association, and its successors in interest.
Book-Entry
Certificates:
As
specified in the Preliminary Statement.
Business
Day:
Any day
other than (i) Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in (a) the States of New York, California, Texas, Maryland
and Minnesota, (b) with respect to a Servicer, the State in which such
Servicer’s servicing operations are located, or (c) the State in which the
Trustee’s operations are located, are authorized or obligated by law or
executive order to be closed.
Certificate:
Any one
of the Certificates executed by the Securities Administrator in substantially
the forms attached hereto as exhibits.
Certificate
Balance:
With
respect to any Class of Principal Certificates, at any date, the maximum dollar
amount of principal to which the Holder thereof is then entitled hereunder,
such
amount being equal to the Denomination thereof minus all distributions of
principal previously made with respect thereto and in the case of any
Subordinated Certificates, reduced by any Applied Realized Loss Amounts
applicable to such Class of Subordinated Certificates; provided,
however,
that
immediately following the Distribution Date on which a Subsequent Recovery
is
distributed, the Class Certificate Balances of any Class or Classes of
Certificates of the related Group that have been previously reduced by Applied
Realized Loss Amounts will be increased, in order of seniority, by the amount
of
the Subsequent Recovery distributed on such Distribution Date (up to the amount
of Applied Realized Loss Amounts allocated to such Class or Classes). The Class
1X, Class 2X, Class 1P and Class 2P Certificates have no Certificate Balance.
The Class 1P and Class 2P Certificates have a $100 notional certificate balance.
Neither the Class 1P nor the Class 2P Certificates will receive payments on
its
notional balance and its notional balance will not change for so long as such
Class is outstanding. The notional balance of each of the Class 1X and Class
2X
Certificates is equal initially to the Cut-off Date Pool Principal Balance
for
the related Group of Mortgage Loans and thereafter to the Pool Stated Principal
Balance of the related Group of Mortgage Loans.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
such Book-Entry Certificate.
Certificate
Register:
The
register maintained pursuant to Section 5.02.
28
Certificateholder
or Holder:
The
person in whose name a Certificate is registered in the Certificate Register,
except that, solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor or any
affiliate of the Depositor shall be deemed not to be Outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary
to
effect such consent has been obtained; provided,
however,
that if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to
be
Outstanding for purposes of any provision hereof that requires the consent
of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Securities Administrator is entitled to rely
conclusively on a certification of the Depositor or any affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
Certification
Parties:
As
defined in Section 13.06.
Certifying
Person:
As
defined in Section 13.06.
Class:
All
Certificates bearing the same class designation as set forth in this
Agreement.
Class
1A Certificates:
As
specified in the Preliminary Statement.
Class
1A Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the aggregate Class
Certificate Balance of the Class 1A Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 86.30% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B)
the
excess, if any, of the aggregate Stated Principal Balance of the Group I
Mortgage Loans for such Distribution Date over
the
Overcollateralization Floor for the Group I Certificates.
Class
1AV1 Certificates:
All
Certificates bearing the class designation of “Class 1AV1.”
Class
1AF2A Certificates:
All
Certificates bearing the class designation of “Class 1AF2A.”
Class
1AF2B Certificates:
All
Certificates bearing the class designation of “Class 1AF2B.”
Class
1AF3A Certificates:
All
Certificates bearing the class designation of “Class 1AF3A.”
Class
1AF3B Certificates:
All
Certificates bearing the class designation of “Class 1AF3B.”
Class
1AF4A Certificates:
All
Certificates bearing the class designation of “Class 1AF4A.”
29
Class
1AF4B Certificates:
All
Certificates bearing the class designation of “Class 1AF4B.”
Class
1AF5A Certificates:
All
Certificates bearing the class designation of “Class 1AF5A.”
Class
1AF5B Certificates:
All
Certificates bearing the class designation of “Class 1AF5B.”
Class
1AF6 Certificates:
All
Certificates bearing the class designation of “Class 1AF6.”
Class
1AF7A Certificates:
All
Certificates bearing the class designation of “Class 1AF7A.”
Class
1AF7B Certificates:
All
Certificates bearing the class designation of “Class 1AF7B.”
Class
1B Certificates:
As
specified in the Preliminary Statement.
Class
1B1 Certificates:
All
Certificates bearing the class designation of “Class 1B1.”
Class
1B1 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 1M1
Certificates (after taking into account the distribution of the Class 1M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 1M2 Certificates (after taking into account
the
distribution of the Class 1M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 1M3 Certificates (after
taking into account the distribution of the Class 1M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 1M4 Certificates (after taking into account the distribution of the Class
1M4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 1M5 Certificates (after taking into account
the
distribution of the Class 1M5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class 1M6 Certificates (after
taking into account the distribution of the Class 1M6 Principal Distribution
Amount on such Distribution Date) and (H) the Class Certificate Balance of
the
Class 1B1 Certificates immediately prior to such Distribution Date over (ii)
the
lesser of (A) the product of (x) 95.80% and (y) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Group I
Mortgage Loans for such Distribution Date over the Overcollateralization Floor
for the Group I Certificates.
Class
1B2 Certificates:
All
Certificates bearing the class designation of “Class 1B2.”
30
Class
1B2 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 1M1
Certificates (after taking into account the distribution of the Class 1M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 1M2 Certificates (after taking into account
the
distribution of the Class 1M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 1M3 Certificates (after
taking into account the distribution of the Class 1M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 1M4 Certificates (after taking into account the distribution of the Class
1M4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 1M5 Certificates (after taking into account
the
distribution of the Class 1M5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class 1M6 Certificates (after
taking into account the distribution of the Class 1M6 Principal Distribution
Amount on such Distribution Date), (H) the Class Certificate Balance of the
Class 1B1 Certificates (after taking into account the distribution of the Class
1B1 Principal Distribution Amount on such Distribution Date) and (I) the Class
Certificate Balance of the Class 1B2 Certificates immediately prior to that
Distribution Date over (ii) the lesser of (A) the product of (x) 96.50% and
(y)
the aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over the
Overcollateralization Floor for the Group I Certificates.
Class
1B3 Certificates:
All
Certificates bearing the class designation of “Class 1B3.”
Class
1B3 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 1M1
Certificates (after taking into account the distribution of the Class 1M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 1M2 Certificates (after taking into account
the
distribution of the Class 1M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 1M3 Certificates (after
taking into account the distribution of the Class 1M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 1M4 Certificates (after taking into account the distribution of the Class
1M4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 1M5 Certificates (after taking into account
the
distribution of the Class 1M5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class 1M6 Certificates (after
taking into account the distribution of the Class 1M6 Principal Distribution
Amount on such Distribution Date), (H) the Class Certificate Balance of the
Class 1B1 Certificates (after taking into account the distribution of the Class
1B1 Principal Distribution Amount on such Distribution Date), (I) the Class
Certificate Balance of the Class 1B2 Certificates (after taking into account
the
distribution of the Class 1B2 Principal Distribution Amount on such Distribution
Date) and (J) the Class Certificate Balance of the Class 1B3 Certificates
immediately prior to that Distribution Date over (ii) the lesser of (A) the
product of (x) 97.40% and (y) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date, and (B) the excess, if any,
of the aggregate Stated Principal Balance of the Group I Mortgage Loans for
such
Distribution Date over the Overcollateralization Floor for the Group I
Certificates.
31
Class
1M Certificates:
As
specified in the Preliminary Statement.
Class
1M1 Certificates:
All
Certificates bearing the class designation of “Class 1M1.”
Class
1M1 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), and (B) the Class Certificate Balance of the Class 1M1
Certificates immediately prior to such Distribution Date over (ii) the lesser
of
(A) the product of (x) 89.70% and (y) the aggregate Stated Principal Balance
of
the Group I Mortgage Loans for such Distribution Date, and (B) the excess,
if
any, of the aggregate Stated Principal Balance of the Group I Mortgage Loans
for
such Distribution Date over the Overcollateralization Floor for the Group I
Certificates.
Class
1M2 Certificates:
All
Certificates bearing the class designation of “Class 1M2.”
Class
1M2 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 1M1
Certificates (after taking into account the distribution of the Class 1M1
Principal Distribution Amount on such Distribution Date) and (C) the Class
Certificate Balance of the Class 1M2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 91.40% and
(y)
the aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over the
Overcollateralization Floor for the Group I Certificates.
Class
1M3 Certificates:
All
Certificates bearing the class designation of “Class 1M3.”
Class
1M3 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 1M1
Certificates (after taking into account the distribution of the Class 1M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 1M2 Certificates (after taking into account
the
distribution of the Class 1M2 Principal Distribution Amount on such Distribution
Date) and (D) the Class Certificate Balance of the Class 1M3 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 92.60% and (y) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date, and (B) the excess, if any,
of the aggregate Stated Principal Balance of the Group I Mortgage Loans for
such
Distribution Date over the Overcollateralization Floor for the Group I
Certificates.
32
Class
1M4 Certificates:
All
Certificates bearing the class designation of “Class 1M4.”
Class
1M4 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 1M1
Certificates (after taking into account the distribution of the Class 1M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 1M2 Certificates (after taking into account
the
distribution of the Class 1M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 1M3 Certificates (after
taking into account the distribution of the Class 1M3 Principal Distribution
Amount on such Distribution Date) and (E) the Class Certificate Balance of
the
Class 1M4 Certificates immediately prior to such Distribution Date over (ii)
the
lesser of (A) the product of (x) 93.70% and (y) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Group I
Mortgage Loans for such Distribution Date over the Overcollateralization Floor
for the Group I Certificates.
Class
1M5 Certificates:
All
Certificates bearing the class designation of “Class 1M5.”
Class
1M5 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 1M1
Certificates (after taking into account the distribution of the Class 1M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 1M2 Certificates (after taking into account
the
distribution of the Class 1M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 1M3 Certificates (after
taking into account the distribution of the Class 1M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 1M4 Certificates (after taking into account the distribution of the Class
1M4 Principal Distribution Amount on such Distribution Date), and (F) the Class
Certificate Balance of the Class 1M5 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 94.40% and
(y)
the aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over the
Overcollateralization Floor for the Group I Certificates.
33
Class
1M6 Certificates:
All
Certificates bearing the class designation of “Class 1M6.”
Class
1M6 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 1A Certificates (after taking into
account the distribution of the Class 1A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 1M1
Certificates (after taking into account the distribution of the Class 1M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 1M2 Certificates (after taking into account
the
distribution of the Class 1M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 1M3 Certificates (after
taking into account the distribution of the Class 1M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 1M4 Certificates (after taking into account the distribution of the Class
1M4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 1M5 Certificates (after taking into account
the
distribution of the Class 1M5 Principal Distribution Amount on such Distribution
Date) and (G) the Class Certificate Balance of the Class 1M6 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 95.10% and (y) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date, and (B) the excess, if any,
of the aggregate Stated Principal Balance of the Group I Mortgage Loans for
such
Distribution Date over the Overcollateralization Floor for the Group I
Certificates.
Class
1P Certificates:
All
Certificates bearing the class designation of “Class 1P.”
Class
1R Certificates:
All
Certificates bearing the class designation of “Class 1R.”
Class
1RC Certificates:
All
Certificates bearing the class designation of “Class 1RC.”
Class
1RX Certificates:
All
Certificates bearing the class designation of “Class 1RX.”
Class
1X Certificates:
All
Certificates bearing the class designation of “Class 1X.”
Class
1X Distributable Amount:
On any
Distribution Date, (i) as a distribution in respect of interest, the amount
of
interest that has accrued on the Class 1X Interest and not applied as an Extra
Principal Distribution Amount on such Distribution Date, plus any such accrued
interest remaining undistributed from prior Distribution Dates, plus, without
duplication, (ii) as a distribution in respect of principal, any portion of
the
principal balance of the Class 1X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid as a Basis
Risk Payment.
Class
1X Interest:
The
Group I Upper-Tier Regular Interest as specified and described in the
Preliminary Statement and the related footnote thereto.
34
Class
1X REMIC:
As
defined in the Preliminary Statement.
Class
2A Certificates:
As
specified in the Preliminary Statement.
Class
2A1A Certificates:
All
Certificates bearing the class designation of “Class 2A1A.”
Class
2A1B Certificates:
All
Certificates bearing the class designation of “Class 2A1B.”
Class
2A2A Certificates:
All
Certificates bearing the class designation of “Class 2A2A.”
Class
2A2B Certificates:
All
Certificates bearing the class designation of “Class 2A2B.”
Class
2A3A Certificates:
All
Certificates bearing the class designation of “Class 2A3A.”
Class
2A3B Certificates:
All
Certificates bearing the class designation of “Class 2A3B.”
Class
2A Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the aggregate Class
Certificate Balance of the Class 2A Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 84.70% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B)
the
excess, if any, of the aggregate Stated Principal Balance of the Group II
Mortgage Loans for such Distribution Date over
the
Overcollateralization Floor for the Group II Certificates.
Class
2B Certificates:
As
specified in the Preliminary Statement.
Class
2B1 Certificates:
All
Certificates bearing the class designation of “Class 2B1.”
Class
2B1 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 2M1
Certificates (after taking into account the distribution of the Class 2M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 2M2 Certificates (after taking into account
the
distribution of the Class 2M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 2M3 Certificates (after
taking into account the distribution of the Class 2M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 2M4 Certificates (after taking into account the distribution of the Class
2M4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 2M5 Certificates (after taking into account
the
distribution of the Class 2M5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class 2M6 Certificates (after
taking into account the distribution of the Class 2M6 Principal Distribution
Amount on such Distribution Date) and (H) the Class Certificate Balance of
the
Class 2B1 Certificates immediately prior to such Distribution Date over (ii)
the
lesser of (A) the product of (x) 96.10% and (y) the aggregate Stated Principal
Balance of the Group II Mortgage Loans for such Distribution Date, and (B)
the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor for the Group
II
Certificates.
35
Class
2B2 Certificates:
All
Certificates bearing the class designation of “Class 2B2.”
Class
2B2 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 2M1
Certificates (after taking into account the distribution of the Class 2M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 2M2 Certificates (after taking into account
the
distribution of the Class 2M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 2M3 Certificates (after
taking into account the distribution of the Class 2M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 2M4 Certificates (after taking into account the distribution of the Class
2M4 Principal Distribution Amount on such Distribution Date), (F)
the
Class Certificate Balance of the Class 2M5 Certificates (after taking into
account the distribution of the Class 2M5 Principal Distribution Amount on
such
Distribution Date), (G) the Class Certificate Balance of the Class 2M6
Certificates (after taking into account the distribution of the Class 2M6
Principal Distribution Amount on such Distribution Date), (H) the Class
Certificate Balance of the Class 2B1 Certificates (after taking into account
the
distribution of the Class 2B1 Principal Distribution Amount on such Distribution
Date)
and (I)
the Class Certificate Balance of the Class 2B2 Certificates immediately prior
to
that Distribution Date over (ii) the lesser of (A) the product of (x) 96.80%
and
(y) the aggregate Stated Principal Balance of the Group II Mortgage Loans for
such Distribution Date, and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor for the Group II Certificates.
Class
2B3 Certificates:
All
Certificates bearing the class designation of “Class 2B3.”
Class
2B3 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 2M1
Certificates (after taking into account the distribution of the Class 2M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 2M2 Certificates (after taking into account
the
distribution of the Class 2M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 2M3 Certificates (after
taking into account the distribution of the Class 2M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 2M4 Certificates (after taking into account the distribution of the Class
2M4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 2M5 Certificates (after taking into account
the
distribution of the Class 2M5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class 2M6 Certificates (after
taking into account the distribution of the Class 2M6 Principal Distribution
Amount on such Distribution Date), (H) the Class Certificate Balance of the
Class 2B1 Certificates (after taking into account the distribution of the Class
2B1 Principal Distribution Amount on such Distribution Date), (I) the Class
Certificate Balance of the Class 2B2 Certificates (after taking into account
the
distribution of the Class 2B2 Principal Distribution Amount on such Distribution
Date) and (J) the Class Certificate Balance of the Class 2B3 Certificates
immediately prior to that Distribution Date over (ii) the lesser of (A) the
product of (x) 97.80% and (y) the aggregate Stated Principal Balance of the
Group II Mortgage Loans for such Distribution Date, and (B) the excess, if
any,
of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor for the Group II
Certificates.
36
Class
2M Certificates:
As
specified in the Preliminary Statement.
Class
2M1 Certificates:
All
Certificates bearing the class designation of “Class 2M1.”
Class
2M1 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), and (B) the Class Certificate Balance of the Class 2M1
Certificates immediately prior to such Distribution Date over (ii) the lesser
of
(A) the product of (x) 87.60% and (y) the aggregate Stated Principal Balance
of
the Group II Mortgage Loans for such Distribution Date, and (B) the excess,
if
any, of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor for the Group II
Certificates.
Class
2M2 Certificates:
All
Certificates bearing the class designation of “Class 2M2.”
Class
2M2 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 2M1
Certificates (after taking into account the distribution of the Class 2M1
Principal Distribution Amount on such Distribution Date) and (C) the Class
Certificate Balance of the Class 2M2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 90.20% and
(y)
the aggregate Stated Principal Balance of the Group II Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor for the Group II Certificates.
37
Class
2M3 Certificates:
All
Certificates bearing the class designation of “Class 2M3.”
Class
2M3 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 2M1
Certificates (after taking into account the distribution of the Class 2M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 2M2 Certificates (after taking into account
the
distribution of the Class 2M2 Principal Distribution Amount on such Distribution
Date) and (D) the Class Certificate Balance of the Class 2M3 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 91.80% and (y) the aggregate Stated Principal Balance of the
Group II Mortgage Loans for such Distribution Date, and (B) the excess, if
any,
of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor for the Group II
Certificates.
Class
2M4 Certificates:
All
Certificates bearing the class designation of “Class 2M4.”
Class
2M4 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 2M1
Certificates (after taking into account the distribution of the Class 2M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 2M2 Certificates (after taking into account
the
distribution of the Class 2M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 2M3 Certificates (after
taking into account the distribution of the Class 2M3 Principal Distribution
Amount on such Distribution Date) and (E) the Class Certificate Balance of
the
Class 2M4 Certificates immediately prior to such Distribution Date over (ii)
the
lesser of (A) the product of (x) 93.20% and (y) the aggregate Stated Principal
Balance of the Group II Mortgage Loans for such Distribution Date, and (B)
the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor for the Group
II
Certificates.
Class
2M5 Certificates:
All
Certificates bearing the class designation of “Class 2M5.”
Class
2M5 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 2M1
Certificates (after taking into account the distribution of the Class 2M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 2M2 Certificates (after taking into account
the
distribution of the Class 2M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 2M3 Certificates (after
taking into account the distribution of the Class 2M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 2M4 Certificates (after taking into account the distribution of the Class
2M4 Principal Distribution Amount on such Distribution Date), and (F) the Class
Certificate Balance of the Class 2M5 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 94.30% and
(y)
the aggregate Stated Principal Balance of the Group II Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor for the Group II Certificates.
38
Class
2M6 Certificates:
All
Certificates bearing the class designation of “Class 2M6.”
Class
2M6 Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the sum of (A) the aggregate
Class Certificate Balance of the Class 2A Certificates (after taking into
account the distribution of the Class 2A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class 2M1
Certificates (after taking into account the distribution of the Class 2M1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class 2M2 Certificates (after taking into account
the
distribution of the Class 2M2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class 2M3 Certificates (after
taking into account the distribution of the Class 2M3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class 2M4 Certificates (after taking into account the distribution of the Class
2M4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 2M5 Certificates (after taking into account
the
distribution of the Class 2M5 Principal Distribution Amount on such Distribution
Date) and (G) the Class Certificate Balance of the Class 2M6 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 95.40% and (y) the aggregate Stated Principal Balance of the
Group II Mortgage Loans for such Distribution Date, and (B) the excess, if
any,
of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor for the Group II
Certificates.
Class
2P Certificates:
All
Certificates bearing the class designation of “Class 2P.”
Class
2R Certificates:
All
Certificates bearing the class designation of “Class 2R.”
Class
2RC Certificates:
All
Certificates bearing the class designation of “Class 2RC.”
Class
2RX Certificates:
All
Certificates bearing the class designation of “Class 2RX.”
Class
2X Certificates:
All
Certificates bearing the class designation of “Class 2X.”
39
Class
2X Distributable Amount:
On any
Distribution Date, (i) as a distribution in respect of interest, the amount
of
interest that has accrued on the Class 2X Interest and not applied as an Extra
Principal Distribution Amount on such Distribution Date, plus any such accrued
interest remaining undistributed from prior Distribution Dates, plus, without
duplication, (ii) as a distribution in respect of principal, any portion of
the
principal balance of the Class 2X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid as a Basis
Risk Payment.
Class
2X Interest:
The
Class II Upper-Tier Regular Interest as specified and described in the
Preliminary Statement and the related footnote thereto.
Class
2X REMIC:
As
defined in the Preliminary Statement.
Class
A Certificates:
As
specified in the Preliminary Statement.
Class
B Certificates:
As
specified in the Preliminary Statement.
Class
Certificate Balance:
With
respect to any Class and as to any date of determination, the aggregate of
the
Certificate Balances of all Certificates of such Class as of such date.
Class
IO Shortfall: As
defined in Section 8.14. For the avoidance of doubt, the Class IO Shortfall
for
any Distribution Date shall equal the amount payable to the Class 2X
Certificates in respect of amounts due to the Swap Provider on such Distribution
Date (other than Defaulted Swap Termination Payments) in excess of the amount
payable on the Class 2X Interest on such Distribution Date, all as further
provided in Section 8.14.
Class
M Certificates:
As
specified in the Preliminary Statement.
Closing
Date:
April
30, 2007.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collection
Account:
The
“Custodial Account” as defined in the applicable Servicing
Agreement.
Commission:
The
U.S. Securities and Exchange Commission.
Compensating
Interest:
For any
Distribution Date, each Servicer, other than Xxxxx Fargo shall provide
compensating interest equal to the lesser of (A) the difference between the
interest paid by the applicable mortgagors for that Prepayment Period in
connection with the prepayments and thirty (30) days’ interest on the related
Mortgage Loans and (B) (i) one-half the applicable monthly servicing fee
received for the related Distribution Date in the case of Avelo, GreenPoint
and
Countrywide or (ii) the applicable monthly servicing fee received for the
related Distribution Date, in the case of NatCity and Wachovia. Xxxxx Fargo
will
provide Compensating Interest equal to the aggregate of the prepayment interest
shortfalls on the Mortgage Loans for the related Distribution Date resulting
from voluntary principal prepayments of the mortgage loans during the related
prepayment period.
40
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Corporate
Trust Office:
With
respect to the Securities Administrator, the principal office of the Securities
Administrator is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000
and its office for certificate transfer services is located at Sixth Street
and
Marquette Avenue, Minneapolis, Minnesota 55479, Attention: Corporate Trust
Services, GSAA Home Equity Trust 2007-5, or at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders. With respect to the Trustee, the principal office of the
Trustee at 0000 Xxxx Xx. Xxxxxx Xxxxx, Santa Ana, California 92705-4934,
Attention: Trust Administration - GS0705, or at such other address as the
Trustee may designate from time to time by notice to the
Certificateholders.
Corresponding
Class:
The
Class of interests in one Trust REMIC created under this Agreement that
corresponds to the Class of interests in the other Trust REMIC or to a Class
of
Certificates in the manner set out below:
|
Lower-Tier
Regular
Interest
|
Upper-Tier
Regular
Interest
|
Corresponding
Class
of Certificates
|
|
Class
LT-1AV1
|
Class
1AV1
|
Class
1AV1
|
|
Class
LT-2A1A
|
Class
2A1A
|
Class
2A1A
|
|
Class
LT-2A1B
|
Class
2A1B
|
Class
2A1B
|
|
Class
LT-1AF2A
|
Class
1AF2A
|
Class
1AF2A
|
|
Class
LT-1AF2B
|
Class
1AF2B
|
Class
1AF2B
|
|
Class
LT-2A2A
|
Class
2A2A
|
Class
2A2A
|
|
Class
LT-2A2B
|
Class
2A2B
|
Class
2A2B
|
|
Class
LT-1AF3A
|
Class
1AF3A
|
Class
1AF3A
|
|
Class
LT-1AF3B
|
Class
1AF3B
|
Class
1AF3B
|
|
Class
LT-2A3A
|
Class
2A3A
|
Class
2A3A
|
|
Class
LT-2A3B
|
Class
2A3B
|
Class
2A3B
|
|
Class
LT-1AF4A
|
Class
1AF4A
|
Class
1AF4A
|
|
Class
LT-1AF4B
|
Class
1AF4B
|
Class
1AF4B
|
|
Class
LT-1AF5A
|
Class
1AF5A
|
Class
1AF5A
|
|
Class
LT-1AF5B
|
Class
1AF5B
|
Class
1AF5B
|
|
Class
LT-1AF6
|
Class
1AF6
|
Class
1AF6
|
|
Class
LT-1AF7A
|
Class
1AF7A
|
Class
1AF7A
|
|
Class
LT-1AF7B
|
Class
1AF7B
|
Class
1AF7B
|
|
Class
LT-1M1
|
Class
1M1
|
Class
1M1
|
|
Class
LT-2M1
|
Class
2M1
|
Class
2M1
|
|
Class
LT-1M2
|
Class
1M2
|
Class
1M2
|
|
Class
LT-2M2
|
Class
2M2
|
Class
2M2
|
|
Class
LT-1M3
|
Class
1M3
|
Class
1M3
|
41
|
Lower-Tier
Regular
Interest
|
Upper-Tier
Regular
Interest
|
Corresponding
Class
of Certificates
|
|
Class
LT-2M3
|
Class
2M3
|
Class
2M3
|
|
Class
LT-1M4
|
Class
1M4
|
Class
1M4
|
|
Class
LT-2M4
|
Class
2M4
|
Class
2M4
|
|
Class
LT-1M5
|
Class
1M5
|
Class
1M5
|
|
Class
LT-2M5
|
Class
2M5
|
Class
2M5
|
|
Class
LT-1M6
|
Class
1M6
|
Class
1M6
|
|
Class
LT-2M6
|
Class
2M6
|
Class
2M6
|
|
Class
LT-1B1
|
Class
1B1
|
Class
1B1
|
|
Class
LT-2B1
|
Class
2B1
|
Class
2B1
|
|
Class
LT-1B2
|
Class
1B2
|
Class
1B2
|
|
Class
LT-2B2
|
Class
2B2
|
Class
2B2
|
|
Class
LT-1B3
|
Class
1B3
|
Class
1B3
|
|
Class
LT-2B3
|
Class
2B3
|
Class
2B3
|
Countrywide:
Countrywide Home Loans, Inc., a New York corporation, and its successors in
interest.
Countrywide
Mortgage Loans:
The
Mortgage Loans acquired by the Purchaser pursuant to the Countrywide Sale
Agreement.
Countrywide
Sale Agreement:
The
Master Mortgage Loan Purchase Agreement, dated as of July 1, 2004, between
Countrywide, Countrywide Servicing and GSMC, as amended by that certain
Amendment Reg AB, dated as of January 1, 2006.
Countrywide
Servicing:
Countrywide Home Loans Servicing LP, a Texas limited partnership, and its
successors in interest.
Countrywide
Servicing Agreement:
The
Servicing Agreement, dated as of July 1, 2004, as amended by that certain
Amendment Reg AB dated as of January 1, 2006, between Countrywide, Countrywide
Servicing and GSMC, as modified by the related Assignment
Agreements.
Custodial
File:
With
respect to each Mortgage Loan, any Mortgage Loan Document which is delivered
to
the applicable Custodian or which at any time comes into the possession of
that
Custodian.
Custodians:
BNY,
Deutsche Bank, U.S. Bank and Xxxxx Fargo.
Cut-off
Date:
April
1, 2007.
Cut-off
Date Pool Principal Balance:
With
respect to each Group of Mortgage Loans, the aggregate Stated Principal Balance
of all Mortgage Loans of such Group as of the Cut-off Date.
42
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the Stated Principal Balance thereof as of the close of
business on the Cut-off Date (after giving effect to payments of principal
due
on that date, whether or not received).
Defaulted
Swap Termination Payment:
Any
Swap Termination Payment required to be paid by the Supplemental Interest Trust
to the Swap Provider pursuant to the Interest Rate Swap Agreement as a result
of
an Event of Default (as defined in the Interest Rate Swap Agreement) with
respect to which the Swap Provider is the defaulting party or a Termination
Event (as defined in the Interest Rate Swap Agreement) (other than Illegality
or
a Tax Event that is not a Tax Event Upon Merger (each as defined in the Interest
Rate Swap Agreement)) with respect to which the Swap Provider is the sole
Affected Party (as defined in the Interest Rate Swap Agreement) or with respect
to a termination resulting from a Substitution Event (as defined in the Interest
Rate Swap Agreement).
Definitive
Certificates:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 5.02(e).
Deleted
Mortgage Loan:
A
Mortgage Loan which is purchased or repurchased by any Responsible Party, the
Purchaser or the Depositor in accordance with the terms of any Sale Agreement,
any Assignment Agreement or this Agreement, as applicable, or which is, in
the
case of a substitution by any Servicer (if permitted under the applicable
Servicing Agreement) or by the Purchaser pursuant to the Assignment Agreements
or this Agreement, replaced or to be replaced with a substitute mortgage
loan.
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Certificate Balance of this Certificate” or the Percentage Interest
appearing on the face thereof; provided,
that
with
respect to the Class 1P, Class 2P, Class 1X and Class 2X Certificates, the
Denomination will be expressed as the initial notional balance of such
Class.
Depositor:
GS
Mortgage Securities Corp., a Delaware corporation, and its successors in
interest.
Depository:
The
initial Depository shall be The Depository Trust Company, the nominee of which
is CEDE & Co., as the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a “clearing corporation” as defined in Section
8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository
Institution:
Any
depository institution or trust company, including the Trustee and the
Securities Administrator, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated “P-1” by Xxxxx’x and “A-1” by Standard & Poor’s.
Depository
Participant:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
43
Determination
Date:
With
respect to each Distribution Date, the Business Day immediately preceding the
related Remittance Date.
Deutsche
Bank:
Deutsche Bank National Trust Company, a national banking association, and its
successors in interest.
Distribution
Account:
The
separate Eligible Account created by the Securities Administrator pursuant
to
Section 3.01(b) in the name of the Securities Administrator as paying agent
for
the benefit of the Trustee and the Certificateholders and designated “Xxxxx
Fargo Bank, National Association, as paying agent, in trust for registered
holders of GSAA Home Equity Trust 2007-5, Asset-Backed Certificates, Series
2007-5.” Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution
Date:
The
25th day of each month or, if such day is not a Business Day, the immediately
succeeding Business Day, commencing in May 2007.
Document
Certification and Exception Report:
The
report attached to Exhibit
F
hereto.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Due
Period:
With
respect to any Distribution Date, the period commencing on the second day of
the
calendar month preceding the month in which that Distribution Date occurs and
ending on the first day of the calendar month in which that Distribution Date
occurs, except, in the case of the Goldman Conduit Mortgage Loans, the period
commencing on the first day of the month and ending on the last day of the
month
preceding the month of the Remittance Date.
XXXXX:
The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Eligible
Account:
Either
(i) an account maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is a
subsidiary of a holding company, the short-term unsecured debt obligations
of
such holding company) are rated “A-1+” by Standard & Poor’s, “F1” by Fitch
and “P-1” by Xxxxx’x (or a comparable rating if another Rating Agency is
specified by the Depositor by written notice to the Servicer) at the time any
amounts are held on deposit therein, (ii) a trust account or accounts maintained
with a federal or state chartered depository institution or trust company acting
in its fiduciary capacity or (iii) any other account acceptable to each Rating
Agency. Eligible Accounts may bear interest, and may include, if otherwise
qualified under this definition, accounts maintained with the Securities
Administrator or the Trustee.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
XXXXX-Xxxxxxxxxx
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of Prohibited Transaction Exemption (“PTE”)
2002-41, 67 Fed. Reg. 54487 (2002) (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of
Labor.
44
ERISA-Restricted
Certificate:
As
specified in the Preliminary Statement.
Event
of Default:
As
defined in the applicable Servicing Agreement.
Excess
Overcollateralized Amount:
With
respect to any Distribution Date and any Group of Certificates, the excess,
if
any, of (a) the Overcollateralized Amount for such Group of Certificates on
such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Group of Certificates on such Distribution Date.
Excess
Reserve Fund Account:
The
separate Eligible Account created and maintained by the Securities Administrator
pursuant to Sections 3.01(a) in the name of the Securities Administrator as
paying agent for the benefit of the Regular Certificateholders and designated
“Xxxxx Fargo Bank, National Association, as paying agent, in trust for
registered holders of GSAA Home Equity Trust 2007-5, Asset-Backed Certificates,
Series 2007-5.” Funds in the Excess Reserve Fund Account shall be allocated by
Group and held in trust for the Regular Certificateholders for the uses and
purposes set forth in this Agreement. Amounts on deposit in the Excess Reserve
Fund Account shall not be invested.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exchange
Act Filing Obligation:
The
obligations of the Master Servicer under Section 9.04 and Article XIII (except
Section 13.07) with respect to notice and information to be provided to the
Depositor.
Exchange
Act Reports:
Any
reports on Form 10-D, Form 8-K and Form 10-K required to be filed by the
Depositor with respect to the Trust Fund under the Exchange Act.
Expense
Fee Rate:
As to
each Mortgage Loan, a per
annum
rate
equal to the sum of the Servicing Fee Rate, the Administrative Fee Rate and,
if
set forth on the Mortgage Loan Schedule, the applicable Primary Mortgage
Insurance Policy premium rate.
Expense
Fees:
As to
each Mortgage Loan, the fees calculated by reference to the Expense Fee
Rate.
Extra
Principal Distribution Amount:
As of
any Distribution Date for either Group of Certificates, the lesser of (x) the
related Total Monthly Excess Spread for such Group and that Distribution Date
and (y) the related Overcollateralization Deficiency for such Group and that
Distribution Date.
Fair
Market Value Excess:
With
respect to any Mortgage Loan and the related property, an amount equal to the
excess, if any, of the amount in clause (2) of the definition of Termination
Price over the sum of the amount in clause (1) of the definition of Termination
Price.
45
Xxxxxx
Xxx:
The
Federal National Mortgage Association, and its successors in
interest.
Final
Scheduled Distribution Date:
The
Final Scheduled Distribution Date for each Class of Certificates (other than
the
Residual Certificates) is the Distribution Date occurring in May 2037. The
Final
Scheduled Distribution Date for each Class of Group I Residual Certificates
is
the Distribution Date occurring in March 2047. The Final Scheduled Distribution
Date for each Class of Group II Residual Certificates is the Distribution Date
occurring in April 2047.
Fitch:
Fitch,
Inc.
Fixed
Rate Certificates:
As
specified in the Preliminary Statement.
Form
8-K Disclosure Information:
As defined in Section 13.02.
Freddie
Mac:
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, and its successors in interest.
Goldman
Conduit:
Xxxxxxx
Xxxxx Residential Mortgage Conduit Program.
Goldman
Conduit Mortgage Loans:
The
Mortgage Loans acquired by the Purchaser pursuant to the applicable Goldman
Conduit Sale Agreements.
Goldman
Conduit Sale Agreements:
The
Master Loan Purchase Agreements, between various mortgage loan sellers and
GSMC,
dated as of their respective dates, as modified by the related Assignment
Agreements.
GreenPoint:
GreenPoint Mortgage Funding, Inc., a New York corporation, and its successors
in
interest.
GreenPoint
Mortgage Loans:
The
Mortgage Loans acquired by the Purchaser pursuant to the GreenPoint Sale
Agreement.
GreenPoint
Sale Agreement:
Amended
and Restated Master Mortgage Loan Purchase Agreement, dated as of November
1,
2005, between GreenPoint and GSMC, as modified by the related Assignment
Agreement.
GreenPoint
Servicing Agreement: The
Amended and Restated Servicing Agreement, dated as of November 1, 2005, between
GreenPoint and GSMC, as modified by the related Assignment
Agreements.
Group:
Each
group of Certificates or Mortgage Loans, as applicable. For the avoidance of
doubt, the Group I Certificates relate to the Group I Mortgage Loans and the
Group II Certificates relate solely to the Group II Mortgage Loans.
46
Group
I Applied Realized Loss Amount:
With
respect to any Distribution Date and the Group I Mortgage Loans, the amount,
if
any, by which the aggregate Class Certificate Balance of the Group I Principal
Certificates after distributions of principal on such Distribution Date exceeds
the aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date.
Group
I Certificates:
As
specified in the Preliminary Statement.
Group
I Forty-Year Trigger Event:
With
respect to the 241st Distribution Date or any Distribution Date thereafter,
the
circumstances in which (i) the aggregate stated principal balance of the Group
I
Mortgage Loans with original amortization terms of 40 years and maturing in
40
years, exceeds (ii) the Overcollateralized Amount allocated to such group for
such Distribution Date.
Group
I Interest Remittance Amount:
With
respect to any Distribution Date, that portion of Available Funds attributable
to interest relating to the Group I Mortgage Loans.
Group
I Lower-Tier Principal Amount:
As
described in the Preliminary Statement.
Group
I Lower-Tier Regular Interest:
As
described in the Preliminary Statement.
Group
I Lower-Tier REMIC:
As
described in the Preliminary Statement.
Group
I Mortgage Loan:
An
individual Group I Mortgage Loan which is the subject of a Sale Agreement and
a
Servicing Agreement, each Group I Mortgage Loan originally sold and subject
to
any Sale Agreement being identified on the Group I Mortgage Loan Schedule,
which
Group I Mortgage Loan includes without limitation the Mortgage File, the
Servicing File, the Monthly Payments, Principal Prepayments, Prepayment
Premiums, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO
Disposition proceeds and all other rights, benefits, proceeds and obligations
arising from or in connection with such Group I Mortgage Loan.
Group
I Principal Certificates:
As
specified in the Preliminary Statement.
Group
I Principal Distribution Amount:
For any
Distribution Date, the sum of (i) the Basic Principal Distribution Amount with
respect to the Group I Mortgage Loans for such Distribution Date and (ii) the
Extra Principal Distribution Amount with respect to the Group I Mortgage Loans
for such Distribution Date.
Group
I Residual Certificates:
As
specified in the Preliminary Statement.
Group
I Senior Specified Enhancement Percentage:
As of
any date of determination, 13.10%.
Group
I Sequential Trigger Event:
An
event which occurs, if (x) on any Distribution Date before the 37th Distribution
Date the aggregate amount of Realized Losses incurred on the Group I Mortgage
Loans since the cut-off date through the last day of the related Prepayment
Period divided by the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the cut-off date exceeds 0.550%, or (y) on any Distribution Date,
on
or after the 37th Distribution Date, a Group I Trigger Event is in
effect.
47
Group
I Stepdown Date:
The
earlier to occur of (a) the date on which the aggregate Class Certificate
Balance of the Class 1A Certificates has been reduced to zero and (b) the later
to occur of (i) the Distribution Date in May 2010 and (ii) the first
Distribution Date following the Distribution Date on which the Senior
Enhancement Percentage for the Class 1A Certificates is greater than or equal
to
the Group I Senior Specified Enhancement Percentage for that Distribution Date,
after giving effect to the distribution on such Distribution Date.
Group
I Subordinated Certificates:
As
specified in the Preliminary Statement.
Group
I Subsequent Recoveries:
Amounts
received with respect to any Liquidated Mortgage Loan which is a Group I
Mortgage Loan after it has become a Liquidated Mortgage Loan.
Group
I Trigger Event:
With
respect to any Distribution Date, the circumstances in which (i) the 60 Day+
Rolling Average for the Group I Mortgage Loans equals or exceeds 50.00% of
the
prior period's Senior Enhancement Percentage for the Class 1A Certificates
for
the Group I Mortgage Loans (the 60 Day+ Rolling Average will equal the rolling
3
month average percentage of Group I Mortgage Loans that are sixty (60) or more
days delinquent, including Group I Mortgage Loans in foreclosure, all REO
Property relating to the Group I Mortgage Loans and Group I Mortgage Loans
where
the Mortgagor has filed for bankruptcy) or (ii) the aggregate amount of Realized
Losses incurred on the Group I Mortgage Loans since the Cut-off Date through
the
last day of the related Principal Prepayment Period divided by the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the Cut-off Date
exceeds the applicable percentages described below with respect to such
Distribution Date:
|
Distribution
Date Occurring In
|
Loss
Percentage
|
|
May
2009 - April 2010
|
0.250%
for the first month, plus an additional 1/12th of 0.300% for each
month
thereafter (e.g., approximately 0.275% in June 2009)
|
|
May
2010 - April 2011
|
0.550%
for the first month, plus an additional 1/12th of 0.400% for each
month
thereafter (e.g., approximately 0.583% in June 2010)
|
|
May
2011 - April 2012
|
0.950%
for the first month, plus an additional 1/12th of 0.450% for each
month
thereafter (e.g., approximately 0.988% in June 2011)
|
|
May
2012 - April 2013
|
1.400%
for the first month, plus an additional 1/12th of 0.200% for each
month
thereafter (e.g., 1.417% in June 2012)
|
|
May
2013 and thereafter
|
1.600%
|
48
Group
I Upper-Tier Regular Interest:
As
described in the Preliminary Statement.
Group
I WAC Cap:
With
respect to the Group I Mortgage Loans as of any Distribution Date, a
per
annum
rate
equal to the product of (A) the weighted average of the Adjusted Net Mortgage
Interest Rates then in effect on the beginning of the related Due Period on
the
Group I Mortgage Loans, and (B) 30 divided by the actual number of days in
the
related Interest Accrual Period, in the case of the Class 1AV1 Certificates,
and
30 divided by 360, in the case of the Fixed Rate Certificates.
Group
II Applied Realized Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which the aggregate
Class Certificate Balance of the Group II Principal Certificates after
distributions of principal on such Distribution Date exceeds the aggregate
Stated Principal Balance of the Group II Mortgage Loans for such Distribution
Date.
Group
II Certificates:
As
specified in the Preliminary Statement.
Group
II Forty-Year Trigger Event:
With
respect to the 241st Distribution Date or any Distribution Date thereafter,
the
circumstances in which (i) the aggregate stated principal balance of the Group
II Mortgage Loans with original amortization terms of 40 years and maturing
in
40 years, exceeds (ii) the Overcollateralized Amount allocated to such group
for
such Distribution Date.
Group
II Interest Remittance Amount:
With
respect to any Distribution Date and the Group II Mortgage Loans, that portion
of Available Funds attributable to interest relating to the Group II Mortgage
Loans, net of any Net Swap Payment Amount made with respect to such Distribution
Date.
Group
II Lower-Tier Principal Amount:
As
described in the Preliminary Statement.
Group
II Lower-Tier Regular Interest:
As
described in the Preliminary Statement.
Group
II Lower-Tier REMIC:
As
described in the Preliminary Statement.
Group
II Mortgage Loan:
An
individual Group II Mortgage Loan which is the subject of a Sale Agreement
and a
Servicing Agreement, each Group II Mortgage Loan originally sold and subject
to
any Sale Agreement being identified on the Group II Mortgage Loan Schedule,
which Group II Mortgage Loan includes without limitation the Mortgage File,
the
Servicing File, the Monthly Payments, Principal Prepayments, Prepayment
Premiums, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO
Disposition proceeds and all other rights, benefits, proceeds and obligations
arising from or in connection with such Group II Mortgage Loan.
Group
II Principal Certificates:
As
specified in the Preliminary Statement.
49
Group
II Principal Distribution Amount:
For any
Distribution Date, the sum of (i) the Basic Principal Distribution Amount with
respect to the Group II Mortgage Loans for such Distribution Date and (ii)
the
Extra Principal Distribution Amount with respect to the Group II Mortgage Loans
for such Distribution Date.
Group
II Residual Certificates:
As
specified in the Preliminary Statement.
Group
II Senior Specified Enhancement Percentage:
As of
any date of determination, 15.30%.
Group
II Sequential Trigger Event:
An
event which occurs, if (x) on any Distribution Date before the 37th Distribution
Date the aggregate amount of Realized Losses incurred on the Group II Mortgage
Loans since the cut-off date through the last day of the related Prepayment
Period divided by the aggregate Stated Principal Balance of the Group II
Mortgage Loans as of the cut-off date exceeds 0.650%, or (y) on any Distribution
Date on or after the 37th Distribution Date, a Group II Trigger Event is in
effect.
Group
II Stepdown Date:
The
earlier to occur of (a) the date on which the aggregate Class Certificate
Balance of the Class 2A Certificates has been reduced to zero and (b) the later
to occur of (i) the Distribution Date in May 2010 and (ii) the first
Distribution Date following the Distribution Date on which the Senior
Enhancement Percentage for the Group II Certificates is greater than or equal
to
the Group II Senior Specified Enhancement Percentage after giving effect to
the
distribution on such Distribution Date.
Group
II Subordinated Certificates:
As
specified in the Preliminary Statement.
Group
II Subsequent Recoveries:
Amounts
received with respect to any Liquidated Mortgage Loan which is a Group II
Mortgage Loan after it has become a Liquidated Mortgage Loan.
Group
II Trigger Event:
With
respect to any Distribution Date, the circumstances in which (i) the 60 Day+
Rolling Average for the Group II Mortgage Loans equals or exceeds 40% of the
prior period's Senior Enhancement Percentage for the Class 2A Certificates
for
the Group II Mortgage Loans (the 60 Day+ Rolling Average will equal the rolling
3 month average percentage of Group II Mortgage Loans that are sixty (60) or
more days delinquent, including Group II Mortgage Loans in foreclosure, all
REO
Property relating to the Group II Mortgage Loans and Group II Mortgage Loans
where the Mortgagor has filed for bankruptcy) or (ii) the aggregate amount
of
Realized Losses incurred on the Group II Mortgage Loans since the Cut-off Date
through the last day of the related Principal Prepayment Period divided by
the
aggregate Stated Principal Balance of the Group II Mortgage Loans as of the
Cut-off Date exceeds the applicable percentages described below with respect
to
such Distribution Date:
|
Distribution
Date Occurring In
|
Loss
Percentage
|
|
May
2009 - April 2010
|
0.250%
for the first month, plus an additional 1/12th of 0.400% for each
month
thereafter (e.g., approximately 0.283% in June
2009)
|
50
|
May
2010 - April 2011
|
0.650%
for the first month, plus an additional 1/12th of 0.450% for each
month
thereafter (e.g., approximately 0.688% in June 2010)
|
|
May
2011 - April 2012
|
1.100%
for the first month, plus an additional 1/12th of 0.450% for each
month
thereafter (e.g., approximately 1.138% in June 2011)
|
|
May
2012 - April 2013
|
1.550%
for the first month, plus an additional 1/12th of 0.300% for each
month
thereafter (e.g., 1.575% in June 2012)
|
|
May
2013 and thereafter
|
1.850%
|
Group
II Upper-Tier Regular Interest:
As
described in the Preliminary Statement.
Group
II WAC Cap:
With
respect to the Group II Mortgage Loans as of any Distribution Date, a
per
annum
rate
equal to the product of (x) the sum of (A) the weighted average of the Adjusted
Net Mortgage Interest Rates then in effect on the beginning of the related
Due
Period on the Group II Mortgage Loans, and (B) Net Swap Receipts, if any, less
Net Swap Payment Amounts, if any, divided by the Stated Principal Balance of
the
Group II Mortgage Loans multiplied by 12 and (y) 30 divided by the actual number
of days in the related Interest Accrual Period.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Accrual Period:
With
respect to any Distribution Date, (i) with respect to the LIBOR Certificates,
the period commencing on the immediately preceding Distribution Date (or
commencing on the Closing Date in the case of the first Distribution Date)
and
ending on the day immediately preceding the current Distribution Date and (ii)
with respect to the Fixed Rate Certificates, the calendar month immediately
preceding the month in which such Distribution Date occurs. For purposes of
computing interest accruals on each Class of LIBOR Certificates, each Interest
Accrual Period has the actual number of days in such period and each year is
assumed to have 360 days. For purposes of computing interest accruals on the
Fixed Rate Certificates, each Interest Accrual Period has 30 days in such period
and each year is assumed to have 360 days.
Interest
Rate Swap Agreement:
Collectively, the ISDA Master Agreement, the Schedule thereto, each dated as
of
April 30, 2007, by and between the Swap Provider and Xxxxx Fargo Bank,
National Association, not in its individual capacity but solely as Securities
Administrator on behalf of the Supplemental Interest Trust with respect to
the
GSAA Home Equity Trust 2007-5 Asset-Backed Certificates, Series 2007-5 and
the
Confirmation (Reference Number NUUS704730) governed thereunder, dated
April 23, 2007, assigned to the Swap Provider and Xxxxx Fargo Bank,
National Association, not in its individual capacity but solely as Securities
Administrator on behalf of the Supplemental Interest Trust with respect to
the
GSAA Home Equity Trust 2007-5 Asset-Backed Certificates, Series 2007-5, a copy
of each of which is attached hereto as Exhibit Z.
51
Investment
Account:
As
defined in Section 3.02(a).
Item
1119 Party:
The
Depositor, the Master Servicer, the Trustee, any Servicer, any subservicer,
any
originator identified in the Prospectus Supplement and any Swap
Provider.
LIBOR:
means,
with respect to any LIBOR Determination Date, the London interbank offered
rate
for one-month United States dollar deposits which appears on the Bloomberg
Terminal as of 11:00 a.m., London time, on that date. If the rate does not
appear on the Bloomberg Terminal, 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 prime banks in the London interbank market. The Securities Administrator
will
be required to request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two quotations are
provided, the rate for that day will be the arithmetic mean of the quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16%). 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 (after consultation with the Depositor), at
approximately 11:00 a.m. (New York City time) on that day for loans in
United States dollars to leading European banks. means, with respect to any
LIBOR Determination Date, the London interbank offered rate for one-month United
States dollar deposits which appears on the Bloomberg Terminal as of
11:00 a.m., London time, on that date. If the rate does not appear on the
Bloomberg Terminal, 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 prime banks
in the London interbank market. The establishment of LIBOR by the Securities
Administrator and the Securities Administrator’s subsequent calculations based
thereon, in the absence of manifest error, shall be final and binding. Except
as
otherwise set forth herein, absent manifest error, the Securities Administrator
may conclusively rely on quotations of LIBOR as such quotations appear on the
Bloomberg Terminal. The Securities Administrator will be required to request
the
principal London office of each of the Reference Banks to provide a quotation
of
its rate. If at least two quotations are provided, the rate for that day will
be
the arithmetic mean of the quotations (rounded upwards if necessary to the
nearest whole multiple of 1/16%). 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 (after
consultation with the Depositor), at approximately 11:00 a.m. (New York
City time) on that day for loans in United States dollars to leading European
banks.
LIBOR
Certificates:
As
specified in the Preliminary Statement.
LIBOR
Determination Date:
With
respect to any Interest Accrual Period for the LIBOR Certificates, the second
London Business Day preceding the commencement of such Interest Accrual
Period.
52
Liquidated
Mortgage Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan (including any
REO
Property) which was liquidated in the Principal Prepayment Period preceding
the
month of such Distribution Date and as to which the applicable Servicer has
certified that it has received all amounts it expects to receive in connection
with the liquidation of such Mortgage Loan including the final disposition
of an
REO Property.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage Loan,
including any Subsequent Recoveries.
Lockout
Calculation Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the aggregate Class Certificate Balance of the Class
1AF6,
Class 1AF7A and Class 1AF7B Certificates and the denominator of which is the
aggregate Class Certificate Balance of all of the Class 1A Certificates, in
each
case before giving effect to distribution of principal on that Distribution
Date.
Lockout
Certificates:
As
specified in the Preliminary Statement.
Lockout
Distribution Amount:
With
respect to any Distribution Date, an amount equal to the product of (i) the
applicable Lockout Calculation Percentage for that Distribution Date, (ii)
the
Lockout Percentage for that Distribution Date and (iii) the Class 1A Principal
Distribution Amount for that Distribution Date. In no event shall the Lockout
Distribution Amount exceed the lesser of the aggregate outstanding Class
Certificate Balance of the Class 1AF6, Class 1AF7A and Class 1AF7B Certificates
or the Class 1A Principal Distribution Amount for the applicable Distribution
Date.
Lockout
Percentage:
For any
Distribution Date, the following:
|
Distribution
Date (Months)
|
Lockout
Percentage
|
|
1
to 36
|
0%
|
|
37
to 60
|
45%
|
|
61
to 72
|
80%
|
|
73
to 84
|
100%
|
|
85
and thereafter
|
300%
|
London
Business Day:
Any day
on which dealings in deposits of United States dollars are transacted in the
London interbank market.
Majority
Class 1X Certificateholder:
The
Holder or Holders of a majority of the Percentage Interests in the Class 1X
Certificates.
Majority
Class 2X Certificateholder:
The
Holder or Holders of a majority of the Percentage Interests in the Class 2X
Certificates.
53
Master
Servicer:
Wells
Fargo, and its successors in interest, and if a successor master servicer is
appointed hereunder, such successor.
Master
Servicer Event of Default:
As
defined in Section 9.04.
Master
Servicer Float Period:
As to
any Distribution Date and each Mortgage Loan, the period commencing on the
related Remittance Date immediately preceding such Distribution Date and ending
on such Distribution Date.
Master
Servicing Fee Rate:
0.00%.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
Monthly
Advance:
As
defined in the applicable Servicing Agreement.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Monthly
Statement:
The
statement made available to the Certificateholders pursuant to Section
4.03.
Moody’s:
Xxxxx’x
Investors Service, Inc. If Xxxxx’x is designated as a Rating Agency in the
Preliminary Statement, for purposes of Section 12.05(b) the address for notices
to Moody’s shall be Xxxxx’x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Residential Mortgage Pass-Through Group, or such
other address as Moody’s may hereafter furnish to the Depositor and the
Servicer.
Mortgage:
The
mortgage, deed of trust or other instrument identified on the Mortgage Loan
Schedule as securing a Mortgage Note.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan contained in either the Servicing
File or Custodial File.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note with respect to each Mortgage
Loan.
Mortgage
Loan:
A Group
I Mortgage Loan or Group II Mortgage Loan, as applicable.
Mortgage
Loan Documents:
The
mortgage loan documents pertaining to each Mortgage Loan.
54
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans annexed hereto as Schedule I (with respect to the
Group I Mortgage Loans) and Schedule II (with respect to the Group II Mortgage
Loans) (which shall be delivered to the Custodians in an electronic format
acceptable to the Custodians), such schedule setting forth the following
information with respect to each Mortgage Loan: (1) Responsible Party’s Mortgage
Loan number; (2) the address, city, state and zip code of the Mortgaged
Property; (3) a code indicating whether the Mortgagor is self-employed; (4)
a
code indicating whether the Mortgaged Property is owner-occupied, investment
property or a second home; (5) a code indicating whether the Mortgaged Property
is a single family residence, two family residence, three-family residence,
four
family residence, condominium, manufactured housing or planned unit development;
(6) the purpose of the Mortgage Loan; (7) the type of Mortgage Loan; (8) the
Mortgage Interest Rate at origination; (9) the current Mortgage Interest Rate;
(10) the name of the applicable Servicer; (11) the applicable Servicing Fee
Rate; (12) the current Monthly Payment; (13) the original term to maturity;
(14)
the remaining term to maturity; (15) the principal balance of the Mortgage
Loan
as of the Cut-off Date after deduction of payments of principal due on or before
the Cut-off Date whether or not collected; (16) the LTV at origination and
if
the Mortgage Loan has a second lien, combined LTV at origination; (17) the
actual principal balance of the Mortgage Loan as of the Cut-off Date; (18)
social security number of the Mortgagor; (19) a code indicating whether the
Mortgage Loan had a second lien at origination; (20) if the Mortgage Loan has
a
second lien, combined loan balance as of the Cut-off Date; (21) a code
indicating whether the Mortgaged Property is a leasehold estate; (22) the due
date of the Mortgage Loan; (23) whether the Mortgage Loan is insured by a
Mortgage Insurance Policy and the name of the insurer; (24) the certificate
number of the Mortgage Insurance Policy; (25) if applicable, the amount of
coverage of the Primary Mortgage Insurance Policy, if it is a lender-paid
Primary Mortgage Insurance Policy or a Primary Mortgage Insurance Policy paid
for on behalf of the Trust, the premium rate; (26) if applicable, the premium
tax information for each mortgage loan covered by the Primary Mortgage Insurance
Policy; (27) the type of appraisal; (28) a code indicating whether the Mortgage
Loan is a MERS Loan; (29) documentation type (including asset and income type);
(30) first payment date; (31) the schedule of the payment delinquencies in
the
prior 12 months; (32) FICO score; (33) the Mortgagor’s name; (34) the stated
maturity date; (35) the original principal amount of the Mortgage Loan; and
(36)
the name of the applicable Custodian.
Mortgaged
Property:
The
real property (or leasehold estate, if applicable) identified on the Mortgage
Loan Schedule as securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor:
The
obligor on a Mortgage Note.
NatCity:
National City Mortgage Co., an Ohio corporation, and its successors in
interest.
NatCity
Mortgage Loans:
The
Mortgage Loans acquired by the Purchaser pursuant to the NatCity Sale and
Servicing Agreement.
NatCity
Sale and Servicing Agreement:
The
Second Amended and Restated Flow Seller’s Warranties and Servicing Agreement,
dated as of January 1, 2006, between NatCity and GSMC, as modified by the
applicable Assignment Agreements.
55
Net
Monthly Excess Cash Flow:
For any
Distribution Date the amount remaining for distribution pursuant to subsection
4.01(a)(iii) or 4.02(a)(iii) (before giving effect to distributions pursuant
to
such subsection), as applicable.
Net
Prepayment Interest Shortfall:
For any
Distribution Date, the amount by which the sum of the Prepayment Interest
Shortfalls exceeds the sum of the Compensating Interest payments made on such
Distribution Date.
Net
Swap Payment Amount:
With
respect to any Distribution Date, the Fixed Amount (as defined in the Interest
Rate Swap Agreement) payable by the Supplemental Interest Trust to the Swap
Provider, pursuant to the applicable Section 4.02(a), on the related Fixed
Rate
Payer Payment Date (as defined in the Interest Rate Swap
Agreement).
Net
Swap Receipt Amount:
With
respect to any Distribution Date, the Floating Amount (as defined in the
Interest Rate Swap Agreement) payable by the Swap Provider to the Supplemental
Interest Trust on the related Floating Rate Payer Payment Date (as defined
in
the Interest Rate Swap Agreement).
NIM
Issuer:
The
entity established as the issuer of the NIM Securities.
NIM
Securities:
Any
debt securities secured or otherwise backed by some or all of the Class 1P,
Class 2P, Class 1X and Class 2X Certificates.
NIM
Trustee:
The
trustee for the NIM Securities.
NMWHFIT:
A
“Non-Mortgage Widely Held Fixed Investment Trust” as that term is defined in
Treasury Regulations section 1.671-5(b)(12) or successor
provisions.
Non
Permitted Transferee:
As
defined in Section 8.12(e).
Nonrecoverable
Monthly Advance:
Any
Monthly Advance previously made or proposed to be made in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment of the Servicer
(in accordance with the related Servicing Standard set forth in the related
Servicing Agreement), the Master Servicer or any successor Master Servicer
including the Trustee, as applicable, will not or, in the case of a proposed
Monthly Advance, would not be ultimately recoverable from related late payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided herein.
Nonrecoverable
Servicing Advance:
Any
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan or REO Property, which, in the good faith business judgment of
the
Servicer (in accordance with the related Servicing Standard set forth in the
related Servicing Agreement), the Master Servicer or any successor Master
Servicer including the Trustee, as applicable, will not or, in the case of
a
proposed Servicing Advance, would not, be ultimately recoverable from related
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise.
56
Notice
of Final Distribution:
The
notice to be provided pursuant to Section 11.03 to the effect that final
distribution on any of the Certificates shall be made only upon presentation
and
surrender thereof.
Offered
Certificates:
As
specified in the Preliminary Statement.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or the President or a Vice President or an Assistant Vice President and
by
the Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of any Servicer or any Responsible Party, and delivered to the
Trustee and the Securities Administrator, as required by any Servicing Agreement
or Sale Agreement or, in the case of any other Person, signed by an authorized
officer of such Person.
Opinion
of Counsel:
A
written opinion of counsel, who may be in house counsel for the applicable
Servicer, reasonably acceptable to the Trustee and/or the Securities
Administrator, as applicable (and/or such other Persons as may be set forth
herein); provided,
that
any Opinion of Counsel relating to (a) qualification of any Trust REMIC or
(b)
compliance with the REMIC Provisions, must be (unless otherwise stated in such
Opinion of Counsel) an opinion of counsel who (i) is in fact independent of
the
applicable Servicer or the Master Servicer of the Mortgage Loans, (ii) does
not
have any material direct or indirect financial interest in the applicable
Servicer or the Master Servicer of the Mortgage Loans or in an affiliate of
either and (iii) is not connected with the applicable Servicer or the Master
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Optional
Termination Date:
The
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans of any Group, as of the last day of the related Due Period,
is
equal to 10.00% or less of the Cut-off Date Pool Principal Balance of such
Group.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Securities Administrator or delivered to the
Securities Administrator for cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Securities Administrator pursuant to this
Agreement.
Outstanding
Mortgage Loan:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero
which was not the subject of a Principal Prepayment in Full prior to such Due
Date and which did not become a Liquidated Mortgage Loan prior to such Due
Date.
Overcollateralized
Amount:
As of
any Distribution Date and with respect to each Group of Certificates, the
excess, if any, of (a) the aggregate Stated Principal Balance of the Mortgage
Loans of the related Group for such Distribution Date over (b) the aggregate
of
the Class Certificate Balances of the Principal Certificates of such Group
as of
such Distribution Date (after giving effect to the payment of the Principal
Remittance Amount on such Certificates on such Distribution Date).
57
Overcollateralization
Deficiency:
With
respect to any Distribution Date and each Group of Certificates, the excess,
if
any, of (a) the Specified Overcollateralized Amount for that Group of
Certificates applicable to such Distribution Date over (b) the
Overcollateralized Amount for such Group of Certificates applicable to such
Distribution Date.
Overcollateralization
Floor:
With
respect to any Distribution Date and each Group of Certificates, 0.50% of the
aggregate Stated Principal Balance of the Mortgage Loans of the related Group
as
of the Cut-off Date.
Overcollateralization
Reduction Amount:
With
respect to any Distribution Date and each Group of Mortgage Loans, an amount
equal to the lesser of (a) the Excess Overcollateralized Amount for the related
Group of Certificates and (b) the Net Monthly Excess Cash Flow for such Group
of
Mortgage Loans.
Ownership
Interest:
As to
any Residual Certificate, any ownership interest in such Certificate including
any interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
Par
Value:
With
respect to any Group of Mortgage Loans and the related Group of Certificates,
an
amount equal to the greater of (a) the sum of (1) 100% of the unpaid principal
balance of the Mortgage Loans of such Group (other than Mortgage Loans related
to REO Properties), (2) interest accrued and unpaid on Mortgage Loans of such
Group, (3) any unreimbursed P&I Advances relating to such Group, and such
Group’s allocable share of any fees and expenses of the Master Servicer, the
Securities Administrator and the Trustee, (4) with respect to any REO Property
relating to such Group of Mortgage Loans, the lesser of (x) the appraised value
of each REO Property, as determined by the higher of two appraisals completed
by
two independent appraisers selected by the Master Servicer or its designee,
and
(y) the unpaid principal balance of each Mortgage Loan of such Group related
to
any REO Property and (5) solely with respect to the Group II Mortgage Loans,
any
Swap Termination Payment owed to the Swap Provider, and (b) the sum of (1)
the
aggregate unpaid Class Certificate Balance of each related Class of Certificates
then outstanding, (2) interest accrued and unpaid on such Certificates, (3)
any
unreimbursed P&I Advances relating to such Group, and such Group’s allocable
share of any fees and expenses of the Master Servicer, the Securities
Administrator and the Trustee allocated to such Group of Mortgage Loans and
(4)
solely with respect to the Group II Mortgage Loans, any Swap Termination Payment
other than a Defaulted Swap Termination Payment owed to the Swap
Provider.
Pass-Through
Rate:
For
each Class of Certificates and each Lower-Tier Regular Interest, the
per
annum
rate set
forth or calculated in the manner described in the Preliminary
Statement.
Percentage
Interest:
As to
any Certificate, the percentage interest evidenced thereby in distributions
required to be made on the related Class, such percentage interest being set
forth on the face thereof or equal to the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of the same Class.
58
Permitted
Investments:
Any one
or more of the following obligations or securities acquired at a purchase price
of not greater than par, regardless of whether issued by the Servicer, the
Trustee, the Securities Administrator or any of their respective
Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than ninety (90) days and,
in
the case of bankers’ acceptances, shall in no event have an original maturity of
more than 365 days or a remaining maturity of more than thirty (30) days)
denominated in United States dollars and issued by any Depository Institution
and rated F1+ by Fitch, P-1 by Xxxxx’x and A-1+ by S&P;
(iii) repurchase
obligations with respect to any security described in clause (i) above entered
into with a Depository Institution (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by each Rating Agency that rates such securities in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than thirty (30) days after the date of acquisition thereof) that is rated
by
each Rating Agency that rates such securities in its highest short-term
unsecured debt rating available at the time of such investment;
(vi) units
of
money market funds, including money market funds advised by the Depositor,
the
Securities Administrator or the Trustee or an Affiliate thereof, that have
been
rated “Aaa” by Xxxxx’x, “AAAm” or “AAAm-G” by Standard & Poor’s and, if
rated by Fitch, at least “AA” by Fitch; and
(vii) if
previously confirmed in writing to the Securities Administrator, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing “Aaa” or “AAA” rated securities;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive (a)
only interest with respect to the obligations underlying such instrument or
(b)
both principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
Permitted
Transferee:
Any
Person other than (i) the United States, any State or political subdivision
thereof, or any agency or instrumentality of any of the foregoing, (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers’
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511
of
the Code on unrelated business taxable income) on any excess inclusions (as
defined in Section 860E(c)(1) of the Code) with respect to any Residual
Certificate, (iv) rural electric and telephone cooperatives described in Section
1381(a)(2)(C) of the Code, (v) a Person that is not a U.S. Person or a U.S.
Person with respect to whom income from a Residual Certificate is attributable
to a foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of such Person or any other U.S. Person, (vi)
an
“electing large partnership” within the meaning of Section 775 of the Code and
(vii) any other Person so designated by the Depositor based upon an Opinion
of
Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to
such Person may cause any Trust REMIC to fail to qualify as a REMIC at any
time
that the Certificates are outstanding. The terms “United States,” “State” and
“international organization” shall have the meanings set forth in Section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with
the exception of the Freddie Mac, a majority of its board of directors is not
selected by such government unit.
59
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificates:
As
specified in the Preliminary Statement.
P&I
Advances:
Advances made by a servicer or the Master Servicer (including the Trustee as
successor master servicer and any other successor master servicer) with respect
to delinquent payments of interest and principal on the Mortgage Loans, less
the
applicable servicing fee or the master servicing fee, as
applicable.
Pool
Stated Principal Balance:
As to
any Distribution Date, the aggregate of the Stated Principal Balances of the
Mortgage Loans for such Distribution Date that were Outstanding Mortgage Loans
on the Due Date in the related Due Period.
Prepayment
Interest Shortfall:
With
respect to any Remittance Date, the sum of, for each Mortgage Loan that was
during the related Principal Prepayment Period the subject of a Principal
Prepayment that was applied by the Servicer to reduce the outstanding principal
balance of such Mortgage Loan on a date preceding the Due Date in the succeeding
Principal Prepayment Period, an amount equal to the product of (a) the Mortgage
Interest Rate net of the applicable Servicing Fee Rate for such Mortgage Loan,
(b) the amount of the Principal Prepayment for such Mortgage Loan, (c) 1/360
and
(d) the number of days commencing on the date on which such Principal Prepayment
was applied and ending on the last day of the related Principal Prepayment
Period.
Prepayment
Premium:
Any
prepayment premium, penalty or charge, if any, required under the terms of
the
related Mortgage Note to be paid in connection with a Principal Prepayment,
to
the extent permitted by law.
60
Primary
Mortgage Insurance Policy:
Not
applicable for this transaction.
Principal
Certificates:
As
specified in the Preliminary Statement.
Principal
Distribution Amount:
The
Group I Principal Distribution Amount and the Group II Principal Distribution
Amount, as applicable.
Principal
Prepayment:
Any
full or partial payment or other recovery of principal on a Mortgage Loan
(including upon liquidation of a Mortgage Loan) which is received in advance
of
its scheduled Due Date, including any Prepayment Premium, and which is not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of
prepayment.
Principal
Prepayment in Full:
Any
Principal Prepayment made by a Mortgagor of the entire principal balance of
a
Mortgage Loan.
Principal
Prepayment Period:
With
respect to any Distribution Date, the calendar month preceding the month in
which that Distribution Date occurs.
Principal
Remittance Amount:
With
respect to any Distribution Date and each Group of Mortgage Loans, the amount
equal to the sum of the following amounts (without duplication): (i) all
scheduled payments of principal due on the Due Date on the Mortgage Loans in
the
related Due Period and received by the applicable Servicer on or prior to the
related Determination Date, together with any Monthly Advances by the applicable
Servicer in respect thereof; (ii) all net Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds allocable to principal and received during
the
related Principal Prepayment Period; (iii) all Principal Prepayments allocable
to principal and received during the related Principal Prepayment Period; (iv)
all amounts received with respect to such Distribution Date representing the
portion of the purchase price allocable to principal in connection with a
purchase or repurchase of a Deleted Mortgage Loan; (v) principal portion of
all
amounts received with respect to such Distribution Date as a Substitution
Adjustment Amount and received in connection with the substitution of a Mortgage
Loan and (vi) the allocable portion of the proceeds received with respect to
the
termination of the Trust Fund pursuant to Section 11.02 (to the extent such
proceeds relate to principal).
Private
Certificates:
As
specified in the Preliminary Statement.
Prospectus
Supplement:
The
Prospectus Supplement, dated April 27, 2007, relating to the Offered
Certificates.
PTCE:
Prohibited Transaction Class Exemption, issued by the U.S. Department of
Labor.
PUD:
A
planned unit development.
Purchaser:
Xxxxxxx
Xxxxx Mortgage Company, a New York limited partnership, and its successors
in
interest.
61
Rating
Agency:
Each of
the Rating Agencies specified in the Preliminary Statement. If such organization
or a successor is no longer in existence, “Rating Agency” shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall
be
given to the Trustee and the Securities Administrator. References herein to
a
given rating or rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers. For purposes of Section
12.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized
Losses:
With
respect to any date of determination and any Liquidated Mortgage Loan, the
amount, if any, by which (a) the unpaid principal balance of such Liquidated
Mortgage Loan together with accrued and unpaid interest thereon exceeds (b)
the
Liquidation Proceeds with respect thereto net of the expenses incurred by the
Servicer in connection with the liquidation of such Liquidated Mortgage Loan
and
net of any amount of unreimbursed Servicing Advances with respect to such
Liquidated Mortgage Loan.
Record
Date:
With
respect to any Distribution Date, for the Principal Certificates, the close
of
business on the last Business Day of the related Interest Accrual Period;
provided,
however,
that
for any Definitive Certificate issued pursuant to Section 5.02(e), the Record
Date shall be the close of business on the last Business Day of the month
immediately preceding the month in which the related Distribution Date
occurs.
Reference
Bank:
As
defined in Section 4.05.
Regular
Certificates:
As
specified in the Preliminary Statement.
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.
Relief
Act Interest Shortfall:
With
respect to any Distribution Date and any Mortgage Loan, any reduction in the
amount of interest collectible on such Mortgage Loan for the most recently
ended
Due Period as a result of the application of the Servicemembers’ Civil Relief
Act of 1940 or any similar state statutes.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations promulgated
thereunder, as the foregoing may be in effect from time to time as well as
provisions of applicable state laws.
62
Remittance
Date:
With
respect to any Distribution Date, (i) with respect to the Mortgage Loans
serviced by Avelo, Countrywide, GreenPoint and Wachovia the 18th day (or if
such
18th day is not a Business Day, the first Business Day immediately following
such 18th day) of the month in which such Distribution Date occurs and (ii)
with
respect to the Mortgage Loans serviced by NatCity and Xxxxx Fargo, the 18th
day
(or if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day) of the month in which such Distribution Date
occurs.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Replacement
Swap Provider Payment:
As
defined in Section 4.07(c).
Reportable
Event:
As
defined in Section 13.02.
Reporting
Party:
The
Depositor, any Originator, the Master Servicer, any Servicer, any originator
defined in the Prospectus Supplement, any swap or corridor contract
counterparty, any credit enhancement provider described herein and any other
material transaction party (excluding the Trustee and the Custodians) as may
be
mutually agreed between the Depositor and the Master Servicer from time to
time
for the purpose of complying with the requirements of the
Commission.
Reporting
Servicer:
As
defined in Section 13.04.
Reporting
Subcontractor:
With
respect to the Master Servicer or the Securities Administrator, any
Subcontractor determined by such Person pursuant to Section 13.08(b) to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to
the
Subcontractor of such Person and shall not refer to Subcontractors
generally.
Residual
Certificates:
As
specified in the Preliminary Statement.
Responsible
Officer:
When
used with respect to the Securities Administrator or the Master Servicer, any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any associate or any other officer of the Securities
Administrator or the Master Servicer, customarily performing functions similar
to those performed by any of the above designated officers who at such time
shall be officers to whom, with respect to a particular matter, such matter
is
referred because of such officer’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Agreement. When used with respect to the Trustee, any
officer of the Trustee having direct responsibility for the administration
of
this transaction, or to whom corporate trust matters are referred because of
that officer’s knowledge of and familiarity with the particular
subject.
Responsible
Party:
Countrywide, GreenPoint, NatCity and Xxxxx Fargo each in its capacity as seller
under the applicable Sale Agreement. With respect to the Goldman Conduit
Mortgage Loans, the Purchaser.
63
Rule
144A:
Rule
144A under the Securities Act.
Rule
144A Letter:
As
defined in Section 5.02(b).
Sale
Agreement:
Each of
the Countrywide Sale Agreement, the GreenPoint Sale Agreement, the NatCity
Sale
and Servicing Agreement, the Xxxxx Fargo Sale Agreement and the Goldman Conduit
Sale Agreement.
Xxxxxxxx-Xxxxx
Certification:
As
defined in Section 13.06.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Administrator:
Xxxxx
Fargo and its successors in interest, and if a successor securities
administrator is appointed hereunder, such successor.
Senior
Enhancement Percentage:
With
respect to any Distribution Date and each Group of Certificates, the percentage
obtained by dividing (x) the sum of (i) the aggregate Class Certificate Balance
of the Subordinated Certificates of such Group and (ii) the Overcollateralized
Amount for such Group (in each case after taking into account the distributions
of the Principal Distribution Amount for such Distribution Date) by (y) the
aggregate Stated Principal Balance of the Mortgage Loans in the related Group
as
of the first day of the month in which such Distribution Date
occurs.
Senior
Specified Enhancement Percentage:
As of
any date of determination, 13.70%.
Sequential
Trigger Event:
An
event which occurs, if (x) on any Distribution Date before the 37th Distribution
Date the aggregate amount of Realized Losses incurred since the cut-off date
through the last day of the related Prepayment Period divided by the aggregate
scheduled principal balance of the Mortgage Loans as of the cut-off date exceeds
0.55%, or (y) on or after the 37th Distribution Date, a Trigger Event is in
effect.
Servicer:
Each of
Avelo, Countrywide, GreenPoint, NatCity, Wachovia and Xxxxx Fargo, in its
capacity as servicer under the related Servicing Agreement, or any successor
servicer appointed pursuant to such Servicing Agreement.
Servicing
Advances:
As
defined in the related Servicing Agreement.
Servicing
Agreement:
Each of
the Avelo Servicing Agreement, the Countrywide Servicing Agreement, the
GreenPoint Servicing Agreement, the NatCity Sale and Servicing Agreement, the
Wachovia Servicing Agreement and the Xxxxx Fargo Sale and Servicing
Agreement.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as the same may
be amended from time to time.
Servicing
Fee:
As
defined in the related Servicing Agreement.
64
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the per
annum
rate for
such Mortgage Loan specified on the Mortgage Loan Schedule.
Servicing
File:
As
defined in the applicable Servicing Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than each Servicer, the
Master Servicer, the Trustee, the Securities Administrator and any Custodian,
that is performing activities addressed by the Servicing Criteria.
Similar
Law:
As
defined in Section 5.02(b).
Specified
Overcollateralized Amount:
With
respect to each Group of Mortgage Loans and the related Group of certificates,
prior to the Stepdown Date for such Group, an amount equal to (a) with respect
to the Group I Certificates, 1.30% of the aggregate Stated Principal Balance
of
the Group I Mortgage Loans as of the cut-off date or (b) with respect to the
Group II Certificates, 1.10% of the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the cut-off date, as applicable; on and after
the
Stepdown Date for such Group, an amount equal to (a) with respect to the Group
I
Certificates, 2.60% of the aggregate Stated Principal Balance of the Group
I
Mortgage Loans for that Distribution Date or (b) with respect to the Group
II
Certificates, 2.20% of the aggregate Stated Principal Balance of the Group
II
Mortgage Loans for that Distribution Date, as applicable, subject, until the
Class Certificate Balance of each class of Principal Certificates of such Group
has been reduced to zero, to a minimum amount equal to the Overcollateralization
Floor for such Group; provided,
however,
that
if, on any Distribution Date, a Trigger Event with respect to such Group has
occurred, the Specified Overcollateralized Amount for such Group will not be
reduced to the applicable percentage of the then Stated Principal Balance of
the
Mortgage Loans of such Group but instead will remain the same as the prior
period’s Specified Overcollateralized Amount until the Distribution Date on
which a Trigger Event with respect to such Group is no longer occurring. When
the Class Certificate Balance of each Class of Principal Certificates of a
Group
has been reduced to zero, the Specified Overcollateralized Amount for such
Group
will thereafter equal zero.
Standard
& Poor’s or S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. If Standard & Poor’s is designated as a Rating Agency in the
Preliminary Statement, for purposes of Section 12.05(b) the address for notices
to Standard & Poor’s shall be Standard & Poor’s, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group -
GSAA
Home Equity Trust 2007-5, or such other address as Standard & Poor’s may
hereafter furnish to the Depositor and the Servicer.
Startup
Day:
The
Closing Date.
Stated
Principal Balance:
As to
each Mortgage Loan and as of any Determination Date, (i) the principal balance
of the Mortgage Loan at the Cut-off Date after giving effect to payments of
principal due on or before such date (whether or not received), minus (ii)
all
amounts previously remitted to the Securities Administrator with respect to
the
related Mortgage Loan representing payments or recoveries of principal including
advances in respect of scheduled payments of principal. For purposes of any
Distribution Date, the Stated Principal Balance of any Mortgage Loan will give
effect to any scheduled payments of principal received or advanced prior to
the
related Remittance Date and any unscheduled principal payments and other
unscheduled principal collections received during the related Principal
Prepayment Period, and the Stated Principal Balance of any Mortgage Loan that
has prepaid in full or has become a Liquidated Mortgage Loan during the related
Principal Prepayment Period shall be zero.
65
Step
1
Assignment Agreement:
Each of
the (i) Assignment, Assumption and Recognition Agreement, dated as of April
30,
2007, between the Purchaser, Avelo and the Depositor; (ii) Assignment,
Assumption and Recognition Agreement, dated as of April 30, 2007, between the
Purchaser, GreenPoint and the Depositor; (iii) Assignment, Assumption and
Recognition Agreement, dated as of April 30, 2007, between the Purchaser,
NatCity and the Depositor; (iv) Assignment, Assumption and Recognition
Agreement, dated as of April 30, 2007, between the Purchaser, Countrywide and
the Depositor; (v) Assignment, Assumption and Recognition Agreement, dated
as of
April 30, 2007, between the Purchaser, Wachovia and the Depositor; and (vi)
Assignment, Assumption and Recognition Agreement, dated as of April 30, 2007,
between the Purchaser, Xxxxx Fargo and the Depositor.
Step
2
Assignment Agreement:
Each of
the (i) Assignment, Assumption and Recognition Agreement, dated as of April
30,
2007, between the Depositor, the Master Servicer, the Trustee and Avelo; (ii)
Assignment, Assumption and Recognition Agreement, dated as of April 30, 2007,
between the Depositor, the Master Servicer, the Trustee and GreenPoint; (iii)
Assignment, Assumption and Recognition Agreement, dated as of April 30, 2007,
between the Depositor, the Master Servicer, the Trustee and NatCity; (iv)
Assignment, Assumption and Recognition Agreement, dated April 30, 2007, between
the Depositor, the Master Servicer, the Trustee and Countrywide; (v) Assignment,
Assumption and Recognition Agreement, dated as of April 30, 2007, between the
Depositor, the Master Servicer, the Trustee and Wachovia; (vi) Assignment,
Assumption and Recognition Agreement, dated as of April 30, 2007, between the
Depositor, the Master Servicer, the Trustee and Xxxxx Fargo.
Stepdown
Date:
The
Group I Stepdown Date or the Group II Stepdown Date, as applicable.
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 the Master Servicer, any
Servicer, any subservicer or the Securities Administrator, as the case may
be.
Subordinated
Certificates:
As
specified in the Preliminary Statement.
Subsequent
Recoveries:
The
Group I Subsequent Recoveries or the Group II Subsequent Recoveries, as
applicable.
Substitution
Adjustment Amount:
With
respect to any Servicing Agreement or Sale Agreement, as applicable, in which
substitution is permitted, or with respect to a Mortgage Loan substituted by
the
Purchaser, an amount of cash received from the applicable Servicer or the
Purchaser, as applicable, in connection with a substitution for a Deleted
Mortgage Loan.
66
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 4.06 of this Agreement,
consisting of the Interest Rate Swap Agreement, subject to the obligation to
pay
amounts specified in Section 4.06.
Supplemental
Interest Trust Account:
As
defined in Section 4.06.
Swap
Provider:
Xxxxxxx
Xxxxx Mitsui Marine Derivative Products, L.P., a Delaware limited partnership,
and its successors in interest, and any successor swap provider under any
replacement Interest Rate Swap Agreement.
Swap
Termination Payment:
Any
payment payable by the Supplemental Interest Trust or the Swap Provider upon
termination of the Interest Rate Swap Agreement as a result of an Event of
Default (as defined in the Interest Rate Swap Agreement) or a Termination Event
(as defined in the Interest Rate Swap Agreement).
Tax
Matters Person:
The
Holder of the Class 1R, Class 2R, Class 1RC, Class 2RC, Class 1RX and Class
2RX
Certificates is designated as “tax matters person” of the Group I Lower-Tier
REMIC, Group II Lower-Tier REMIC, Group I Middle-Tier REMIC, Group II
Middle-Tier REMIC, Group I Upper-Tier REMIC and Group II Upper-Tier REMIC,
respectively, in the manner provided under Treasury Regulations Section
1.806F-4(d) and Treasury Regulations Section 301.6234(a)(7)-1.
Termination
Price:
With
respect to each Group of Mortgage Loans, the greater of: (1) the sum of (i)
100%
of the unpaid principal balance of each Mortgage Loan of such Group (other
than
in respect of the related REO Property) plus accrued and unpaid interest thereon
at the applicable Mortgage Interest Rate, (ii) the lesser of (x) the appraised
value of any REO Property of such Group as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer at its expense, plus accrued and unpaid interest on the related
mortgage loans at the applicable mortgage rate and (y) the unpaid principal
balance of each Mortgage Loan related to any REO Property of such Group, in
each
case plus accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate; and (iii) solely with respect to the Group II Mortgage Loans,
any
Swap Termination Payment owed to the Swap Provider; and (2) the aggregate fair
market value of each Mortgage Loan of such Group and any related REO Property,
as determined by the highest bid received by the Master Servicer from closed
bids solicited by the Depositor or its designee from at least three recognized
broker/dealers (one of which may be an affiliate of the Depositor) that deal
in
similar assets as of the close of business on the third Business Day preceding
the date upon which a Notice of Final Distribution is furnished to
Certificateholders of the related Group pursuant to Section 11.04, plus accrued
and unpaid interest on the Mortgage Loans of such Group at the applicable
Mortgage Interest Rate.
Total
Monthly Excess Spread:
(1) for
the Group I Mortgage Loans, with respect to any Distribution Date, the excess,
if any, of (x) the interest collected on those mortgage loans by a servicer
on
or prior to the related Determination Date or advanced by such servicer for
the
related Servicer Remittance Date, net of expenses used to determine the Expense
Fee Rate applicable to the Group I Mortgage Loans for such Distribution Date,
over (y) the sum of the interest payable to the Group I Principal Certificates
on such Distribution Date pursuant to Section 4.01(a)(i), and (2) for the Group
II Mortgage Loans, with respect to any Distribution Date, the excess, if any,
of
(x) the interest collected on those Mortgage Loans by a Servicer on or prior
to
the related Determination Date or advanced by such Servicer for the related
Servicer Remittance Date, net of expenses used to determine the Expense Fee
Rate
applicable to the Group II Mortgage Loans for such Distribution Date and plus
Net Swap Receipt Amounts and less Net Swap Payment Amounts for such Distribution
Date, over (y) the sum of the interest payable to the Group II Principal
Certificates on such Distribution Date pursuant to Section 4.02(a)(i); provided
that Net Swap Receipts shall be included in Total Monthly Excess Spread for
the
Group II Mortgage Loans (and correspondingly, in the Extra Principal
Distribution Amount for the Group II Certificates) only to the extent of current
or prior Realized Losses on the Group II Mortgage Loans not previously
reimbursed.
67
Transaction
Documents:
This
Agreement, the Interest Rate Swap Agreement, the Assignment Agreements and
any
other document or agreement entered into in connection with the Trust Fund,
the
Certificates or the Mortgage Loans.
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Transfer
Affidavit:
As
defined in Section 5.02(c)(ii).
Transferor
Certificate:
As
defined in Section 5.02(b).
Trust:
The
express trust created hereunder in Section 2.01(c).
Trust
Fund:
The
corpus of the trust created hereunder consisting of (i) the Mortgage Loans
and
all interest and principal received on or with respect thereto after the related
Cut-off Date, other than such amounts which were due on the Mortgage Loans
on or
before the related Cut-off Date; (ii) the Interest Rate Swap Agreement and
all
amounts received thereunder; (iii) the Primary Mortgage Insurance Policy, if
any, and all amounts received thereunder; (iv) the Excess Reserve Fund Account,
the Distribution Account, and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (v) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure or
otherwise; (vi) the rights of the Trust under the Step 2 Assignment Agreements;
(vii) the Supplemental Interest Trust; and (viii) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing. The Trust Fund
created hereunder is referred to as the GSAA Home Equity Trust
2007-5.
Trust
REMIC:
As
specified in the Preliminary Statement.
Trustee:
Deutsche Bank, and its successors in interest, and, if a successor trustee
is
appointed hereunder, such successor.
Underwriters’
Exemption:
Any
exemption listed in footnote 1 of, and amended by, Prohibited Transaction
Exemption 2002-41, 67 Fed. Reg. 54487 (2002), or amended by Prohibited
Transaction Exemption 2002-19, 67 Fed. Reg. 14979, or any successor
exemption.
68
Unpaid
Interest Amount:
As of
any Distribution Date and any Class of Certificates, the sum of (a) the portion
of the Accrued Certificate Interest from Distribution Dates remaining unpaid
prior to the current Distribution Date and (b) interest on the amount in clause
(a) at the applicable Pass-Through Rate (to the extent permitted by applicable
law).
U.S.
Bank:
U.S.
Bank National Association, a national banking association, and its successors
in
interest.
U.S.
Person:
(i) A
citizen or resident of the United States; (ii) a corporation (or entity treated
as a corporation for tax purposes) created or organized in the United States
or
under the laws of the United States or of any State thereof, including, for
this
purpose, the District of Columbia; (iii) a partnership (or entity treated as
a
partnership for tax purposes) organized in the United States or under the laws
of the United States or of any State thereof, including, for this purpose,
the
District of Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United States
income tax purposes regardless of its source; or (v) a trust, if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last clause
of the preceding sentence, to the extent provided in Treasury regulations,
certain trusts in existence on August 20, 1996, and treated as U.S. Persons
prior to such date, may elect to continue to be U.S. Persons.
Voting
Rights:
The
portion of the voting rights of all of the Certificates of such Group which
is
allocated to any Certificate. As of any date of determination, (a) .5% of all
Voting Rights shall be allocated to each of the Class 1X and Class 2X
Certificates if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) .5% of all Voting Rights shall be allocated to each of the
Class
1P and Class 2P Certificates, if any (such Voting Rights to be allocated among
the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), and (c) the remaining Voting Rights shall
be
allocated among Holders of the remaining Classes of Certificates in proportion
to the Certificate Balances of their respective Certificates on such
date.
WAC
Cap:
The
Group I WAC Cap or Group II WAC Cap, as applicable.
Wachovia:
Wachovia
Mortgage Corporation, a North Carolina corporation, and its successors in
interest.
Wachovia
Servicing Agreement: The
Seller’s Purchase, Warranties and Servicing Agreement, dated as of April 1,
2006, between Wachovia and GSMC.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, National Association, a national banking association, and its
successors in interest.
Xxxxx
Fargo Mortgage Loans:
The
Mortgage Loans acquired by the Purchaser from Xxxxx Fargo pursuant to the Xxxxx
Fargo Sale and Servicing Agreement.
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Xxxxx
Fargo Sale and Servicing Agreement:
The
Second Amended and Restated Master Seller’s Warranties and Servicing Agreement,
dated as of November 1, 2005, between Xxxxx Fargo Bank, National Association
and
Xxxxxxx Xxxxx Mortgage Company, as modified by the related Assignment
Agreements.
WHFIT:
shall
mean a “Widely Held Fixed Investment Trust” as that term is defined in Treasury
Regulations section 1.671-5(b)(22) or successor provisions.
WHFIT
Regulations:
shall
mean Treasury Regulations section 1.671-5, as amended.
WHMT:
shall
mean a “Widely Held Mortgage Trust” as that term is defined in Treasury
Regulations section 1.671-5(b)(23) or successor provisions.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
Section
2.01Conveyance
of Mortgage Loans.
(a) The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
benefit of the Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to the Trust Fund.
(a)In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered or caused to be delivered to the applicable Custodian on behalf
of
the Trustee for the benefit of the Certificateholders the following documents
or
instruments with respect to each applicable Mortgage Loan so
assigned:
(i)the
original Mortgage Note, endorsed without recourse in blank by the last endorsee,
including all intervening endorsements showing a complete chain of endorsement
from the originator to the last endorsee;
(ii)The
original Assignment of Mortgage in blank (or, in the case of the Goldman Conduit
Mortgage Loans, in form and substance acceptable for recording or if the
Mortgage is to be recorded, assigned to the Purchaser), unless the Mortgage
Loan
is a MERS Loan;
(iii)personal
endorsement, surety and/or guaranty agreements executed in connection with
all
non individual Mortgage Loans (corporations, partnerships, trusts, estates,
etc.
(if any));
(iv)the
related original Mortgage and evidence of its recording or a certified copy
of
the Mortgage with evidence of recording;
(v)originals
of any intervening Mortgage assignment or certified copies in either case
necessary to show a complete chain of title from the original mortgagee to
the
seller and evidencing recording; provided,
that,
except in the case of the Goldman Conduit Mortgage Loans, the assignment may
be
in the form of a blanket assignment or assignments, a copy of which with
evidence of recording shall be acceptable;
70
(vi)originals
of all assumption, modification, consolidation or extension agreements or
certified copies thereof, in either case with evidence of recording if required
to maintain the lien of the mortgage or if otherwise required, or, if
recordation is not required, an original or copy of the agreement; provided,
that,
in the case of the Goldman Conduit Mortgage Loans, an original with evidence
of
recording thereon is always required;
(vii)if
applicable to the files held by the applicable Custodian, an original or copy
of
a title insurance policy or evidence of title;
(viii)to
the
extent applicable, an original power of attorney;
(ix)for
each
Mortgage Loan (if applicable to the files held by the applicable Custodian)
with
respect to which the Mortgagor’s name as it appears on the note does not match
the borrower’s name on the Mortgage Loan Schedule, one of the following: the
original of the assumption agreement, or a certified copy thereof, in either
case with evidence of recording thereon if required to maintain the lien of
the
mortgage or if otherwise required, or, if recordation is not so required, an
original or copy of such assumption agreement;
(x)if
applicable to the files held by the applicable Custodian, a security agreement,
chattel mortgage or equivalent document executed in connection with the
Mortgage, if any; and
(xi) with
respect to each Mortgage Loan, the complete Custodial File including all items
as set forth in the applicable Servicing Agreement to the extent in the
possession of the Depositor or the Depositor’s Agents.
The
Depositor shall deliver or cause each Responsible Party to deliver to each
Custodian the applicable recorded document promptly upon receipt from the
respective recording office but in no event later than 120 days from the Closing
Date.
From
time
to time, pursuant to the applicable Sale Agreement, the Responsible Party may
forward to the applicable Custodian additional original documents, additional
documents evidencing an assumption, modification, consolidation or extension
of
a Mortgage Loan, in accordance with the terms of the applicable Sale Agreement.
All such mortgage documents held by the Custodians as to each Mortgage Loan
shall constitute the “Custodial
File.”
On
or
prior to the Closing Date, the Depositor shall deliver to the Custodians
Assignments of Mortgages (except in the case of MERS Loans), in blank, for
each
applicable Mortgage Loan. On the Closing Date, the Depositor shall provide
a
written request to each Responsible Party to submit the Assignments of Mortgage
for recordation, at the Responsible Party’s expense, pursuant to the applicable
Sale Agreement. Each Custodian shall deliver the Assignment of Mortgages to
be
submitted for recordation to the applicable Responsible Party upon receipt
of a
written request for release in standard and customary form as set forth in
Exhibit
L-1,
Exhibit
L-2,
Exhibit
L-3
or
Exhibit
L-4,
as
applicable.
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On
or
prior to the Closing Date, the Depositor shall deliver to the Custodians and
the
Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine
readable medium in a form mutually acceptable to the Depositor, the applicable
Custodian, the Master Servicer and the Trustee.
In
the
event that such original or copy of any document submitted for recordation
to
the appropriate public recording office is not so delivered to the Custodian
within the time period and in the manner specified in the applicable Sale
Agreement, the Trustee shall take or cause to be taken such remedial actions
under the Sale Agreement against the applicable Responsible Party as may be
permitted to be taken thereunder, including without limitation, if applicable,
the repurchase by the applicable Responsible Party of such Mortgage Loan. The
foregoing repurchase remedy shall not apply in the event that the Responsible
Party cannot deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided,
that
the applicable Responsible Party shall instead deliver a recording receipt
of
such recording office or, if such recording receipt is not available, an
Officer’s Certificate of an officer of the applicable Responsible Party,
confirming that such document has been accepted for recording.
Notwithstanding
anything to the contrary contained in this Section 2.01, in those instances
where the public recording office retains or loses the original Mortgage or
assignment after it has been recorded, the obligations of the Responsible Party
shall be deemed to have been satisfied upon delivery by the Responsible Party
to
the applicable Custodian prior to the Closing Date of a copy of such Mortgage
or
assignment, as the case may be, certified (such certification to be an original
thereof) by the public recording office to be a true and complete copy of the
recorded original thereof.
(b)The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust (the
“Trust”)
to be
known, for convenience, as “GSAA Home Equity Trust 2007-5” and Deutsche Bank is
hereby appointed as Trustee in accordance with the provisions of this
Agreement.
(c)It
is the
policy and intention of the Trust that none of the Mortgage Loans included
in
the Trust is (a) covered by the Home Ownership and Equity Protection Act of
1994, or (b) considered a “high cost home,” “threshold,” “predatory” or
“covered” loan (excluding “covered home loans” as defined under clause (1) of
the definition of “covered home loans” in the New Jersey Home Ownership Security
Act of 2002) under applicable state, federal or local laws.
Section
2.02Acceptance
by the Custodians of the Mortgage Loans.
Each
Custodian acknowledges receipt of the documents identified in the Initial
Certification, subject to any exceptions listed on the exception report attached
thereto, in the form annexed hereto as Exhibit
F,
and
declares that it holds and will hold such documents and the other documents
delivered to it pursuant to Section 2.01, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive
use
and benefit of all present and future Certificateholders. BNY, as Custodian,
acknowledges that it will maintain possession of the related Mortgage Notes
in
the State of Texas, unless otherwise permitted by the Rating Agencies, Deutsche
Bank, as Custodian, acknowledges that it will maintain possession of the related
Mortgage Notes in the State of California, unless otherwise permitted by the
Rating Agencies, U.S. Bank, as Custodian, acknowledges that it will maintain
possession of the related Mortgage Notes in the State of Minnesota and Xxxxx
Fargo, as Custodian, acknowledges that it will maintain possession of the
related Mortgage Notes in the State of Minnesota, unless otherwise permitted
by
the Rating Agencies.
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Prior
to
and as a condition to the Closing, each Custodian shall deliver via facsimile
(with original to follow the next Business Day) to the Depositor an Initial
Certification prior to the Closing Date, or as the Depositor agrees to, on
the
Closing Date, certifying receipt of a Mortgage Note and Assignment of Mortgage,
subject to any exceptions listed on the exception report attached thereto,
for
each Mortgage Loan. None of the Custodians shall be responsible for verifying
the validity, sufficiency or genuineness of any document in any Custodial
File.
On
the
Closing Date, each Custodian shall ascertain that all documents required to
be
delivered to it on or prior to the Closing Date are in its possession, subject
to any exceptions listed on the exception report attached thereto, and shall
deliver to the Depositor and the Trustee an Initial Certification, in the form
annexed hereto as Exhibit
E,
and
shall deliver to the Depositor and the Trustee a Document Certification and
Exception Report, in the form annexed hereto as Exhibit
F,
within
ninety (90) days after the Closing Date to the effect that, as to each
applicable Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in
such
certification as an exception and not covered by such certification): (i) all
documents required to be delivered to it are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; (iii) based on its examination and only as to the
foregoing documents, as to BNY, the information set forth in items 2, 8, 34,
and
35 of the Mortgage Loan Schedule respecting such Mortgage Loan is correct;
(iv)
based on its examination and only as to the foregoing documents, as to Deutsche
Bank, the information set forth in items 2, 8, 34, and 35 of the Mortgage Loan
Schedule respecting such Mortgage Loan is correct; (v) based on its examination
and only as to the foregoing documents, as to U.S. Bank, the information set
forth in items 2, 8, 34, and 35 of the Mortgage Loan Schedule respecting such
Mortgage Loan is correct; (vi) based on its examination and only as to the
foregoing documents, as to Xxxxx Fargo, the information set forth in items
2, 8,
34, and 35 of the Mortgage Loan Schedule respecting such Mortgage Loan is
correct; and (vii) each Mortgage Note has been endorsed as provided in Section
2.01 of this Agreement. None of the Custodians shall be responsible for
verifying the validity, sufficiency or genuineness of any document in any
Custodial File.
Each
Custodian shall retain possession and custody of each applicable Custodial
File
in accordance with and subject to the terms and conditions set forth herein.
The
Servicer shall promptly deliver to the applicable Custodian, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer
from
time to time.
73
Each
Custodian shall notify the Trustee and the Depositor of any Mortgage Loans
that
do not conform to the requirements of Sections 2.01 and 2.02 hereof by delivery
of the Document Certification and Exception Report. In its capacity as
“Assignee” under the Step 2 Assignment Agreements, the Trustee shall enforce the
obligation of the Responsible Parties to cure or repurchase Mortgage Loans
that
do not conform to such requirements as determined in the applicable Custodian’s
review as required herein, or based upon notification from the Master Servicer
(who shall be entitled to rely on information regarding any such defaults by
a
Responsible Party that has been provided by the applicable Servicer for purposes
of providing such notification to the Trustee), by notifying the applicable
Responsible Party to correct or cure such default. In its capacity as “Assignee”
under the Step 2 Assignment Agreements, the Trustee shall also enforce the
obligation of the Responsible Parties under the Sale Agreements, and to the
extent applicable, of any Servicer under the Servicing Agreements, and of the
Purchaser under the Step 1 Assignment Agreements to cure or repurchase Mortgage
Loans for which there is a defect or a breach of a representation or warranty
thereunder of which a Responsible Officer of the Trustee has actual knowledge,
by notifying the applicable party to correct or cure such default. If the
Trustee obtains actual knowledge that any Servicer, any Responsible Party or
the
Purchaser, as the case may be, fails or is unable to correct or cure the defect
or breach within the period set forth in the applicable agreement, the Trustee
shall notify the Depositor of such failure to correct or cure. Unless otherwise
directed by the Depositor within five (5) Business Days after notifying the
Depositor of such failure by the applicable party to correct or cure, the
Trustee shall notify such party to repurchase the Mortgage Loan. If, within
ten
(10) Business Days of receipt of such notice by such party, such party fails
to
repurchase such Mortgage Loan, the Trustee shall notify the Depositor of such
failure. The Trustee shall pursue all legal remedies available to the Trustee
against the Servicers, the Responsible Parties and the Purchaser, as applicable,
under this Agreement, if the Trustee has received written notice from the
Depositor directing the Trustee to pursue such remedies and the Trustee shall
be
entitled to reimbursement from the Trust Fund for any reasonable expenses
incurred in pursuing such remedies.
Section
2.03Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator
has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section
2.04REMIC
Matters.
The
Preliminary Statement sets forth the designations for federal income tax
purposes of all interests created hereby. The “Startup
Day”
for
purposes of the REMIC Provisions shall be the Closing Date. The “latest possible
maturity date” with respect to the Group I Certificates is May 25, 2037, and for
distributions on the Group I Residual Certificates, is March 25, 2047, which
is
the Distribution Date following the latest Group I Mortgage Loan maturity date.
The “latest possible maturity date” with respect to the Group II Certificates is
May 25, 2037, and for distributions on the Group II Residual Certificates,
is
April 25, 2047, which is the Distribution Date following the latest Group II
Mortgage Loan maturity date. Amounts paid to each of the Class 1X and the Class
2X Certificates (prior to any reduction for any Tax Basis Risk Payment or Swap
Termination Payment) shall be deemed paid to the holders of each of the
Class 1X and Class 2X Certificates, respectively, prior to distribution of
Tax Basis Risk Payments to the Principal Certificates of the applicable
Group.
74
Amounts
distributable to each of the Class 1X and the Class 2X Certificates (prior
to
any reduction for any Net Swap Receipt Amounts, Net Swap Payment Amounts or
Swap
Termination Payment), shall be deemed paid to the Holders of the Class 1X and
Class 2X Certificates, respectively, prior to distribution of any Tax Basis
Risk
Payments to the Principal Certificates of the applicable Group.
For
federal income tax purposes, any amount distributed on the Principal
Certificates of any Group on any such Distribution Date in excess of their
Pass
Through Rate, calculated by substituting the REMIC Cap for the applicable cap
in
respect of the related Certificates shall be treated as having been paid from
the Excess Reserve Fund Account or the Supplemental Interest Trust, as
applicable, and any excess of the REMIC Cap over the amount distributable on
such Class of Principal Certificates on such Distribution Date shall be treated
as having been paid to the Supplemental Interest Trust, all pursuant to, and
as
further provided in, Section 8.14.
Section
2.05Representations
and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the Trustee that as
of
the date of this Agreement or as of such date specifically provided
herein:
(a)The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b)The
Depositor has the corporate power and authority to convey the Mortgage Loans
and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement;
(c)This
Agreement has been duly and validly authorized, executed and delivered by the
Depositor, all requisite corporate action having been taken, and, assuming
the
due authorization, execution and delivery hereof by the other parties hereto,
constitutes or will constitute the legal, valid and binding agreement of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless
of
whether such enforcement is considered in a proceeding in equity or at
law);
(d)No
consent, approval, authorization or order of or registration or filing with,
or
notice to, any governmental authority or court is required for the execution,
delivery and performance of or compliance by the Depositor with this Agreement
or the consummation by the Depositor of any of the transactions contemplated
hereby, except as have been made on or prior to the Closing Date;
(e)None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby or thereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will conflict
with or results or will result in a breach of, or constitutes or will constitute
a default or results or will result in an acceleration under (A) the charter
or
bylaws of the Depositor, or (B) any term, condition or provision of any material
indenture, deed of trust, contract or other agreement or instrument to which
the
Depositor or any of its subsidiaries is a party or by which it or any of its
subsidiaries is bound; (ii) results or will result in a violation of any law,
rule, regulation, order, judgment or decree applicable to the Depositor of
any
court or governmental authority having jurisdiction over the Depositor or its
subsidiaries; or (iii) results in the creation or imposition of any lien, charge
or encumbrance which would have a material adverse effect upon the Mortgage
Loans or any documents or instruments evidencing or securing the Mortgage
Loans;
75
(f)There
are
no actions, suits or proceedings before or against or investigations of, the
Depositor pending, or to the knowledge of the Depositor, threatened, before
any
court, administrative agency or other tribunal, and no notice of any such
action, which, in the Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its obligations under
this
Agreement, or the validity or enforceability of this Agreement;
(g)The
Depositor is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency that may materially and adversely affect its performance hereunder;
and
(h)Immediately
prior to the transfer and assignment by the Depositor to the Trustee on the
Closing Date, the Depositor had good title to, and was the sole owner of each
Mortgage Loan, free of any interest of any other Person, and the Depositor
has
transferred all right, title and interest in each Mortgage Loan to the Trustee.
The transfer of each Mortgage Note and each Mortgage as and in the manner
contemplated by this Agreement is sufficient either (i) fully to transfer to
the
Trustee, for the benefit of the Certificateholders, all right, title, and
interest of the Depositor thereto as note holder and mortgagee or (ii) to grant
to the Trustee, for the benefit of the Certificateholders, the security interest
referred to in Section 12.04 hereof.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the respective Custodial
Files to the Custodians, and shall inure to the benefit and to
Certificateholders.
Section
2.06Representations
and Warranties of BNY.
BNY, as
Custodian, hereby represents and warrants to the Depositor, the Master Servicer
and the Trustee, as of the Closing Date:
(a)Such
Custodian is duly organized and is validly existing and in good standing under
the laws of its jurisdiction of incorporation and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by such Custodian or is otherwise not required under applicable law
to
effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under this Agreement in accordance with the terms
thereof.
(b)Such
Custodian has the full power and authority to execute, deliver and perform,
and
to enter into and consummate the transactions contemplated by this Agreement
and
has duly authorized by all necessary action on the part of such Custodian the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of such
Custodian, enforceable against such Custodian in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
76
(c)The
execution and delivery of this Agreement by such Custodian, the consummation
of
any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of such Custodian and will not result in a material breach of any
term or provision of the articles of association or by laws of such
Custodian.
Section
2.07Representations
and Warranties of Deutsche Bank.
Deutsche Bank, in its capacity as a Custodian, hereby represents and warrants
to
the Depositor, the Master Servicer and the Trustee, as of the Closing
Date:
(a)Such
Custodian is duly organized and is validly existing and in good standing under
the laws of its jurisdiction of incorporation and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by such Custodian or is otherwise not required under applicable law
to
effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under this Agreement in accordance with the terms
thereof.
(b)Such
Custodian has the full power and authority to execute, deliver and perform,
and
to enter into and consummate the transactions contemplated by this Agreement
and
has duly authorized by all necessary action on the part of such Custodian the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of such
Custodian, enforceable against such Custodian in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c)The
execution and delivery of this Agreement by such Custodian, the consummation
of
any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of such Custodian and will not result in a material breach of any
term or provision of the articles of association or by laws of such
Custodian.
Section
2.08Representations
and Warranties of U.S. Bank.
U.S.
Bank hereby represents and warrants to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date:
77
(a)Such
Custodian is duly organized and is validly existing and in good standing under
the laws of its jurisdiction of incorporation and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by such Custodian or is otherwise not required under applicable law
to
effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under this Agreement in accordance with the terms
thereof.
(b)Such
Custodian has the full power and authority to execute, deliver and perform,
and
to enter into and consummate the transactions contemplated by this Agreement
and
has duly authorized by all necessary action on the part of such Custodian the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of such
Custodian, enforceable against such Custodian in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c)The
execution and delivery of this Agreement by such Custodian, the consummation
of
any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of such Custodian and will not result in a material breach of any
term or provision of the articles of incorporation or by laws of such
Custodian.
Section
2.09Representations
and Warranties of Xxxxx Fargo.
Xxxxx
Fargo, in its capacity as a Custodian, hereby represents and warrants to the
Depositor, the Master Servicer and the Trustee, as of the Closing
Date:
(a)Such
Custodian is duly organized and is validly existing and in good standing under
the laws of its jurisdiction of incorporation and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by such Custodian or is otherwise not required under applicable law
to
effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under this Agreement in accordance with the terms
thereof.
(b)Such
Custodian has the full power and authority to execute, deliver and perform,
and
to enter into and consummate the transactions contemplated by this Agreement
and
has duly authorized by all necessary action on the part of such Custodian the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of such
Custodian, enforceable against such Custodian in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
78
(c)The
execution and delivery of this Agreement by such Custodian, the consummation
of
any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of such Custodian and will not result in a material breach of any
term or provision of the articles of incorporation or by laws of such
Custodian.
ARTICLE
III
TRUST
ACCOUNTS
Section
3.01Excess
Reserve Fund Account; Distribution Account.
(a) The
Securities Administrator shall establish and maintain the Excess Reserve Fund
Account to receive any Basis Risk Payment and to secure their limited recourse
obligation to pay to each Group of Principal Certificateholders any Basis Risk
Carry Forward Amounts allocable to such Group (prior to using any Net Swap
Receipt Amounts, if applicable). On each Distribution Date, the Securities
Administrator shall deposit the amount of any Basis Risk Payment received by
it
for such date into the Excess Reserve Fund Account. For the avoidance of doubt,
any Basis Risk Carry Forward Amounts shall be paid to the Principal Certificates
of the related Group first from the Excess Reserve Fund Account and then, solely
with respect to the Group II Certificates, from the Supplemental Interest
Trust.
With
respect to the Group I Certificates, on each Distribution Date on which there
exists a Basis Risk Carry Forward Amount on any Class or Classes of Group I
Principal Certificates, the Securities Administrator shall (1) withdraw from
the
Distribution Account, to the extent of funds available therefor in the
Distribution Account, and deposit in the Excess Reserve Fund Account, as set
forth in Sections 4.01(a)(iii)(k), the lesser of (x) the Class 1X Distributable
Amount (without regard to the reduction in clause (iii) of the definition
thereof with respect to Basis Risk Payments) (to the extent remaining after
the
distributions specified in Sections 4.01(a)(iii)(A)-(J)) and (y) the aggregate
Basis Risk Carry Forward Amount of the Group I Principal Certificates for such
Distribution Date and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of Group I Certificates the related
Basis Risk Carry Forward Amount. Such payments shall be allocated to those
Classes of Group I Certificates based upon the amount of Basis Risk Carry
Forward Amount owed to each such Class of Group I Certificates and shall be
paid
in the priority set forth in Section 4.01(a)(iii)(L).
With
respect to the Group II Certificates, on each Distribution Date on which there
exists a Basis Risk Carry Forward Amount on any Class or Classes of Group II
Principal Certificates, the Securities Administrator shall (1) withdraw from
the
Distribution Account, to the extent of funds available therefor in the
Distribution Account, and deposit in the Excess Reserve Fund Account, as set
forth in Section 4.02(a)(iii)(k), the lesser of (x) the Class 2X Distributable
Amount (without regard to the reduction in clause (iii) of the definition
thereof with respect to Basis Risk Payments) (to the extent remaining after
the
distributions specified in Sections 4.02(a)(iii)(A)-(J)) and (y) the aggregate
Basis Risk Carry Forward Amount of the Group II Principal Certificates for
such
Distribution Date and (2) withdraw from the Excess Reserve Fund Account and
the
Supplemental Interest Account amounts necessary (including Net Swap Payment
Amounts or Swap Termination Payments (other than amounts received pursuant
to an
ISDA Credit Support Annex negotiated between the Trust and the Swap Provider
and
provided, that Net Swap Payment Amounts shall only be distributed to the holders
of the Floating Rate Certificates)) to pay to such Class or Classes of Group
II
Certificates the related Basis Risk Carry Forward Amount. Such payments shall
be
allocated to those Classes of Group II Certificates based upon the amount of
Basis Risk Carry Forward Amount owed to each such Class of Group II Certificates
and shall be paid in the priority set forth in Section
4.02(a)(iii)(L).
79
The
Securities Administrator shall account for the Excess Reserve Fund Account
as an
asset of a grantor trust under subpart E, Part I of subchapter J of the Code
and
not as an asset of any Trust REMIC created pursuant to this Agreement. For
all
federal income tax purposes, (a) amounts transferred to the Excess Reserve
Fund
Account to pay Basis Risk Carry Forward Amounts in respect of the Group I
Certificates shall be treated as distributions by the Securities Administrator
to the Class 1X Certificates and then contributed by the Class 1X
Certificateholders to the Excess Reserve Fund Account, and (b) amounts
transferred to the Excess Reserve Fund Account to pay Tax Basis Risk Carry
Forward Amounts in respect of the Group II Certificates shall be treated as
distributions by the Securities Administrator to the Class 2X Certificates
and
then contributed by the Class 2X Certificateholders to the Excess Reserve Fund
Account. The Class 1X and Class 2X Certificateholders will be the beneficial
owners of the portions of the Excess Reserve Fund Account that correspond to
their respective obligations to make payments of Tax Basis Risk Carry Forward
Amounts.
Any
Tax
Basis Risk Carry Forward Amounts distributed by the Securities Administrator
to
the Principal Certificateholders shall be accounted for by the Securities
Administrator, for federal income tax purposes, as amounts paid first to the
Holders of the related Class 1X and Class 2X Certificates and then to the
respective Class or Classes of Principal Certificates in accordance with the
priority of payments in this Section 3.01. In addition, the Securities
Administrator shall account for the Principal Certificateholders’ rights to
receive payments of Tax Basis Risk Carry Forward Amounts as rights in a limited
recourse interest rate cap contract written by each of the Class 1X and the
Class 2X Certificateholders in favor of the Holders of each related Class of
Principal Certificates.
Notwithstanding
any provision contained in this Agreement, the Securities Administrator shall
not be required to make any distributions from the Excess Reserve Fund Account
except as expressly set forth in this Section 3.01(a).
(a)The
Securities Administrator shall establish and maintain the Distribution Account
on behalf of the Certificateholders. The amount remitted by the Servicer to
the
Master Servicer on each Remittance Date shall be credited to the Distribution
Account within two (2) Business Days once the amounts are identified as a
remittance in connection with the Trust and reconciled to the reports provided
by the Servicer. The Securities Administrator shall establish and maintain
the
Distribution Account on behalf of the Certificateholders. The Master Servicer
shall, promptly upon receipt on the Business Day received, deposit in the
Distribution Account and retain therein the following:
(i)the
aggregate amount remitted by the Servicers to the Master Servicer pursuant
to
the Servicing Agreements;
80
(ii)any
amounts remitted as a result of the operation of the Primary Mortgage Insurance
Policy, if applicable;
(iii)any
Net
Swap Receipt Amounts or Swap Termination Payments (other than amounts received
pursuant to an ISDA Credit Support Annex negotiated between the Trust and the
Swap Provider) remitted by the Swap Provider; and
(iv)any
other
amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that any Servicer shall remit any amount not required to be remitted
pursuant to the applicable Servicing Agreement, and such Servicer directs the
Master Servicer in writing to withdraw such amount from the Distribution
Account, the Master Servicer shall return such funds to the applicable Servicer.
All funds deposited in the Distribution Account shall be held by the Securities
Administrator in trust for the Certificateholders until disbursed in accordance
with this Agreement or withdrawn in accordance with Section 4.01 or 4.02, as
applicable.
(c) From
time
to time, the Securities Administrator may also establish any other accounts
for
the purposes of carrying out its duties hereunder (including, without
limitation, any account necessary under the Interest Rate Swap
Agreement).
Section
3.02Investment
of Funds in the Distribution Account.
(a)
Other than during the Master Servicer Float Period, the Depositor shall direct
the investment of funds held in the Distribution 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 or any successor fund so long as such fund is
a
Permitted Investment. The Securities Administrator may (but shall not be
obligated to) invest funds in the Distribution Account during the Master
Servicer Float Period (for purposes of this Section 3.02, such Account is
referred to as an “Investment
Account”),
in
one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, or maturing on such Distribution Date,
in
the case of an investment that is an obligation of Xxxxx Fargo, no later than
the Business Day immediately preceding the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Securities
Administrator. The Securities Administrator shall be entitled to sole possession
over each such investment, and any certificate or other instrument evidencing
any such investment shall be delivered directly to the Securities Administrator
or its agent, together with any document of transfer necessary to transfer
title
to such investment to the Securities Administrator. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Securities Administrator may:
|
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then
payable thereunder and (2) the amount required to be withdrawn on
such
date; and
|
81
|
(y)
|
demand
payment of all amounts due thereunder that such Permitted Investment
would
not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account.
|
(b)All
income and gain realized from the investment of funds deposited in the
Distribution Account held by the Securities Administrator during the Master
Servicer Float Period shall be subject to the Securities Administrator’s
withdrawal in the manner set forth in Section 10.05.
(c)Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Securities
Administrator shall take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
proceedings. Notwithstanding the foregoing, the Depositor shall be liable to
the
Trust for any loss on any investment of funds in the Distribution Account other
than during the Master Servicer Float Period and the Securities Administrator
shall be liable to the Trust for any such loss on any funds it has invested
under this Section 3.02 only during the Master Servicer Float Period, and the
Depositor or the Securities Administrator, as the case may be, shall deposit
funds in the amount of such loss in the Distribution Account promptly after
such
loss is incurred.
(d)The
Securities Administrator or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Securities Administrator’s
economic self-interest for (i) serving as investment adviser, administrator,
shareholder, servicing agent, custodian or sub-custodian with respect to certain
of the Permitted Investments, (ii) using Affiliates to effect transactions
in
certain Permitted Investments and (iii) effecting transactions in certain
Permitted Investments. Such compensation is not payable or reimbursable under
Section 8.06 of this Agreement.
(e)In
order
to comply with its duties under the USA PATRIOT Act of 2001, BNY, U.S. Bank
and
Xxxxx Fargo, each as a Custodian, may obtain and verify certain information
and
documentation from the other parties to this Agreement including, but not
limited to, each such party’s name, address and other identifying
information.
(f)In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, Deutsche Bank as Trustee and a Custodian is required to obtain,
verify and record certain information relating to individuals and entities
which
maintain a business relationship with Deutsche Bank. Accordingly, each of the
parties agrees to provide to Deutsche Bank upon its request from time to time
such party’s complete name, address, tax identification number and such other
identifying information together with copies of such party’s constituting
documentation, securities disclosure documentation and such other identifying
documentation as may be available for such party.
82
ARTICLE
IV
DISTRIBUTIONS
Section
4.01Priorities
of Distribution to the Group I Certificates.
(a) On
each Distribution Date, the Securities Administrator shall make the
disbursements and transfers from amounts then on deposit in the Distribution
Account in the following order of priority and to the extent of the Available
Funds remaining with respect to the Group I Mortgage Loans:
(i)to
the
holders of each Class of Group I Principal Certificates in the following order
of priority:
(A) from
the
Group I Interest Remittance Amounts, pro
rata
(based
on the Accrued Certificate Interest and Unpaid Interest Amounts, distributable
to each Class of Class 1A Certificates), to each of the Class 1A Certificates,
the related Accrued Certificate Interest and Unpaid Interest Amounts for each
Class of the Class 1A Certificates from prior Distribution Dates;
(B) from
any
remaining Group I Interest Remittance Amounts to the Class 1M Certificates,
sequentially, in ascending numerical order, their Accrued Certificate Interest;
and
(C) from
any
remaining Group I Interest Remittance Amounts to the Class 1B Certificates,
sequentially, in ascending numerical order, their Accrued Certificate
Interest.
(ii)(A)on
each
Distribution Date (x) prior to the Group I Stepdown Date or (y) with respect
to
which a Group I Trigger Event is in effect, to the holders of the Class or
Classes of Group I Principal Certificates and Group I Residual Certificates
then
entitled to distributions of principal, from Available Funds (with respect
to
the Group I Mortgage Loans) remaining after making distributions pursuant to
clause (a)(i) above, an amount equal to the Group I Principal Distribution
Amount in the following order of priority:
(1)concurrently,
to the Class 1R, Class 1RC and Class 1RX Certificates, pro
rata,
until
their respective Class Certificate Balances have been reduced to
zero;
(2)to
the
Class 1A Certificates, in the following order of priority:
(I) concurrently,
to the Class 1AF6, Class 1AF7A and Class 1AF7B Certificates, allocated
pro
rata
based on
their respective Class Certificate Balances, an amount equal to the Lockout
Distribution Amount, until their respective Class Certificate Balances have
been
reduced to zero; with the exception that if a Group I Sequential Trigger Event
is in effect, principal distributions to the Class 1AF7A and Class 1AF7B
Certificates will be allocated first, to the Class 1AF7A Certificates, until
its
Class Certificate Balance has been reduced to zero, and then to the Class 1AF7B
Certificates until its Class Certificate Balance has been reduced to
zero;
83
(II) to
the
Class 1AV1 Certificates, until its Class Certificate Balance has been reduced
to
zero;
(III) concurrently,
to the Class 1AF2A and Class 1AF2B Certificates, allocated
pro
rata
based on
their respective Class Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero, with the exception that if
a
Group I Sequential Trigger Event is in effect, principal distributions to the
Class 1AF2A and Class 1AF2B Certificates will be allocated first, to the Class
1AF2A Certificates, until its Class Certificate Balance has been reduced to
zero, and then to the Class 1AF2B Certificates until its Class Certificate
Balance has been reduced to zero;
(IV) concurrently,
to the Class 1AF3A and Class 1AF3B Certificates, allocated
pro
rata
based on
their respective Class Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero, with the exception that if
a
Group I Sequential Trigger Event is in effect, principal distributions to the
Class 1AF3A and Class 1AF3B Certificates will be allocated first, to the Class
1AF3A Certificates, until its Class Certificate Balance has been reduced to
zero, and then to the Class 1AF3B Certificates until its Class Certificate
Balance has been reduced to zero;
(V) concurrently,
to the Class 1AF4A and Class 1AF4B Certificates, allocated
pro
rata
based on
their respective Class Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero, with the exception that if
a
Group I Sequential Trigger Event is in effect, principal distributions to the
Class 1AF4A and Class 1AF4B Certificates will be allocated first, to the Class
1AF4A Certificates, until its Class Certificate Balance has been reduced to
zero, and then to the Class 1AF4B Certificates until its Class Certificate
Balance has been reduced to zero;
(VI) concurrently,
to the Class 1AF5A and Class 1AF5B Certificates, allocated
pro
rata
based on
their respective Class Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero, with the exception that if
a
Group I Sequential Trigger Event is in effect, principal distributions to the
Class 1AF5A and Class 1AF5B Certificates will be allocated first, to the Class
1AF5A Certificates, until its Class Certificate Balance has been reduced to
zero, and then to the Class 1AF5B Certificates until its Class Certificate
Balance has been reduced to zero;
84
(VII) concurrently,
to the Class 1AF6, Class 1AF7A and Class 1AF7B Certificates, allocated
pro
rata
based on
their respective Class Certificate Balances, without regard to the Lockout
Distribution Amount, until their respective Class Certificate Balances have
been
reduced to zero; with the exception that if a Group I Sequential Trigger Event
is in effect, principal distributions to the Class 1AF7A and Class 1AF7B
Certificates will be allocated first, to the Class 1AF7A Certificates, until
its
Class Certificate Balance has been reduced to zero, and then to the Class 1AF7B
Certificates until its Class Certificate Balance has been reduced to
zero;
(3)sequentially,
to the Class 1M1, Class 1M2, Class 1M3, Class 1M4, Class 1M5, Class 1M6, Class
1B1, Class 1B2 and Class 1B3 Certificates, in that order, until their respective
Class Certificate Balances have been reduced to zero;
(B) on
each
Distribution Date (x) on and after the Group I Stepdown Date and (y) as long
as
a Group I Trigger Event is not in effect, to the holders of the Class or Classes
of Group I Principal Certificates then entitled to distribution of principal
from Available Funds (with respect to the Group I Mortgage Loans) remaining
after making distributions pursuant to clause (i) above, an amount equal to
the
Group I Principal Distribution Amount in the following order of
priority:
(1)to
the
Class 1A Certificates, the lesser of (x) the Group I Principal Distribution
Amount and (y) the Class 1A Principal Distribution Amount allocated among those
classes in the following order of priority:
(I) concurrently,
to the Class 1AF6, Class 1AF7A and Class 1AF7B Certificates, allocated
pro
rata
based on
their respective Class Certificate Balances, the Lockout Distribution Amount,
until their respective Class Certificate Balances have been reduced to
zero;
(II) to
the
Class 1AV1 Certificates, until its Class Certificate Balance has been reduced
to
zero;
(III) concurrently,
to the Class 1AF2A and Class 1AF2B Certificates, allocated pro
rata
based on
their respective Class Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero;
85
(IV) concurrently,
to the Class 1AF3A and Class 1AF3B Certificates, allocated pro
rata
based on
their respective Class Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero;
(V) concurrently,
to the Class 1AF4A and Class 1AF4B Certificates, allocated pro
rata
based on
their respective Class Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero;
(VI) concurrently,
to the Class 1AF5A and Class 1AF5B Certificates, allocated pro
rata
based on
their respective Class Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero;
(VII) concurrently,
to the Class 1AF6, Class 1AF7A and Class 1AF7B Certificates, allocated
pro
rata
based on
their respective Class Certificate Balances, without regard to the Lockout
Distribution Amount, until their respective Class Certificate Balances have
been
reduced to zero;
(2)to
the
Class 1M1 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above and (y) the Class 1M1 Principal
Distribution Amount, until their Class Certificate Balance has been reduced
to
zero;
(3)to
the
Class 1M2 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above and to the Class 1M1 Certificates in
clause (ii)(B)(2) above and (y) the Class 1M2 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to zero;
(4)to
the
Class 1M3 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above, to the Class 1M1 Certificates in clause
(ii)(B)(2) above and to the Class 1M2 Certificates in clause (ii)(B)(3) above
and (y) the Class 1M3 Principal Distribution Amount, until their Class
Certificate Balance has been reduced to zero;
(5)to
the
Class 1M4 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above, to the Class 1M1 Certificates in clause
(ii)(B)(2) above, to the Class 1M2 Certificates in clause (ii)(B)(3) above
and
to the Class 1M3 Certificates in clause (ii)(B)(4) above and (y) the Class
1M4
Principal Distribution Amount, until their Class Certificate Balance has been
reduced to zero;
86
(6)to
the
Class 1M5 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above, to the Class 1M1 Certificates in clause
(ii)(B)(2) above, to the Class 1M2 Certificates in clause (ii)(B)(3) above,
to
the Class 1M3 Certificates in clause (ii)(B)(4) above and to the Class 1M4
Certificates in clause (ii)(B)(5) above and (y) the Class 1M5 Principal
Distribution Amount, until their Class Certificate Balance has been reduced
to
zero;
(7)to
the
Class 1M6 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above, to the Class 1M1 Certificates in clause
(ii)(B)(2) above, to the Class 1M2 Certificates in clause (ii)(B)(3) above,
to
the Class 1M3 Certificates in clause (ii)(B)(4) above and to the Class 1M4
Certificates in clause (ii)(B)(5) above and to the Class 1M5 Certificates in
clause (ii)(B)(6) above and (y) the Class 1M6 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to zero;
(8)to
the
Class 1B1 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above, to the Class 1M1 Certificates in clause
(ii)(B)(2) above, to the Class 1M2 Certificates in clause (ii)(B)(3) above,
to
the Class 1M3 Certificates in clause (ii)(B)(4) above, to the Class 1M4
Certificates in clause (ii)(B)(5) above, to the Class 1M5 Certificates in clause
(ii)(B)(6) above and to the Class 1M6 Certificates in clause (ii)(B)(7) above
and (y) the Class 1B1 Principal Distribution Amount, until their Class
Certificate Balance has been reduced to zero;
(9)to
the
Class 1B2 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above, to the Class 1M1 Certificates in clause
(ii)(B)(2) above, to the Class 1M2 Certificates in clause (ii)(B)(3) above,
to
the Class 1M3 Certificates in clause (ii)(B)(4) above, to the Class 1M4
Certificates in clause (ii)(B)(5) above, to the Class 1M5 Certificates in clause
(ii)(B)(6) above, to the Class 1M6 Certificates in clause (ii)(B)(7) above
and
to the Class 1B1 Certificates in clause (ii)(B)(8) above and (y) the Class
1B2
Principal Distribution Amount, until their Class Certificate Balance has been
reduced to zero; and
(10)to
the
Class 1B3 Certificates, the lesser of (x) the excess of (i) the Group I
Principal Distribution Amount over (ii) the amount distributed to the Class
1A
Certificates in clause (ii)(B)(1) above, to the Class 1M1 Certificates in clause
(ii)(B)(2) above, to the Class 1M2 Certificates in clause (ii)(B)(3) above,
to
the Class 1M3 Certificates in clause (ii)(B)(4) above, to the Class 1M4
Certificates in clause (ii)(B)(5) above, to the Class 1M5 Certificates in clause
(ii)(B)(6) above, to the Class 1M6 Certificates in clause (ii)(B)(7) above,
to
the Class 1B1 Certificates in clause (ii)(B)(8) above and to the Class 1B2
Certificates in clause (ii)(B)(9) above and (y) the Class 1B3 Principal
Distribution Amount, until their Class Certificate Balance has been reduced
to
zero.
87
(iii)from
the
Available Funds (with respect to the Group I Mortgage Loans) remaining after
the
distributions in clauses (a)(i) and (a)(ii) above, the following amounts shall
be distributed in the following order of priority:
(A) if
and to
the extent that the Group I Interest Remittance Amounts distributed pursuant
to
clauses (a)(i) and (a)(ii) above were insufficient to make full distributions
in
respect of interest set forth in such clauses, (x) to the holders of each Class
of Class 1A Certificates, any unpaid Accrued Certificate Interest and any Unpaid
Interest Amounts, pro
rata
among
such Classes based on their respective entitlement to those amounts, and then
(y) to the holders of each Class of the Class 1M and Class 1B Certificates,
any
unpaid Accrued Certificate Interest, in the order of priority for such classes
set forth in clause (i) above;
(B) to
the
holders of the Class 1M1 Certificates, any Unpaid Interest Amount for such
Class;
(C) to
the
holders of the Class 1M2 Certificates, any Unpaid Interest Amount for such
Class;
(D) to
the
holders of the Class 1M3 Certificates, any Unpaid Interest Amount for such
Class;
(E) to
the
holders of the Class 1M4 Certificates, any Unpaid Interest Amount for such
Class;
(F) to
the
holders of the Class 1M5 Certificates, and Unpaid Interest Amount for such
Class;
(G) to
the
holders of the Class 1M6 Certificates, and Unpaid Interest Amount for such
Class;
(H) to
the
holders of the Class 1B1 Certificates, any Unpaid Interest Amount for such
Class;
(I) to
the
holders of the Class 1B2 Certificates, any Unpaid Interest Amount for such
Class;
88
(J) to
the
holders of the Class 1B3 Certificates, any Unpaid Interest Amount for such
Class;
(K) to
the
Excess Reserve Fund Account, the amount of any Basis Risk Payment with respect
to the Group I Certificates for such Distribution Date;
(L) from
funds on deposit in the Excess Reserve Fund Account with respect to that
Distribution Date and the Group I Certificates, an amount equal to any Basis
Risk Carry Forward Amount with respect to the Group I Principal Certificates
for
that Distribution Date in the same order and priority in which Accrued
Certificate Interest is allocated among those Classes of Certificates, with
the
allocation to the Class 1A Certificates being pro
rata
based on
their respective Class Certificate Balances; provided, however, for any
Distribution Date, after the remaining Basis Risk Carry Forward Amount for
any
of the Class 1A Certificates has been reduced to zero, any remaining Basis
Risk
Carry Forward Amount that would have been allocated to such Class 1A
Certificates for that Distribution Date will be allocated, pro
rata,
to the
remaining Class 1A Certificates based on their respective remaining unpaid
Basis
Risk Carry Forward Amounts;
(M) if
a
40-Year Trigger Event is in effect, then any remaining amounts will be
distributed first, to the Class 1A Certificates, allocated in the order of
priority for such Classes set forth in clauses (a)(i) and (a)(ii) above, and
then sequentially to the Class 1M1, Class 1M2, Class, M3, Class 1M4, Class
1M5,
Class 1M6, Class 1B1, Class 1B2, Class 1B3 and Class 1B4 Certificates, the
lesser of (x) any remaining amounts and (y) the amount necessary to increase
the
actual Overcollateralized Amount (solely with respect to the Group I
Certificates) for such Distribution Date so the 40-Year Trigger Event is no
longer in effect, in each case, until their respective Class Certificate
Balances have been reduced to zero;
(N) to
the
holders of the Class 1X Certificates, the remainder of the Class 1X
Distributable Amount not distributed pursuant to Section 4.01(a)(iii)(A)-(M);
and
(O) to
the
holders of the Class 1R, Class 1RC and Class 1RX Certificates, pro
rata,
any
remaining amount.
(b)On
each
Distribution Date, all amounts representing Prepayment Premiums from the Group
I
Mortgage Loans received during the related Principal Prepayment Period shall
be
distributed by the Securities Administrator to the holders of the Class 1P
Certificates.
(c)Notwithstanding
the foregoing description of allocation of principal distributions to the Class
1A Certificates, from and after the Distribution Date on which the aggregate
Class Certificate Balance of the Class 1M1, Class 1M2, Class 1M3, Class 1M4,
Class 1M5, Class 1M6, Class 1B1, Class 1B2 and Class 1B3 Certificates and the
Overcollateralized Amount with respect to the Group I Certificates have been
reduced to zero, any principal distributions allocated to the Class 1A
Certificates are required to be allocated pro rata to the Class 1A Certificates,
based on their respective Class Certificate Balances, until their respective
Class Principal Balances have been returned to zero, with the exception that
if
a Group I Sequential Trigger Event is in effect, (i) principal distributions
to
the Class 1AF2A and Class 1AF2B Certificates will be allocated first to the
Class 1AF2A Certificates, until its Class Certificate Balance has been reduced
to zero, and then to the Class 1AF2B Certificates, until its Class Certificate
Balance has been reduced to zero, (ii) principal distributions to the Class
1AF3A and Class 1AF3B Certificates will be allocated first to the Class 1AF3A
Certificates, until its Class Certificate Balance has been reduced to zero,
and
then to the Class 1AF3B Certificates, until its Class Certificate Balance has
been reduced to zero, (iii) principal distributions to the Class 1AF4A and
Class
1AF4B Certificates will be allocated first to the Class 1AF4A Certificates,
until its Class Certificate Balance has been reduced to zero, and then to the
Class 1AF4B Certificates, until its Class Certificate Balance has been reduced
to zero, (iv) principal distributions to the Class 1AF5A and Class 1AF5B
Certificates will be allocated first to the Class 1AF5A Certificates, until
its
Class Certificate Balance has been reduced to zero, and then to the Class 1AF5B
Certificates, until its Class Certificate Balance has been reduced to zero
and
(v) principal distributions to the Class 1AF7A and Class 1AF7B Certificates
will
be allocated first to the Class 1AF7A Certificates, until its Class Certificate
Balance has been reduced to zero, and then to the Class 1AF7B Certificates,
until its Class Certificate Balance has been reduced to zero.
89
(d)On
any
Distribution Date, any Relief Act Interest Shortfalls and Net Prepayment
Interest Shortfalls for such Distribution Date shall be allocated first to
excess interest on the Mortgage Loans for the related Distribution Date and
thereafter, pro
rata,
as a
reduction of the Accrued Certificate Interest for the Class 1A, Class 1M and
Class 1B Certificates, based on the Accrued Certificate Interest to which such
Classes would otherwise be entitled on such Distribution Date.
Upon
any
exercise of the purchase option set forth in Section 11.01, the Securities
Administrator shall distribute to the holders of the Class 1RC Certificates
any
amounts required to be distributed on the Class 1RC Certificates pursuant to
Section 11.03.
Section
4.02Priorities
of Distribution to the Group II Certificates.
(a) On
each Distribution Date, the Securities Administrator shall make the
disbursements and transfers from amounts then on deposit in the Distribution
Account in the following order of priority and to the extent of the Available
Funds remaining with respect to the Group II Mortgage Loans:
(i)to
the
holders of each Class of Group II Principal Certificates and to the Supplemental
Interest Trust in the following order of priority:
(A) to
the
Supplemental Interest Trust, the sum of (x) all Net Swap Payment Amounts and
(y)
any Swap Termination Payment owed to the Swap Provider other than a Defaulted
Swap Termination Payment owed to the Swap Provider, if any;
(B) from
the
Group II Interest Remittance Amounts, pro
rata
(based
on the Accrued Certificate Interest and Unpaid Interest Amounts, distributable
to each Class of Class 2A Certificates), to each of the Class 2A Certificates,
the related Accrued Certificate Interest and Unpaid Interest Amounts for each
Class of the Class 2A Certificates from prior Distribution Dates;
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(C) from
any
remaining Group II Interest Remittance Amounts to the Class 2M Certificates,
sequentially, in ascending numerical order, their Accrued Certificate Interest;
and
(D) from
any
remaining Group II Interest Remittance Amounts to the Class 2B Certificates,
sequentially, in ascending numerical order, their Accrued Certificate
Interest.
(ii)(A)on
each
Distribution Date (x) prior to the Group II Stepdown Date or (y) with respect
to
which a Group II Trigger Event is in effect, to the holders of the Class 2
or
Classes of Group II Principal Certificates and Group II Residual Certificates
then entitled to distributions of principal, from Available Funds (with respect
to the Group II Certificates) remaining after making distributions pursuant
to
clause (a)(i) above, an amount equal to the Group II Principal Distribution
Amount in the following order of priority:
(1)concurrently,
to the Class 2R, Class 2RC and Class 2RX Certificates, pro
rata,
until
their respective Class Certificate Balances have been reduced to
zero;
(2)concurrently,
to the Class 2A Certificates, in the following order of priority:
(I) concurrently,
to the Class 2A1A and Class 2A1B Certificates, pro
rata,
until
their respective Class Certificate Balances have been reduced to zero, with
the
exception that if a Group II Sequential Trigger Event is in effect, principal
distributions to the Class 2A1A and Class 2A1B Certificates will be allocated
first to the Class 2A1A Certificates, until its Class Certificate Balance has
been reduced to zero, and then to the Class 2A1B Certificates, until its Class
Certificate Balance has been reduced to zero;
(II) concurrently,
to the Class 2A2A and Class 2A2B Certificates, pro
rata,
until
their respective Class Certificate Balances have been reduced to zero, with
the
exception that if a Group II Sequential Trigger Event is in effect, principal
distributions to the Class 2A2A and Class 2A2B Certificates will be allocated
first to the Class 2A2A Certificates, until its Class Certificate Balance has
been reduced to zero, and then to the Class 2A2B Certificates, until its Class
Certificate Balance has been reduced to zero;
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(III) concurrently,
to the Class 2A3A and Class 2A3B Certificates, pro
rata,
until
their respective Class Certificate Balances have been reduced to zero, with
the
exception that if a Group II Sequential Trigger Event is in effect, principal
distributions to the Class 2A3A and Class 2A3B Certificates will be allocated
first to the Class 2A3A Certificates, until its Class Certificate Balance has
been reduced to zero, and then to the Class 2A3B Certificates, until its Class
Certificate Balance has been reduced to zero; and
(3)sequentially,
to the Class 2M1, Class 2M2, Class 2M3, Class 2M4, Class 2M5, Class 2M6, Class
2B1, Class 2B2 and Class 2B3 Certificates, in that order, until their respective
Class Certificate Balances have been reduced to zero;
(B) on
each
Distribution Date (x) on and after the Group II Stepdown Date and (y) as long
as
a Group II Trigger Event is not in effect, to the holders of the Class or
Classes of Group II Principal Certificates then entitled to distribution of
principal from Available Funds (with respect to the Group II Mortgage Loans)
remaining after making distributions pursuant to clause (i) above, an amount
equal to the Group II Principal Distribution Amount in the following order
of
priority:
(1)to
the
Class 2A Certificates, the lesser of (x) the Group II Principal Distribution
Amount and (y) the Class 2A Principal Distribution Amount allocated among those
classes in the following order of priority:
(x) concurrently,
to the Class 2A1A and Class 2A1B Certificates, pro
rata,
until
their respective Class Certificate Balances have been reduced to
zero;
(II) concurrently,
to the Class 2A2A and Class 2A2B Certificates, pro
rata,
until
their respective Class Certificate Balances have been reduced to zero;
and
(y) concurrently,
to the Class 2A3A and Class 2A3B Certificates, pro
rata,
until
their respective Class Certificate Balances have been reduced to zero;
and
(2)to
the
Class 2M1 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above and (y) the Class 2M1 Principal
Distribution Amount, until their Class Certificate Balance has been reduced
to
zero;
(3)to
the
Class 2M2 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above and to the Class 2M1 Certificates in
clause (ii)(B)(2) above and (y) the Class 2M2 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to zero;
92
(4)to
the
Class 2M3 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above, to the Class 2M1 Certificates in clause
(ii)(B)(2) above and to the Class 2M2 Certificates in clause (ii)(B)(3) above
and (y) the Class 2M3 Principal Distribution Amount, until their Class
Certificate Balance has been reduced to zero;
(5)to
the
Class 2M4 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above, to the Class 2M1 Certificates in clause
(ii)(B)(2) above, to the Class 2M2 Certificates in clause (ii)(B)(3) above
and
to the Class 2M3 Certificates in clause (ii)(B)(4) above and (y) the Class
2M4
Principal Distribution Amount, until their Class Certificate Balance has been
reduced to zero;
(6)to
the
Class 2M5 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above, to the Class 2M1 Certificates in clause
(ii)(B)(2) above, to the Class 2M2 Certificates in clause (ii)(B)(3) above,
to
the Class 2M3 Certificates in clause (ii)(B)(4) above and to the Class 2M4
Certificates in clause (ii)(B)(5) above and (y) the Class 2M5 Principal
Distribution Amount, until their Class Certificate Balance has been reduced
to
zero;
(7)to
the
Class 2M6 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above, to the Class 2M1 Certificates in clause
(ii)(B)(2) above, to the Class 2M2 Certificates in clause (ii)(B)(3) above,
to
the Class 2M3 Certificates in clause (ii)(B)(4) above and to the Class 2M4
Certificates in clause (ii)(B)(5) above and to the Class 2M5 Certificates in
clause (ii)(B)(6) above and (y) the Class 2M6 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to zero;
(8)to
the
Class 2B1 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above, to the Class 2M1 Certificates in clause
(ii)(B)(2) above, to the Class 2M2 Certificates in clause (ii)(B)(3) above,
to
the Class 2M3 Certificates in clause (ii)(B)(4) above, to the Class 2M4
Certificates in clause (ii)(B)(5) above, to the Class 2M5 Certificates in clause
(ii)(B)(6) above and to the Class 2M6 Certificates in clause (ii)(B)(7) above
and (y) the Class 2B1 Principal Distribution Amount, until their Class
Certificate Balance has been reduced to zero;
93
(9)to
the
Class 2B2 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above, to the Class 2M1 Certificates in clause
(ii)(B)(2) above, to the Class 2M2 Certificates in clause (ii)(B)(3) above,
to
the Class 2M3 Certificates in clause (ii)(B)(4) above, to the Class 2M4
Certificates in clause (ii)(B)(5) above, to the Class 2M5 Certificates in clause
(ii)(B)(6) above, to the Class 2M6 Certificates in clause (ii)(B)(7) above
and
to the Class 2B1 Certificates in clause (ii)(B)(8) above and (y) the Class
2B2
Principal Distribution Amount, until their Class Certificate Balance has been
reduced to zero; and
(10)to
the
Class 2B3 Certificates, the lesser of (x) the excess of (i) the Group II
Principal Distribution Amount over (ii) the amount distributed to the Class
2A
Certificates in clause (ii)(B)(1) above, to the Class 2M1 Certificates in clause
(ii)(B)(2) above, to the Class 2M2 Certificates in clause (ii)(B)(3) above,
to
the Class 2M3 Certificates in clause (ii)(B)(4) above, to the Class 2M4
Certificates in clause (ii)(B)(5) above, to the Class 2M5 Certificates in clause
(ii)(B)(6) above, to the Class 2M6 Certificates in clause (ii)(B)(7) above,
to
the Class 2B1 Certificates in clause (ii)(B)(8) above and to the Class 2B2
Certificates in clause (ii)(B)(9) above and (y) the Class 2B3 Principal
Distribution Amount, until their Class Certificate Balance has been reduced
to
zero.
(iii)from
the
Available Funds (with respect to the Group II Mortgage Loans) remaining after
the distributions in clauses (a)(i) and (a)(ii) above, the following amounts
shall be distributed in the following order of priority:
(A) if
and to
the extent that the Group II Interest Remittance Amounts distributed pursuant
to
clauses (a)(i) and (a)(ii) above were insufficient to make full distributions
in
respect of interest set forth in such clauses, (x) to the holders of each Class
of Class 2A Certificates, any unpaid Accrued Certificate Interest and any Unpaid
Interest Amounts, pro
rata
among
such Classes based on their respective entitlement to those amounts, and then
(y) to the holders of each Class of the Class 2M and Class 2B Certificates,
any
unpaid Accrued Certificate Interest, in the order of priority for such classes
set forth in clause (i) above;
(B) to
the
holders of the Class 2M1 Certificates, any Unpaid Interest Amount for such
Class;
(C) to
the
holders of the Class 2M2 Certificates, any Unpaid Interest Amount for such
Class;
94
(D) to
the
holders of the Class 2M3 Certificates, any Unpaid Interest Amount for such
Class;
(E) to
the
holders of the Class 2M4 Certificates, any Unpaid Interest Amount for such
Class;
(F) to
the
holders of the Class 2M5 Certificates, and Unpaid Interest Amount for such
Class;
(G) to
the
holders of the Class 2M6 Certificates, and Unpaid Interest Amount for such
Class;
(H) to
the
holders of the Class 2B1 Certificates, any Unpaid Interest Amount for such
Class;
(I) to
the
holders of the Class 2B2 Certificates, any Unpaid Interest Amount for such
Class;
(J) to
the
holders of the Class 2B3 Certificates, any Unpaid Interest Amount for such
Class;
(K) to
the
Excess Reserve Fund Account, the amount of any Basis Risk Payment (without
regard to Net Swap Receipt Amounts) for such Distribution Date;
(L) from
funds on deposit in the Excess Reserve Fund Account allocated to the Group
II
Certificates with respect to that Distribution Date, an amount equal to any
Basis Risk Carry Forward Amount with respect to the Group II Principal
Certificates for that Distribution Date in the same order and priority in which
Accrued Certificate Interest is allocated among those Classes of Group II
Certificates, with the allocation to the Class 2A Certificates being
pro
rata
based on
their respective Class Certificate Balances; provided, however, for any
Distribution Date, after the remaining Basis Risk Carry Forward Amount for
any
of the Class 2A Certificates has been reduced to zero, any remaining Basis
Risk
Carry Forward Amount that would have been allocated to such Class 2A
Certificates for that Distribution Date will be allocated, pro
rata,
to the
remaining Class 2A Certificates based on their respective remaining unpaid
Basis
Risk Carry Forward Amounts;
(M) to
the
Supplemental Interest Trust, the amount of any Defaulted Swap Termination
Payment owed to the Swap Provider;
(N) if
a
40-Year Trigger Event is in effect, then any remaining amounts will be
distributed first, to the Class 2A Certificates, allocated in the order of
priority for such Classes set forth in clauses (a)(i) and (a)(ii) above, and
then sequentially to the Class 2M1, Class 2M2, Class, M3, Class 2M4, Class
2M5,
Class 2M6, Class 2B1, Class 2B2, Class 2B3 and Class 2B4 Certificates, the
lesser of (x) any remaining amounts and (y) the amount necessary to increase
the
actual Overcollateralized Amount (solely with respect to the Group II
Certificates) for such Distribution Date so the 40-Year Trigger Event is no
longer in effect, in each case, until their respective Class Certificate
Balances have been reduced to zero;
95
(O) to
the
holders of the Class 2X Certificates, the remainder of the Class 2X
Distributable Amount not distributed pursuant to Section 4.02(a)(iii)(A)-(N);
and
(P) to
the
holders of the Class 2R, Class 2RC and Class 2RX Certificates, pro
rata,
any
remaining amount.
(b)On
each
Distribution Date, all amounts representing Prepayment Premiums from the Group
II Mortgage Loans received during the related Principal Prepayment Period shall
be distributed by the Securities Administrator to the holders of the Class
2P
Certificates.
(c)Notwithstanding
the foregoing description of allocation of principal distributions to the Class
2A Certificates, from and after the Distribution Date on which the aggregate
Class Certificate Balance of the Class 2M1, Class 2M2, Class 2M3, Class 2M4,
Class 2M5, Class 2M6, Class 2B1, Class 2B2 and Class 2B3 Certificates and the
Overcollateralized Amount with respect to the Group II Certificates have been
reduced to zero, any principal distributions allocated to the Class 2A
Certificates are required to be allocated pro rata to the Class 2A Certificates,
based on their respective Class Certificate Balances, until their respective
Class Certificate Balances have been returned to zero, with the exception that
if a Group II Sequential Trigger Event is in effect, (A) principal distributions
to the Class 2A1A and Class 2A1B Certificates will be allocated first to the
Class 2A1A Certificates, until its Class Certificate Balance has been reduced
to
zero and then to the Class 2A1B Certificates, until its Class Certificate
Balance has been reduced to zero, (B) principal distributions to the Class
2A2A
and Class 2A2B Certificates will be allocated first to the Class 2A2A
Certificates, until its Class Certificate Balance has been reduced to zero
and
then to the Class 2A2B Certificates, until its Class Certificate Balance has
been reduced to zero, and (C) principal distributions to the Class 2A3A and
Class 2A3B Certificates will be allocated first to the Class 2A3A Certificates,
until its Class Certificate Balance has been reduced to zero and then to the
Class 2A3B Certificates, until its Class Certificate Balance has been reduced
to
zero.
(d)On
any
Distribution Date, any Relief Act Interest Shortfalls and Net Prepayment
Interest Shortfalls with respect to the Group II Certificates for such
Distribution Date shall be allocated first to excess interest on the Group
II
Mortgage Loans for the related Distribution Date and thereafter, pro
rata,
as a
reduction of the Accrued Certificate Interest for the Class 2A, Class 2M and
Class 2B Certificates, based on the Accrued Certificate Interest to which such
Classes would otherwise be entitled on such Distribution Date.
Upon
any
exercise of the purchase option set forth in Section 11.01, the Securities
Administrator shall distribute to the holders of the Class 2RC Certificates
any
amounts required to be distributed on the Class 2RC Certificates pursuant to
Section 11.03.
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Section
4.03Monthly
Statements to Certificateholders.
(a) Not
later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Depositor, the Trustee and each Rating
Agency a statement based, in part, upon the information provided by the
Servicers setting forth with respect to the related distribution:
(i)the
amount thereof allocable to principal with respect to each Group of
Certificates, separately identifying the aggregate amount of any Principal
Prepayments and Liquidation Proceeds included therein;
(ii)the
amount thereof allocable to interest with respect to each Group of Certificates,
any Unpaid Interest Amounts included in such distribution and any remaining
Unpaid Interest Amounts for such Group after giving effect to such distribution,
any Basis Risk Carry Forward Amounts for such Group for such Distribution Date
and the amount of all Basis Risk Carry Forward Amounts for such Group covered
by
withdrawals from the Excess Reserve Fund Account and, solely with respect to
the
Group II Certificates, the Supplemental Interest Trust on such Distribution
Date;
(iii)if
the
distribution to the Holders of such Class of Certificates is less than the
full
amount that would be distributable to such Holders if there were sufficient
funds available therefor, the amount of the shortfall and the allocation thereof
as between principal and interest, including any Basis Risk Carry Forward Amount
not covered by amounts in the Excess Reserve Fund Account and, solely with
respect to the Group II Certificates, the Supplemental Interest
Trust;
(iv)the
Class
Certificate Balance of each Class of Certificates and the notional amount of
the
Class 1P and Class 2P Certificates after giving effect to the distribution
of
principal on such Distribution Date;
(v)the
aggregate Stated Principal Balance of each Group of Mortgage Loans for the
following Distribution Date;
(vi)the
amount of expenses and fees paid or retained by the Servicers, the Master
Servicer or the Securities Administrator with respect thereto
(vii)the
Pass-Through Rate for each such Class of Certificates with respect to such
Distribution Date;
(viii)the
amount of P&I Advances included in the distribution on such Distribution
Date and the aggregate amount of P&I Advances reported by the Servicers (and
the Master Servicer, the Trustee as successor master servicer and any other
successor master servicer, if applicable) as outstanding as of the close of
business on the Determination Date immediately preceding such Distribution
Date;
(ix)the
number and aggregate outstanding principal balances of Mortgage Loans (1) as
to
which the Monthly Payment is delinquent 31 to 60 days, 61 to 90 days and 91
or
more days (each to be calculated using the OTS method), (2) that have become
REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in each
case as of the close of business on the last Business Day of the immediately
preceding month;
97
(x)with
respect to all Mortgage Loans of each Group that became REO Properties during
the preceding calendar month, the aggregate number of such Mortgage Loans for
each Group and the Stated Principal Balance of such Mortgage Loans as of the
close of business on the Determination Date preceding such Distribution
Date;
(xi)the
total
number and principal balance of any REO Properties related to each Group (and
market value, if available) as of the close of business on the Determination
Date preceding such Distribution Date;
(xii)whether
a
Trigger Event has occurred and is continuing with respect to any Group of
Mortgage Loans (including the calculation demonstrating the existence of the
Trigger Event and the aggregate outstanding balance of all 60+ Day Delinquent
Mortgage Loans of the related Group);
(xiii)the
amount on deposit in the Excess Reserve Fund Account allocated to each Group
of
Certificates (after giving effect to distributions on such Distribution
Date);
(xiv)in
the
aggregate and for each Class of Certificates, the aggregate amount of Applied
Realized Loss Amounts incurred during the preceding calendar month and aggregate
Applied Realized Loss Amounts through such Distribution Date;
(xv)the
amount of any Net Monthly Excess Cash Flow on such Distribution Date and the
allocation thereof to the Certificateholders of each Group with respect to
Unpaid Interest Amounts for such Group of Certificates;
(xvi)the
Overcollateralized Amount and Specified Overcollateralized Amount with respect
to each Group of Mortgage Loans and the related Group of
Certificates;
(xvii)the
Prepayment Premiums collected by or paid by the Servicers with respect to each
Group of Mortgage Loans;
(xviii)the
percentage equal to the aggregate realized losses divided by the aggregate
Stated Principal Balance for each Group of Mortgage Loans as of the Cut-off
Date;
(xix)the
amount distributed on the Class 1X, Class 2X, Class 1P and Class 2P
Certificates;
(xx)the
amount of any Subsequent Recoveries allocated to each Group of Mortgage Loans
for such Distribution Date;
(xxi)the
Record Date for such Distribution Date and each Class of
Certificates;
(xxii)updated
Mortgage Loan information for each Group, such as weighted average interest
rate, and weighted average remaining term; and
98
(xxiii)information
concerning Servicer modifications.
(b)The
Securities Administrator’s responsibility for providing the above statement to
the Certificateholders, each Rating Agency, the Trustee and the Depositor is
limited to the availability, timeliness and accuracy of the information derived
from the Master Servicer, the Servicers and the Responsible Parties. The
Securities Administrator shall provide the above statement via the Securities
Administrator’s internet website. Assistance in using the website can be
obtained by calling the Securities Administrator’s investor relations desk at
(000) 000-0000. The Securities Administrator will also make a paper copy of
the
above statement available upon request.
(c)Upon
request, within a reasonable period of time after the end of each calendar
year,
the Securities Administrator shall cause to be furnished to each Person who
at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii), (a)(iii) and
(a)(vii) of this Section 4.03 aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Securities Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Securities Administrator pursuant to any requirements of the
Code as from time to time in effect.
The
Securities Administrator shall be entitled to rely on information provided
by
third parties for purposes of preparing the foregoing report, but shall not
be
responsible for the accuracy of such information.
Section
4.04Allocation
of Applied Realized Loss Amounts.
Any
Applied Realized Loss Amounts for any Group of Mortgage Loans will be allocated
to the most junior Class of Subordinated Certificates of the related Group
then
outstanding in reduction of the Class Certificate Balance thereof. In the event,
Applied Realized Loss Amounts are allocated to any Class of Certificates, their
Class Certificate Balance shall be reduced by the amount so allocated and no
funds shall be distributed with respect to the written down amounts or with
respect to interest or Basis Risk Carry Forward Amounts for such Group of
Certificates on the written down amounts on that Distribution Date or any future
Distribution Dates, even if funds are otherwise available therefor.
Notwithstanding
the foregoing, the Class Certificate Balance of each Class of Subordinated
Certificates that has been previously reduced by Applied Realized Loss Amounts
will be increased, in the order of seniority, by the amount of the Subsequent
Recoveries (but not in excess of the Applied Realized Loss Amount allocated
to
the applicable Class of Subordinated Certificates).
Section
4.05Certain
Matters Relating to the Determination of LIBOR.
LIBOR
shall be calculated by the Securities Administrator in accordance with the
definition of “LIBOR.”
Until
all of the LIBOR Certificates are paid in full, the Securities Administrator
will at all times retain at least four (4) Reference Banks for the purpose
of
determining LIBOR with respect to each LIBOR Determination Date. The Securities
Administrator initially shall designate the Reference Banks (after consultation
with the Depositor). Each “Reference
Bank”
shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or
be
under common control with, the Securities Administrator and shall have an
established place of business in London. If any such Reference Bank should
be
unwilling or unable to act as such or if the Securities Administrator should
terminate its appointment as Reference Bank, the Securities Administrator shall
promptly appoint or cause to be appointed another Reference Bank (after
consultation with the Depositor). The Securities Administrator shall have no
liability or responsibility to any Person for (i) the selection of any Reference
Bank for purposes of determining LIBOR or (ii) any inability to retain at least
four Reference Banks which is caused by circumstances beyond its reasonable
control.
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The
Pass-Through Rate for each Class of LIBOR Certificates for each Interest Accrual
Period shall be determined by the Securities Administrator on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Securities Administrator shall not have any liability
or responsibility to any Person for its inability, following a good faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided
for
in this Section 4.05 and the definition of LIBOR. The establishment of LIBOR
and
each Pass-Through Rate for the LIBOR Certificates by the Securities
Administrator shall (in the absence of manifest error) be final, conclusive
and
binding upon each Holder of a Certificate and the Trustee.
Section
4.06Supplemental
Interest Trust.
On the
Closing Date, the Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, the
Supplemental Interest Trust and Deutsche Bank National Trust Company is hereby
appointed as Supplemental Interest Trust Trustee in accordance with the
provisions of this Agreement. On the Closing Date, the Securities Administrator
on behalf of the Supplemental Interest Trust shall establish and maintain in
its
name a separate non-interest bearing trust account (the “Supplemental
Interest Trust Account”),
which
will be a separate account, for the benefit of the Holders of the Certificates
as a part of the Supplemental Interest Trust. The Supplemental Interest Trust
shall hold the Interest Rate Swap Agreement. The Supplemental Interest Trust
Account shall be an Eligible Account, and funds on deposit therein shall be
held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee held pursuant to
this
Agreement.
On
any
Distribution Date, Swap Termination Payments, Net Swap Payment Amounts owed
to
the Swap Provider and Net Swap Receipt Amounts for that Distribution Date will
be deposited into the Supplemental Interest Trust. Funds in the Supplemental
Interest Trust will be distributed in the following order of
priority:
(i)to
the
Swap Provider, the sum of (x) all Net Swap Payment Amounts and (y) any Swap
Termination Payment, other than a Defaulted Swap Termination Payment, to the
Swap Provider, if any, owed for that Distribution Date;
(ii)to
the
holders of the Group II Certificates, to pay Accrued Certificate Interest and,
if applicable, any Unpaid Interest Amounts as described in clause (i) of Section
4.02(a), to the extent unpaid from other Available Funds (solely with respect
to
the Group II Certificates);
100
(iii)to
the
holders of the Group II Certificates, to pay principal as described in clause
(ii)(A) and clause (ii)(B) of Section 4.02(a), but only to the extent necessary
to maintain the Overcollateralized Amount at the Specified Overcollateralized
Amount as a result of current of prior Realized Losses not previously
reimbursed, after giving effect to payments and distributions from other
Available Funds (solely with respect to the Group II Certificates);
(iv)to
the
holders of the Group II Certificates, to pay Unpaid Interest Amounts and Basis
Risk Carry Forward Amounts as described in clauses (iii)(A) through (iii)(I)
and
clauses (iii)(K) through (iii)(L) of Section 4.02(a), to the extent unpaid
from
other Available Funds (solely with respect to the Group II Certificates)
(including funds on deposit in the Excess Reserve Fund Account);
(v)to
the
Swap Provider, any Defaulted Swap Termination Payment owed to the Swap Provider
for that Distribution Date; and
(vi)to
the
holders of the Class 2X Certificates, any remaining amounts.
Upon
termination of the Trust, any amounts remaining in the Supplemental Interest
Trust shall be distributed pursuant to the priorities set forth in this Section
4.06.
The
Securities Administrator shall account for the Supplemental Interest Trust
as an
asset of a grantor trust under subpart E, Part I of subchapter J of the Code
and
not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Supplemental Interest Trust are the Class 2X
Certificateholders. For federal income tax purposes, Net Swap Payment Amounts
and Swap Termination Payments payable to the Swap Provider shall be deemed
to be
paid to the Supplemental Interest Trust first, by the Holder of the Class 2X
Certificates and second, other than any Defaulted Swap Termination Payment,
from
the Group II Upper-Tier REMIC by the Holders of the applicable Class or Classes
of Group II Certificates as and to the extent provided in Section
8.14.
Any
Tax
Basis Risk Carry Forward Amounts (defined solely for this purpose as any excess
of monies received for such Distribution Date over the Group II REMIC Cap)
distributed by the Securities Administrator to the Group II Principal
Certificateholders shall be accounted for by the Securities Administrator,
for
federal income tax purposes, as amounts paid first to the Holders of the Class
2X Certificates and (to the extent remaining after payments to the Swap
Provider) then to the respective Class or Classes of Group II Certificates.
In
addition, the Securities Administrator shall account for the rights of Holders
of each Class of Group II Principal Certificates to receive payments of Tax
Basis Risk Carry Forward Amounts (defined solely for this purpose as any excess
of monies received for such Distribution Date over the Group II REMIC Cap)
from
the Supplemental Interest Trust (along with Tax Basis Risk Carry Forward Amounts
(defined solely for this purpose as any excess of monies received for such
Distribution Date over the Group II REMIC Cap) payable from the Excess Reserve
Fund Account with respect to the Group II Certificates) as rights in a separate
limited recourse interest rate cap contract written by the Class 2X
Certificateholders in favor of Holders of each such Class.
101
The
Supplemental Interest Trust shall be an “outside reserve fund” for federal
income tax purposes and will not be an asset of any Group II Trust REMIC.
Furthermore, the Holders of the Class 2X Certificates shall be the beneficial
owners of the Supplemental Interest Trust for all federal income tax purposes,
and shall be taxable on all income earned thereon.
Section
4.07Trust’s
Obligations under the Interest Rate Swap Agreement; Replacement and Termination
of the Interest Rate Swap Agreement.
(a) Upon
the
Securities Administrator obtaining actual knowledge of the rating of the Swap
Provider falling below the Required Hedge Counterparty Rating (as defined in
the
Interest Rate Swap Agreement), the Securities Administrator, acting at the
written direction of the Depositor, shall attempt to negotiate an ISDA Credit
Support Annex (as defined in the Interest Rate Swap Agreement) with the Swap
Provider that meets the terms of the Interest Rate Swap Agreement. If an ISDA
Credit Support Annex is negotiated, the Securities Administrator, acting at
the
written direction of the Depositor, shall set up an account in accordance with
Section 3.01(c) to hold cash or other eligible investments pledged under such
ISDA Credit Support Annex. Any cash or other eligible investments pledged under
an ISDA Credit Support Annex shall not be part of the Distribution Account,
the
Excess Reserve Fund Account or the Supplemental Interest Trust unless they
are
applied in accordance with such ISDA Credit Support Annex to make a payment
due
to the Trust pursuant to the Interest Rate Swap Agreement.
(b) Upon
the
Securities Administrator obtaining actual knowledge of an Event of Default
(as
defined in the Interest Rate Swap Agreement) or Termination Event (as defined
in
the Interest Rate Swap Agreement) for which the Trust has the right to designate
an Early Termination Date (as defined in the Interest Rate Swap Agreement),
the
Securities Administrator will act at the written direction of the Depositor
as
to whether it will designate an Early Termination Date; provided,
however,
that
the Securities Administrator, on behalf of the Trust, shall provide written
notice to each Rating Agency following the Event of Default or Termination
Event. Upon the termination of the Interest Rate Swap Agreement under the
circumstances contemplated by this Section 4.07(b), the Securities
Administrator, on behalf of the Trust, shall use its reasonable best efforts
to
enforce the rights of the Trust and the Trustee thereunder as may be permitted
by the terms of the Interest Rate Swap Agreement and consistent with the terms
hereof, and shall apply the proceeds of any such efforts to enter into a
replacement interest rate swap agreement with another swap provider. To the
extent such replacement interest rate swap agreement can be entered into, any
termination payments received by the Trust in respect of the terminated interest
rate swap agreement shall be used, to the extent necessary, by the Trust for
the
purpose of entering into such replacement interest rate swap
agreement.
(c) Notwithstanding
all other provisions in this Agreement, in the event that the Supplemental
Interest Trust, at the direction of the Depositor, enters into a replacement
interest rate swap agreement and the Supplemental Interest Trust is entitled
to
receive a payment from a replacement swap provider (such payment, a
“Replacement
Swap Provider Payment”),
the
Securities Administrator on behalf of the Supplemental Interest Trust shall
deposit such Replacement Swap Provider Payment into the Supplemental Interest
Trust Account and pay to the Swap Provider the lesser of (x) the amount so
received and (y) any Swap Termination Payment owed to the Swap Provider (to
the
extent not already paid by the Supplemental Interest Trust) that is being
replaced immediately upon receipt of the Replacement Swap Provider Payment,
regardless of whether the date of receipt thereof is a Distribution Date;
provided
that to
the extent that the Replacement Swap Provider Payment is less than the Swap
Termination Payment owed to the Swap Provider that is being replaced, any
remaining amounts will be paid to the Swap Provider on the subsequent
Distribution Date (unless the Replacement Swap Provider Payment is paid to
the
Swap Provider on a Distribution Date, in which case such remaining amounts
will
be paid on such Distribution Date) in accordance with Section 4.06
of this
Agreement. For the avoidance of doubt, the parties agree that the Swap Provider
shall have first priority to any Replacement Swap Provider Payment (to the
extent that the Swap Provider is owed a Swap Termination Payment from the
Supplemental Interest Trust) over the payment of all or any portion of such
Replacement Swap Provider Payment by the Trust or the Supplemental Interest
Trust to Certificateholders, the Servicer, the Trustee or any other
Person.
102
(d) The
Securities Administrator or Trustee shall deliver or cause to be delivered
the
federal taxpayer identification number of the Supplemental Interest Trust on
a
correct, complete and duly executed IRS Form W-9 of the Supplemental Interest
Trust to the Swap Provider promptly after execution of the Interest Rate Swap
Agreement but no later than the first Distribution Date and thereafter, promptly
upon actual knowledge of a Responsible Officer of the Securities Administer
that
such previously provided form is obsolete or incorrect and, if requested by
the
Swap Provider, an applicable IRS Form W-8IMY.
ARTICLE
V
THE
CERTIFICATES
Section
5.01The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount) and aggregate denominations
per Class set forth in the Preliminary Statement.
The
Depositor hereby directs the Securities Administrator to register the Class
1X,
Class 2X, Class 1P and Class 2P Certificates in the name of the Depository
Trust
Company or its designee. On a date as to which the Depositor notifies the
Securities Administrator, the Depositor hereby directs the Securities
Administrator to transfer the Class 1X, Class 2X, Class 1P and Class 2P
Certificates in the name of the NIM Trustee or such other name or names as
the
Depositor shall request, and to deliver the Class 1X, Class 2X, Class 1P and
Class 2P Certificates to the NIM Trustee, or to such other person or persons
as
the Depositor shall request.
Subject
to Section 11.03 respecting the final distribution on the Certificates, on
each
Distribution Date the Securities Administrator shall make distributions to
each
Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a
bank
or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Securities
Administrator or (y) in the event that no wire instructions are provided to
the
Securities Administrator, by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
103
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Securities Administrator by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that
such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such office
at the date of such Certificate. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless authenticated by
the
Securities Administrator by manual signature, and such authentication upon
any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their authentication. On the Closing Date, the
Securities Administrator shall authenticate the Certificates to be issued at
the
direction of the Depositor, or any affiliate thereof.
Section
5.02Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The
Securities Administrator shall maintain, in accordance with the provisions
of
Section 5.06, a Certificate Register for the Trust Fund in which, subject to
the
provisions of subsections (b) and (c) below and 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. Upon surrender for registration of transfer of any Certificate,
the Securities Administrator shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever
any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by
a
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing. In the event, the Depositor or an Affiliate transfers
the
Class 1X or Class 2X Certificates, or a portion thereof, to another Affiliate,
it shall notify the Securities Administrator in writing of the affiliated status
of the transferee. The Securities Administrator shall have no liability
regarding the lack of notice with respect thereto.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but 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 may be required.
104
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator’s customary
procedures.
(b)No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. Except with respect to (i) the
initial transfer of the Class 1X, Class 2X, Class 1P or Class 2P Certificates
on
the Closing Date, (ii) the transfer of the Class 1X, Class 2X, Class 1P or
Class
2P Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer of
the
Class 1X, Class 2X, Class 1P or Class 2P Certificates to the Depositor or any
Affiliate of the Depositor, in the event that a transfer of a Private
Certificate which is a Physical Certificate is to be made in reliance upon
an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer shall certify to the Securities Administrator in writing the
facts
surrounding the transfer in substantially the form set forth in Exhibit
H
(the
“Transferor
Certificate”)
and
either (i) there shall be delivered to the Securities Administrator a letter
in
substantially the form of Exhibit
I
(the
“Rule
144A Letter”)
or
(ii) there shall be delivered to the Securities Administrator at the expense
of
the transferor an Opinion of Counsel that such transfer may be made without
registration under the Securities Act. In the event that a transfer of a Private
Certificate which is a Book-Entry Certificate is to be made in reliance upon
an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect
of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any 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 Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Securities Administrator
shall cooperate with the Depositor in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Depositor
such
information regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet
its
obligation under the preceding sentence. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor and each Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
Except
with respect to (i) the initial transfer of the Class 1X, Class 2X, Class 1P
or
Class 2P Certificates on the Closing Date, (ii) the transfer of the Class 1X,
Class 2X, Class 1P or Class 2P Certificates to the NIM Issuer or the NIM Trustee
or (iii) a transfer of the Class 1X, Class 2X, Class 1P or Class 2P Certificates
to the Depositor or any Affiliate of the Depositor, no transfer of an
ERISA-Restricted Certificate shall be made unless the Securities Administrator
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the
Securities Administrator (in the event such Certificate is a Private Certificate
or a Residual Certificate, such requirement is satisfied only by the Securities
Administrator’s receipt of a representation letter from the transferee
substantially in the form of Exhibit
G),
to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code
or a
plan subject to any Federal, state or local law (“Similar
Law”)
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets
of
any such plan or arrangement to effect such transfer (each such investor a
“Plan”),
(ii)
in the case of an ERISA-Restricted Certificate (other than a Residual
Certificate) that has been the subject of an ERISA-Qualifying Underwriting,
a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption (“PTCE”)
95-60)
and that the purchase and holding of such Certificates satisfy the requirements
for exemptive relief under Sections I and III of PTCE 95-60 or (iii) in the
case
of any ERISA-Restricted Certificate presented for registration in the name
of an
employee benefit plan subject to Title I of ERISA, a plan or arrangement subject
to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a plan subject to Similar Law, or a trustee of any such plan
or
any other person acting on behalf of any such plan or arrangement or using
such
plan’s or arrangement’s assets, an Opinion of Counsel satisfactory to the
Securities Administrator and the Depositor, which Opinion of Counsel shall
not
be an expense of the Trustee, the Depositor, the Securities Administrator or
the
Trust Fund, addressed to the Securities Administrator and the Depositor, to
the
effect that the purchase and holding of such ERISA-Restricted Certificate will
not constitute or result in a non-exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Trustee, the Depositor, the Master Servicer, any other servicer
or
the Securities Administrator to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Private
Certificate or a Residual Certificate, in the event the representation letter
referred to in the preceding sentence is not furnished, such representation
shall be deemed to have been made to the Securities Administrator by the
transferee’s (including an initial acquirer’s) acceptance of the
ERISA-Restricted Certificates. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject
to
Section 406 of ERISA, a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, without such
Opinion of Counsel, such attempted transfer or acquisition shall be void and
of
no effect.
105
During
the period the Supplemental Interest Trust is in effect, no transfer of a Group
II Certificate shall be made unless the Securities Administrator shall have
received either (i) a representation from the transferee of such Group II
Certificate acceptable to and in form and substance satisfactory to the
Securities Administrator to the effect that such transferee is not a Plan,
or
(ii) a representation that the purchase and holding of the Certificate satisfy
the requirements for exemptive relief under PTCE 84-14, PTCE 90-1, PTCE 91-38,
PTCE 95-60, PTCE 96-23 or a similar exemption, or in the case of a Plan subject
to Similar Law, will not constitute a non-exempt violation of such Similar
Law.
In the event such a representation letter is not delivered, one of the foregoing
representations, as appropriate, shall be deemed to have been made by the
transferee’s (including an initial acquirer’s) acceptance of the Group II
Certificate. In the event that such representation is violated, such transfer
or
acquisition shall be void and of no effect.
106
The
Residual Certificates may not be sold to any employee benefit plan subject
to
Title I of ERISA, any plan subject to Section 4975 of the Code, or any plan
subject to any Similar Law or any person investing on behalf of or with plan
assets of such plan.
The
Securities Administrator shall have no duty to monitor transfers of beneficial
interests in any Book-Entry Certificate and shall not be under liability to
any
Person for any registration of transfer of any ERISA Restricted Certificate
that
is in fact not permitted by this Section 5.02(b) or for making any payments
due
on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with
the
foregoing requirements.
(c)Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i)Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee;
(ii)No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
subparagraph (b) above, the Securities Administrator shall have been furnished
with an affidavit (a “Transfer
Affidavit”)
of the
initial owner or the proposed transferee in the form attached hereto as
Exhibit
G;
(iii)Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in a
Residual Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee;
(iv)Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. Neither the Securities Administrator nor the Trustee shall have
any
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this Section
5.02(c) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement. The Securities Administrator shall be entitled but not obligated
to recover from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such subsequent
time
as it became other than a Permitted Transferee, all payments made on such
Residual Certificate at and after either such time. Any such payments so
recovered by the Securities Administrator shall be paid and delivered by the
Securities Administrator to the last preceding Permitted Transferee of such
Certificate; and
107
(v)The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Securities Administrator, all information necessary to compute
any tax imposed under Section 860E(e) of the Code as a result of a Transfer
of
an Ownership Interest in a Residual Certificate to any Holder who is not a
Permitted Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this Section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Residual Certificate may be deleted) with respect to Transfers occurring after
delivery to the Securities Administrator of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, or the
Securities Administrator, to the effect that the elimination of such
restrictions will not cause any Trust REMIC to fail to qualify as a REMIC at
any
time that the Certificates are outstanding or result in the imposition of any
tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Securities Administrator, is reasonably necessary
(a)
to ensure that the record ownership of, or any beneficial interest in, a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d)The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of the
parties to such transfers.
(e)Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times: (i) registration
of the Certificates may not be transferred by the Securities Administrator
except to another Depository; (ii) the Depository shall maintain book entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Book-Entry Certificates; (iii) ownership and transfers of
registration of the Book-Entry Certificates on the books of the Depository
shall
be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee and the Securities Administrator
shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
and the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
108
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
If
(x)
(i) the Depository or the Depositor advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Securities Administrator or
the
Depositor is unable to locate a qualified successor, or (y) the Depositor
notifies the Depository of its intent to terminate the book entry system through
the Depository, the Depository Participants holding beneficial interests in
the
Book-Entry Certificates agree to initiate such termination, the Securities
Administrator shall notify all Certificate Owners, through the Depository,
of
the occurrence of any such event and of the availability of definitive, fully
registered Certificates (the “Definitive
Certificates”)
to
Certificate Owners requesting the same. Upon surrender to the Securities
Administrator of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. Neither the
Depositor nor the Securities Administrator shall be liable for any delay in
delivery of such instruction and each may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide the
Securities Administrator with an adequate inventory of Certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon
and
performed by the Securities Administrator, to the extent applicable with respect
to such Definitive Certificates and the Securities Administrator shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder;
provided,
that
the Securities Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f)Each
Private Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Securities Administrator, duly executed
by
the Certificateholder or his attorney duly authorized in writing. Each
Certificate presented or surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Securities Administrator
in accordance with its customary practice. No service charge shall be made
for
any registration of transfer or exchange of Private 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 Private Certificates.
109
Section
5.03Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate is surrendered to the Securities Administrator, or
the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the
Depositor, the Trustee and the Securities Administrator such security or
indemnity as may be required by them to hold each of them harmless, then, in
the
absence of notice to the Securities Administrator that such Certificate has
been
acquired by a protected purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator may require the payment
of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete
and
indefeasible evidence of ownership, as if originally issued, whether or not
the
lost, stolen or destroyed Certificate shall be found at any time.
Section
5.04Persons
Deemed Owners.
The
Trustee, the Depositor, the Securities Administrator and any agent of the
Depositor, the Securities Administrator or the Trustee may treat the Person
in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for
all
other purposes whatsoever, and none of the Trustee, the Securities
Administrator, the Depositor or any agent of the Depositor, the Securities
Administrator or the Trustee shall be affected by any notice to the
contrary.
Section
5.05Access
to List of Certificateholders’ Names and Addresses.
If (3)
three or more Certificateholders (a) request such information in writing from
the Securities Administrator, (b) state that such Certificateholders desire
to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or a Servicer shall request such information in writing from the
Securities Administrator, then the Securities Administrator shall, within ten
(10) Business Days after the receipt of such request, provide the Depositor,
such Servicer or such Certificateholders at such recipients’ expense the most
recent list of the Certificateholders of such Trust Fund held by the Securities
Administrator, if any. The Depositor and every Certificateholder, by receiving
and holding a Certificate, agree that the Securities Administrator shall not
be
held accountable by reason of the disclosure of any such information as to
the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
Section
5.06Maintenance
of Office or Agency.
The
Securities Administrator will maintain or cause to be maintained at its expense
an office or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange. The Securities Administrator initially
designates its Corporate Trust Office for such purposes. The Securities
Administrator will give prompt written notice to the Certificateholders of
any
change in such location of any such office or agency.
110
ARTICLE
VI
THE
DEPOSITOR
Section
6.01Liabilities
of the Depositor.
The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by it
herein.
Section
6.02Merger
or Consolidation of the Depositor.
The
Depositor will keep in full effect its existence, rights and franchises as
a
corporation or federally chartered savings bank, as the case may be, under
the
laws of the United States or under the laws of one of the states thereof and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or
any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any
Person into which the Depositor may be merged or consolidated, or 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, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section
6.03Limitation
on Liability of the Depositor and Others.
Neither
the Depositor nor any of its directors, officers, employees or agents shall
be
under any liability to the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Depositor or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor or any such Person from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor and any director, officer, employee or agent
of
the Depositor may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor and any director, officer, employee or agent of the
Depositor shall be indemnified by the Trust Fund and held harmless against
any
loss, liability or expense incurred in connection with any audit, controversy
or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Depositor shall not be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided,
however,
that
the Depositor may in its discretion undertake any such action (or direct the
Trustee to undertake such actions for the benefit of the Certificateholders)
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund and the Depositor (or the Trustee to the extent
it
has been directed by the Depositor to undertake such actions) shall be entitled
to be reimbursed therefor out of the Distribution Account.
111
Section
6.04Servicing
Compliance Review.
Promptly upon receipt from each Servicer of its annual statement of compliance
and accountant’s report described in the applicable Step 2 Assignment Agreement
the Master Servicer shall furnish a copy thereof to the Depositor. Promptly
after the Depositor’s receipt thereof, the Depositor shall review the same and,
if applicable, consult with such Servicer as to the nature of any defaults
by
such Servicer in the fulfillment of any of its Servicer’s obligations under the
applicable Servicing Agreement.
Section
6.05Option
to Purchase Defaulted Mortgage Loans.
The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is ninety (90) days or more delinquent. The
purchase price therefor shall be 100% of the unpaid principal balance of such
Mortgage Loan, plus all related accrued and unpaid interest, and the amount
of
any unreimbursed Servicing Advances made by the Servicers or the Master Servicer
related to the Mortgage Loan.
ARTICLE
VII
SERVICER
DEFAULT
Section
7.01Events
of Default.
If an
Event of Default described in any Servicing Agreement shall occur with respect
to the related Servicer then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Master Servicer may, or
at
the direction of Certificateholders entitled to a majority of the Voting Rights
the Master Servicer shall, by notice in writing to the applicable Servicer
(with
a copy to each Rating Agency), terminate all of the rights and obligations
of
such Servicer under the applicable Servicing Agreement and in and to the
Mortgage Loans and the proceeds thereof. The Holders of Certificates evidencing
at least 66% of the Voting Rights of Certificates affected by a Event of Default
may waive such Event of Default; provided,
however,
that
(a) an 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 Event of Default and (b) no such waiver is permitted that
would
materially adversely affect any non consenting Certificateholder. On and after
the receipt by such Servicer of such written notice of termination, all
authority and power of such Servicer hereunder or under the applicable Servicing
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer. The Master Servicer is hereby
authorized and empowered to execute and deliver, on behalf of such Servicer,
as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise.
Section
7.02Master
Servicer to Act; Appointment of Successor.
Within
120 days after the Master Servicer gives, and the applicable Servicer receives
a
notice of termination pursuant to Section 7.01, the Master Servicer shall,
subject to and to the extent provided in Section 7.03, and subject to the rights
of the Master Servicer to appoint a successor Servicer pursuant to this Section
7.02, be the successor to the Servicer in its capacity as servicer under the
applicable Servicing Agreement and the transactions set forth or provided for
herein and in such Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions of such Servicing Agreement and applicable law
including the obligation to make Monthly Advances or Servicing Advances pursuant
to such Servicing Agreement (it being understood and agreed that if any Servicer
fails to make a Monthly Advance or Servicing Advance, the Master Servicer shall
do so unless a determination has been made that such Monthly Advance or
Servicing Advance would constitute a Nonrecoverable Monthly Advance or
Nonrecoverable Servicing Advance, as applicable). As compensation therefor,
the
Master Servicer shall be entitled to all funds relating to the Mortgage Loans
that the Servicer would have been entitled to charge to the Collection Account
if the Servicer had continued to act under the Servicing Agreement including,
if
the Servicer was receiving the Servicing Fee at the Servicing Fee Rate set
forth
in the Servicing Agreement (or, as set forth in the Mortgage Loan Schedule
with
respect to the related Mortgage Loans, as applicable) such Servicing Fee and
the
income on investments or gain related to the Collection Account.
112
Notwithstanding
the foregoing, the Master Servicer may, if it shall be unwilling to so act,
or
shall, if it is prohibited by applicable law from making Monthly Advances and
Servicing Advances pursuant to the applicable Servicing Agreement, or if it
is
otherwise unable to so act, or, at the written request of Certificateholders
entitled to a majority of the Voting Rights, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then current
rating of the Certificates by each Rating Agency, as the successor to such
Servicer under the applicable Servicing Agreement in the assumption of all
or
any part of the responsibilities, duties or liabilities of such Servicer. No
such appointment of a successor to a Servicer hereunder shall be effective
until
the Depositor shall have consented thereto. Any successor to such Servicer
shall
be an institution which is a Xxxxxx Xxx and Freddie Mac approved seller/servicer
in good standing, which has a net worth of at least $25,000,000, which is
willing to service the Mortgage Loans and which executes and delivers to the
Depositor and the Master Servicer an agreement accepting such delegation and
assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of such terminated
Servicer, (other than liabilities of such terminated Servicer incurred prior
to
termination of such Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided,
that
each Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced, as a result of such assignment and delegation. Pending appointment
of a
successor to a Servicer hereunder, the Master Servicer, unless the Master
Servicer is prohibited by law from so acting, shall, subject to this Section
7.02, act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Master Servicer may make such arrangements
for
the compensation of such successor out of payments on Mortgage Loans as it,
the
Depositor and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of the Servicing Fee Rate and amounts
paid
to the Servicer from investments. The Master Servicer and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Master Servicer nor any other
successor to a Servicer shall be deemed to be in default hereunder by reason
of
any failure to make, or any delay in making, any distribution hereunder or
any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure
of
the predecessor Servicer to deliver or provide, or any delay in delivering
or
providing, any cash, information, documents or records to it.
113
Any
successor Servicer shall give notice to the Mortgagors of such change of
Servicer, in accordance with applicable federal and state law, and shall, during
the term of its service as servicer, maintain in force the policy or policies
that each Servicer is required to maintain pursuant to the applicable Servicing
Agreement.
Notwithstanding
the foregoing, the Master Servicer may not terminate a Servicer without
cause.
Section
7.03Master
Servicer to Act as Servicer.
In the
event that a Servicer shall for any other reason no longer be the Servicer,
the
Master Servicer or another successor Servicer, shall thereupon assume all of
the
rights and obligations of the predecessor Servicer hereunder arising thereafter
pursuant to Section 7.02.
Section
7.04Notification
to Certificateholders.
(a)
Upon any termination of or appointment of a successor to a Servicer, the
Securities Administrator shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b)Promptly
after the occurrence of any Event of Default, the Securities Administrator
shall
transmit by mail to all Certificateholders and each Rating Agency notice of
each
such Event of Default hereunder known to the Securities Administrator, unless
such Event of Default shall have been cured or waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE AND THE CUSTODIANS
Section
8.01Duties
of the Trustee and the Custodians.
The
Trustee, before the occurrence of a Master Servicer Event of Default and after
the curing of all Master Servicer Events of Default that may have occurred,
shall undertake to perform such duties and only such duties as are specifically
set forth in this Agreement. In case a Master Servicer Event of Default has
occurred and remains uncured, the Trustee shall exercise such of the rights
and
powers vested in it by this Agreement, and use the same degree of care and
skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
The
Trustee and the Custodians, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee or the Custodians, as applicable, that are specifically required
to be furnished pursuant to any provision of this Agreement shall examine them
to determine whether on their face they are in the form required by this
Agreement, or with respect to the documents in the respective Custodial Files
whether they satisfy the review criteria set forth in Section 2.02. Neither
the
Trustee nor the Custodians shall be responsible for the accuracy or content
of
any resolution, certificate, statement, opinion, report, document, order, or
other instrument.
114
No
provision of this Agreement shall be construed to relieve the Trustee or the
Custodians from liability for its own negligent action, its own negligent
failure to act or its own bad faith or willful misfeasance; provided,
however,
that:
(a)unless
a
Master Servicer Event of Default of which a Responsible Officer of the Trustee
obtains actual knowledge has occurred and is continuing, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance
of
the duties and obligations specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee,
and 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 and conforming to the requirements of this Agreement
which it believed in good faith to be genuine and to have been duly executed
by
the proper authorities respecting any matters arising hereunder;
(b)the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c)the
Trustee shall not be liable with respect to any action taken, suffered, or
omitted to be taken by it in good faith in accordance with the direction of
the
Holders of Certificates evidencing not less than 25% of the Voting Rights of
Certificates 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 this Agreement.
Section
8.02Reserved.
Section
8.03Certain
Matters Affecting the Trustee and the Custodians.
Except
as otherwise provided in Section 8.01:
(a)the
Trustee and the Custodians may request and rely upon and shall be protected
in
acting or refraining from acting upon any resolution, Officer’s Certificate,
Opinion of Counsel, 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 and the Trustee and the Custodians
shall have no responsibility to ascertain or confirm the genuineness of any
signature of any such party or parties;
(b)before
taking any action under this Agreement, the Trustee and the Custodians may
consult with counsel, financial advisers or accountants and the advice of any
such counsel, financial advisers or accountants and 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;
(c)the
Trustee and the Custodians 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 this Agreement;
115
(d)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 so to do by Holders of Certificates evidencing
not
less than 25% of the Voting Rights allocated to each Class of Certificates;
provided,
however,
that if
the payment 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 this Agreement, the Trustee may require indemnity
satisfactory to the Trustee against such cost, expense or liability as a
condition to taking any such action. The reasonable expense of every such
examination shall be paid by the applicable Servicer or, if paid by the Trustee,
shall be repaid by the Servicer upon demand from the applicable Servicer’s own
funds;
(e)the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or attorneys
and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agents, accountants or attorneys appointed with due care by it
hereunder;
(f)neither
the Trustee nor the Custodians shall be required to risk or expend its own
funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not assured to
it;
(g)the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement (other than as issuer of the investment security);
(h)unless
a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
a
Master Servicer Event of Default or an Event of Default, the Trustee shall
not
be deemed to have knowledge of a Master Servicer Event of Default or an Event
of
Default, until a Responsible Officer of the Trustee shall have received written
notice thereof;
(i)the
Trustee shall be under no obligation to exercise any of the trusts, rights
or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Certificateholders, pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby;
(j)the
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act;
(k)the
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder;
116
(l)notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to a Servicer’s request of assigning the Servicing Agreement or the
servicing rights thereunder to any other party;
(m) the
Trustee and the Custodians shall not be accountable and shall have no liability
for any acts or omissions by the Securities Administrator, the Master Servicer
or other party hereto;
(n) in
no
event shall BNY as a Custodian hereunder, Deutsche Bank in its capacity as
Trustee and a Custodian hereunder, U.S. Bank, as a Custodian hereunder, Wells
Fargo, as a Custodian hereunder or any other Custodian hereunder, be liable
for
special, indirect or consequential damages;
(o) the
Securities Administrator is authorized and directed to execute the Interest
Rate
Swap Agreement; and
(p) the
Trustee is authorized and directed to execute the Primary Mortgage Insurance
Policy, if applicable, on behalf of the Trust.
Section
8.04Trustee
and Custodians Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and neither the Trustee nor the Custodians assumes
any responsibility for their correctness. The Trustee and the Custodians make
no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document. Neither the Trustee
nor the Custodians shall be accountable for the use or application by the
Depositor, the Master Servicer, any Servicer or the Securities Administrator
of
any funds paid to the Depositor, the Master Servicer, any Servicer or the
Securities Administrator in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account or the Distribution Account by the
Depositor, the Master Servicer, any Servicer, or the Securities
Administrator.
The
Trustee shall have no responsibility (i) for filing or recording any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted
to
it hereunder (unless the Trustee shall have become and remains the successor
Master Servicer), (ii) to see to any insurance (unless the Trustee shall have
become the successor Master Servicer) or (iii) to confirm or verify the contents
of any reports or certificates of the Servicers, Securities Administrator or
Master 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.
The
Securities Administrator executes the Certificates not in its individual
capacity but solely as Securities Administrator of the Trust Fund created by
this Agreement, in the exercise of the powers and authority conferred and vested
in it by this Agreement. Each of the undertakings and agreements made on the
part of the Securities Administrator on behalf of the Trust Fund in the
Certificates is made and intended not as a personal undertaking or agreement
by
the Securities Administrator but is made and intended for the purpose of binding
only the Trust Fund.
117
Section
8.05Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
Section
8.06Trustee’s
Fees and Expenses.
As
compensation for its activities under this Agreement, the Trustee shall be
paid
an on-going monthly or annual fee, as applicable, by the Securities
Administrator pursuant to a separate agreement. The Trustee shall have no lien
on the Trust Fund for the payment of such fees. The Trustee shall be entitled
to
be reimbursed, from funds on deposit in the Distribution Account, amounts
sufficient to indemnify and hold harmless the Trustee and any director, officer,
employee, or agent of the Trustee against any loss, liability, or expense
(including reasonable attorneys’ fees) incurred:
(i) in
connection with any claim or legal action relating to:
(a)this
Agreement; or
(b)the
Mortgage Loans or the Certificates; and
(ii) the
performance of any of the Trustee’s duties under this Agreement; or
(iii) incurred
by reason of any action of the Trustee taken at the direction of the
Certificateholders;
other
than, in each case, any loss, liability, or expense (i) resulting from any
breach of any Servicer’s obligations in connection with its Servicing Agreement
for which that Servicer has performed its obligation to indemnify the Trustee
pursuant to Servicing Agreement, (ii) resulting from any breach of the
Responsible Party’s obligations in connection with any Sale Agreement for which
it has performed its obligation to indemnify the Trustee pursuant to the Sale
Agreement, (iii) resulting from any breach of the Master Servicer’s obligations
hereunder for which the Master Servicer has performed its obligation to
indemnify the Trustee pursuant to this Agreement or (iv) incurred because of
willful misfeasance, bad faith, or negligence in the performance of any of
the
Trustee’s duties under this Agreement. This indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trustee
under
this Agreement. Without limiting the foregoing, except for any expense,
disbursement, or advance arising from the Trustee’s negligence, bad faith, or
willful misfeasance, the Trust Fund shall pay or reimburse the Trustee, for
all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with this Agreement with respect to:
(A) the
reasonable compensation, expenses, and disbursements of its counsel not
associated with the closing of the issuance of the Certificates;
and
(B) the
reasonable compensation, expenses, and disbursements of any accountant,
engineer, or appraiser that is not regularly employed by the Trustee, to the
extent that the Trustee must engage them to perform services under this
Agreement.
118
Except
as
otherwise provided in this Agreement, the Trustee shall not be entitled to
payment or reimbursement for any routine ongoing expenses incurred by the
Trustee in the ordinary course of its duties as Trustee under this Agreement
or
for any other expenses.
Section
8.07Eligibility
Requirements for the Trustee.
The
Trustee hereunder shall at all times be a corporation, banking association
or
other association organized and doing business under the laws of a 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, subject
to supervision or examination by federal or state authority and the appointment
of which would not cause any of the Rating Agencies to reduce or withdraw their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section 8.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
this
Section 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or with
the Servicer and its affiliates; provided,
however,
that
such entity cannot be an affiliate of the Depositor or of any Servicer other
than the Trustee in its role as successor to the Master Servicer.
Section
8.08Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer,
the Securities Administrator and each Rating Agency not less than sixty (60)
days before the date specified in such notice, when, subject to Section 8.09,
such resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.09 meeting the qualifications set forth in Section
8.07. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within thirty (30) days after the giving
of such notice or resignation, the resigning Trustee may petition any court
of
competent jurisdiction for the appointment of a successor trustee.
If
at any
time (i) the Trustee shall cease to be eligible in accordance with Section
8.07
and shall fail to resign after written request thereto by the Depositor, (ii)
the Trustee shall become incapable of acting, or shall be adjudged as bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee
or
of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, (iii)(A) a tax is imposed with respect to the Trust Fund by any
state in which the Trustee or the Trust Fund is located and (B) the imposition
of such tax would be avoided by the appointment of a different trustee, or
(iv)
the Trustee fails to comply with its obligations under the last sentence of
Section 8.04 in the preceding paragraph, Section 8.10 or Article XIII and such
failure is not remedied within the lesser of ten (10) calendar days or such
period in which the applicable Exchange Act Report can be timely filed (without
taking into account any extensions), then, in the case of clauses (i) through
(iv), the Depositor may remove the Trustee and appoint a successor trustee
by
written instrument, in duplicate, one copy of which shall be delivered to the
Trustee and one copy to the successor trustee.
119
The
Holders of Certificates entitled to a majority of the Voting Rights may at
any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, in duplicate, signed by such Holders or their attorneys in fact
duly authorized, one complete set of which shall be delivered to the Trustee
so
removed and one complete set to the successor so appointed. The successor
trustee shall notify each Rating Agency of any removal of the
Trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to this Section 8.08 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.09.
Section
8.09Successor
Trustee.
Any
successor trustee appointed as provided in Section 8.08 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee an
instrument accepting such appointment hereunder 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
hereunder, with the like effect as if originally named as trustee herein. 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 8.09
unless at the time of its acceptance, the successor trustee is eligible under
Section 8.07 and its appointment does not adversely affect the then current
rating of the Certificates and has provided to the Depositor in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
Upon
acceptance of appointment by a successor trustee as provided in this Section
8.09, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates and the Custodians. If the Depositor
fails to mail such notice within ten (10) days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to
be
mailed at the expense of the Depositor.
Section
8.10Merger
or Consolidation of the Trustee or the Custodians.
Any
corporation or association into which the Trustee or the Custodians, as
applicable, may be merged or converted or with which it may be consolidated
or
any corporation or association resulting from any merger, conversion or
consolidation to which the Trustee or the Custodians, as applicable, shall
be a
party, or any corporation or association succeeding to the business of the
Trustee or the Custodians, as applicable, or any corporation or association
to
which all or substantially all of the corporate trust business of the Trustee
or
the Custodians, as applicable, may be sold or otherwise transferred, shall
be
the successor of the Trustee or the Custodians, as applicable, hereunder;
provided,
that
such
corporation or association shall be eligible under Section 8.07 without the
execution or filing of any paper or further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section
8.11Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all
or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the Trust
Fund or any part thereof, whichever is applicable, and, subject to the other
provisions of this Section 8.11, such powers, duties, obligations, rights and
trusts as the Trustee may consider appropriate. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.09 and no notice to Certificateholders of
the
appointment of any co-trustee or separate trustee shall be required under
Section 8.09.
120
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a)to
the
extent necessary to effectuate the purposes of this Section 8.11, all rights,
powers, duties and obligations conferred or imposed upon the Trustee, except
for
the obligation of the Trustee (as successor Master Servicer) under this
Agreement to advance funds on behalf of the Master Servicer, shall be conferred
or imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or
co-trustee is not authorized to act separately without the Trustee joining
in
such act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder
or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b)no
trustee hereunder shall be held personally liable because of any act or omission
of any other trustee hereunder and such appointment shall not, and shall not
be
deemed to, constitute any such separate trustee or co-trustee as agent of the
Trustee;
(c)the
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee; and
(d)the
Trust
Fund, and not the Trustee, shall be liable for the payment of reasonable
compensation, reimbursement and indemnification to any such separate trustee
or
co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Master Servicer and the Depositor.
121
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section
8.12Tax
Matters.
It is
intended that the assets with respect to which any REMIC election pertaining
to
the Trust Fund is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a “real estate mortgage investment conduit”
as defined in, and in accordance with, the REMIC Provisions. In furtherance
of
such intention, the Securities Administrator covenants and agrees that it shall
act as agent (and the Securities Administrator is hereby appointed to act as
agent) on behalf of each REMIC described in the Preliminary Statement and that
in such capacity it shall:
(a)prepare
and file, in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
(REMIC) Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file with the Internal Revenue Service
and applicable state or local tax authorities income tax or information returns
for each taxable year with respect to each Trust REMIC containing such
information and at the times and in the manner as may be required by the Code
or
state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and
in
such manner as may be required thereby;
(b)within
thirty (30) days of the Closing Date, apply for an employer identification
number from the Internal Revenue Service via Form SS-4 or any other acceptable
method for all tax entities and shall also furnish to the Internal Revenue
Service, on Form 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the
Code;
(c)make
an
election that each Trust REMIC be treated as a REMIC on the federal tax return
for its first taxable year (and, if necessary, under applicable state
law);
(d)prepare
and forward to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and
when required to be provided to them in accordance with the REMIC Provisions,
including the calculation of any original issue discount using the prepayment
assumption (as described in the Prospectus Supplement);
(e)provide
information necessary for the computation of tax imposed on the transfer of
a
Residual Certificate to a Person that is not a Permitted Transferee (a
“Non
Permitted Transferee”),
or an
agent (including a broker, nominee or other middleman) of a Non Permitted
Transferee, or a pass through entity in which a Non Permitted Transferee is
the
record holder of an interest (the reasonable cost of computing and furnishing
such information may be charged to the Person liable for such tax);
122
(f)to
the
extent that they are under its control, conduct matters relating to such assets
at all times that any Certificates are outstanding so as to maintain the status
of each Trust REMIC as a REMIC under the REMIC Provisions;
(g)not
knowingly or intentionally take any action or omit to take any action that
would
cause the termination of the REMIC status of any Trust REMIC created
hereunder;
(h)pay,
from
the sources specified in the last paragraph of this Section 8.12, the amount
of
any federal or state tax, including prohibited transaction taxes as described
below, imposed on any Trust REMIC before its termination when and as the same
shall be due and payable (but such obligation shall not prevent the Securities
Administrator or any other appropriate Person from contesting any such tax
in
appropriate proceedings and shall not prevent the Securities Administrator
from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i)cause
federal, state or local income tax or information returns to be signed by the
Securities Administrator or, if required by applicable tax law, the Trustee
or
such other person as may be required to sign such returns by the Code or state
or local laws, regulations or rules;
(j)maintain
records relating to each of the Trust REMICs, including the income, expenses,
assets, and liabilities thereof on a calendar year basis and on the accrual
method of accounting and the fair market value and adjusted basis of the assets
determined at such intervals as may be required by the Code, as may be necessary
to prepare the foregoing returns, schedules, statements or information;
and
(k)as
and
when necessary and appropriate, represent each Trust REMIC in any administrative
or judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of
each Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any Trust
REMIC, and otherwise act on behalf of each Trust REMIC in relation to any tax
matter or controversy involving it.
The
Holder of the largest Percentage Interest of the Class 1R, Class 1RC and Class
1RX Certificates shall act as Tax Matters Person for the Group I Lower-Tier
REMIC, the Group I Upper-Tier REMIC and the Group I Class X REMIC, respectively,
within the meaning of Treasury Regulations Section 1.860F-4(d), and the
Securities Administrator is hereby designated as agent of such Certificateholder
for such purpose (or if the Securities Administrator is not so permitted, such
Holder shall be the Tax Matters Person in accordance with the REMIC Provisions).
The Holder of the largest Percentage Interest of the Class 2R, Class 2RC and
Class 2RX Certificates shall act as Tax Matters Person for the Group II
Lower-Tier REMIC and the Group II Middle-Tier REMIC, the Group II Upper-Tier
REMIC and the Group II Class X REMIC, respectively, within the meaning of
Treasury Regulations Section 1.860F-4(d), and the Securities Administrator
is
hereby designated as agent of such Certificateholder for such purpose (or if
the
Securities Administrator is not so permitted, such Holder shall be the Tax
Matters Person in accordance with the REMIC Provisions). In such capacity,
the
Securities Administrator shall, as and when necessary and appropriate, represent
each Trust REMIC in any administrative or judicial proceedings relating to
an
examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of each Trust REMIC, enter
into
settlement agreements with any governmental taxing agency, extend any statute
of
limitations relating to any tax item of any Trust REMIC, and otherwise act
on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
123
The
Securities Administrator shall treat the rights of each of the Class 1P and
Class 2P Certificateholders to receive Prepayment Premiums from Mortgage Loans
of the related Group, the rights of each of the Class 1X and the Class 2X
Certificateholders to receive amounts in the Excess Reserve Fund Account and
Supplemental Interest Trust (subject to the obligation to pay Tax Basis Risk
Carry Forward Amounts) and the rights of the Principal Certificateholders to
receive Tax Basis Risk Carry Forward Amounts (as calculated in the Preliminary
Statement) as the beneficial ownership interests in a grantor trust and not
as
an obligations of any REMIC created hereunder, for federal income tax purposes.
The Securities Administrator shall file or cause to be filed with the Internal
Revenue Service Form 1041 or such other form as may be applicable and shall
furnish or cause to be furnished, to each of the Class 1X, Class 2X, Class
1P
and Class 2P Certificateholders and the Principal Certificateholders, the
respective amounts described above that are received, in the time or times
and
in the manner required by the Code.
The
Securities Administrator shall treat the Supplemental Interest Trust as a WHFIT.
The Securities Administrator will report to the Holder of the Class 2X
Certificates, as the beneficial owner of the Supplemental Interest Trust, as
required under the WHFIT Regulations to the extent such information as is
reasonably necessary to enable Securities Administrator to do so is provided
to
Securities Administrator on a timely basis. To the extent that the Supplemental
Interest Trust is a WHFIT, the Depositor shall provide or shall cause the Holder
of the Class 2X Certificates to provide to the Securities Administrator
information identifying “middlemen” (as defined by the WHFIT Regulations)
related to the Class 2X Certificates. The Securities Administrator will not
be
liable for any tax reporting penalties that may arise under the WHFIT
Regulations as a result of the incorrect determination of the status of the
Supplemental Interest Trust as a WHFIT or failing to identify whether or not
the
Supplemental Interest Trust is a WHFIT.
The
Securities Administrator, in its discretion, will report required WHFIT
information to the beneficial owner of the Supplemental Interest Trust using
either the cash or accrual method and will specify the method used by it, except
to the extent the WHFIT Regulations specifically require a different method.
The
Securities Administrator will be under no obligation to determine whether any
Certificateholder uses the cash or accrual method. The Securities Administrator
will make available WHFIT information to Certificateholders on its website.
In
addition, except for posting such information on its website, the Securities
Administrator will not be responsible or liable for providing subsequently
amended, revised or updated information to any Certificateholder, unless
requested by that Certificateholder.
124
The
Securities Administrator shall not be liable for failure to meet the reporting
requirements of the WHFIT Regulations nor for any penalties thereunder if such
failure is due to: (i) the lack of reasonably necessary information being
provided to Securities Administrator or (ii) incomplete, inaccurate or untimely
information being provided to Securities Administrator. Each owner of a Class
2X
Certificate representing, in whole or in part, beneficial ownership of an
interest in a WHFIT, by acceptance of its interest in such Class 2X Certificate,
will be deemed to have agreed to provide Securities Administrator with
information regarding any sale of such securities, including the price, amount
of proceeds and date of sale. Absent receipt of such information, and unless
informed otherwise by the Depositor, Securities Administrator will assume there
is no secondary market trading of WHFIT interests.
To
the
extent required by the WHFIT Regulations, the Securities Administrator will
publish on an appropriate website or otherwise make available the CUSIPs for
the
certificates that represent ownership of a WHFIT. The Securities Administrator
will use its best efforts to keep the information accurate and updated to the
extent CUSIPs have been received. The Securities Administrator will not be
liable for investor reporting delays that result from the receipt of inaccurate
or untimely CUSIP information.
The
Securities Administrator shall be entitled to additional reasonable compensation
for changes in reporting required in respect of the WHFIT Regulations that
arise
as a result of (i) the failure of the Depositor or the Holder of the Class
2X
Certificates to inform timely the Securities Administrator of the designation
of
the Supplemental Interest Trust as a WHFIT, (ii) the Supplemental Interest
Trust
becoming a WHFIT after the Closing Date (if compensation is not already provided
for this contingency) or (iii) a change in the WHFIT Regulations or a change
in
interpretation of the WHFIT Regulations by the IRS or the Depositor or the
Holder of the Class 2X Certificates or their counsel, if such change requires,
in the Securities Administrator’s reasonable discretion, a material increase in
its reporting obligations in respect of the Supplemental Interest
Trust.
To
enable
the Securities Administrator to perform its duties under this Agreement, the
Depositor shall provide to the Securities Administrator within ten (10) days
after the Closing Date all information or data that the Securities Administrator
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including the price, yield,
prepayment assumption, and projected cash flows of the Certificates and the
Mortgage Loans. Moreover, the Depositor shall provide information to the
Securities Administrator concerning the value, if any, to each Class of
Certificates of the right to receive Tax Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account and the Supplemental Interest Trust. Thereafter,
the Depositor shall provide to the Securities Administrator promptly upon
written request therefor any additional information or data that the Securities
Administrator may, from time to time, reasonably request to enable the
Securities Administrator to perform its duties under this Agreement. The
Depositor hereby indemnifies the Securities Administrator for any losses,
liabilities, damages, claims, or expenses of the Securities Administrator
arising from any errors or miscalculations of the Securities Administrator
that
result from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Securities Administrator on a timely
basis.
125
If
any
tax is imposed on “prohibited transactions” of any Trust REMIC as defined in
Section 860F(a)(2) of the Code, on the “net income from foreclosure property” of
the Lower-Tier REMIC as defined in Section 860G(c) of the Code, on any
contribution to any Trust REMIC after the Startup Day pursuant to Section
860G(d) of the Code, or any other tax is imposed, including any minimum tax
imposed on any Trust REMIC pursuant to Sections 23153 and 24874 of the
California Revenue and Taxation Code, if not paid as otherwise provided for
herein, the tax shall be paid by (i) the Master Servicer, the Trustee or the
Securities Administrator, as applicable if such tax arises out of or results
from negligence of the Master Servicer, the Trustee or the Securities
Administrator, as applicable in the performance of any of its obligations under
this Agreement, (ii) a Servicer, in the case of any such minimum tax, and
otherwise if such tax arises out of or results from a breach by the Servicer
of
any of its obligations under the applicable Servicing Agreement, (iii) a
Responsible Party if such tax arises out of or results from the Responsible
Party’s obligation to repurchase a Mortgage Loan pursuant to the applicable Sale
Agreement or (iv) in all other cases, or if the Trustee, the Master Servicer,
the Securities Administrator, the Servicer or the Responsible Party fails to
honor its obligations under the preceding clause (i), (ii), or (iii), any such
tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Sections 4.01(a) or 4.02(a), as
applicable.
For
as
long as each Trust REMIC shall exist, the Securities Administrator shall act
as
specifically required herein, and the Securities Administrator shall comply
with
any directions of the Depositor or a Servicer stating that such directions
are
being given to assure such continuing treatment. In particular, the Securities
Administrator shall not (a) sell or authorize the sale of all or any portion
of
the Mortgage Loans or of any investment of deposits in an Account unless such
sale is as a result of a purchase or repurchase of the Mortgage Loans pursuant
to this Agreement or (b) accept any contribution to any Trust REMIC after the
Startup Day without receipt of an Opinion of Counsel that such action described
in clause (a) or (b) will not result in the imposition of a tax on any Trust
REMIC or cause any Trust REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding.
Section
8.13Reserved.
Section
8.14Tax
Classification of the Excess Reserve Fund Account and the Interest Rate Swap
Agreement.
For
federal income tax purposes, the Securities Administrator shall treat separate
portions of the Excess Reserve Fund Account attributable to the obligations
to
pay Tax Basis Risk Carry Forward Amounts to the Group I and Group II
Certificates, respectively, as beneficially owned by the holders of each of
the
Class 1X and the Class 2X Certificates and shall treat such separate portions
of
the Trust Fund as separate grantor trusts under subpart E, Part I of subchapter
J of the Code. The Interest Rate Swap Agreement will be treated as part of
the
grantor trust beneficially owned by the holder of the Class 2X Certificates.
The
Securities Administrator shall treat the rights that each Class of Principal
Certificates has to receive payments of Tax Basis Risk Carry Forward Amounts
from the Excess Reserve Fund Account and the Supplemental Interest Trust as
rights to receive payments under an interest rate cap contract written by each
of the Class 1X and the Class 2X Certificateholders in favor of each Class
of
Principal Certificates corresponding to its Loan Group. Accordingly, each Class
of Principal Certificates will comprise two components—a regular interest in the
Upper-Tier REMIC and an interest in an interest rate cap contract, the Class
1X
Certificates comprise three components—a regular interest in the Class X REMIC
and an interest in the Supplemental Interest Trust and the Excess Reserve Fund
Account subject to the obligation to pay Tax Basis Risk Xxxx Forward Amounts,
and the Class 2X Certificates will comprise four components—a regular interest
in the Class 2X REMIC, an interest in the Interest Rate Swap Agreement, the
Supplemental Interest Trust and the Excess Reserve Fund Account subject to
the
obligation to pay Tax Basis Risk Xxxx Forward Amounts, Net Swap Payment Amounts
and Swap Termination Payments. The Securities Administrator shall allocate
the
issue price for a Class of Certificates among these components for purposes
of
determining the issue price of the Upper-Tier Regular Interest component based
on information received from the Depositor. Unless otherwise advised by the
Depositor in writing, for federal income tax purposes, the Securities
Administrator is hereby directed to assign a value of zero to the right of
each
Holder of a Principal Certificate to receive the related Tax Basis Risk Carry
Forward Amount for purposes of allocating the purchase price of an initial
LIBOR
Certificateholder between such right and the related Upper-Tier Regular
Interest.
126
Holders
of LIBOR Certificates shall also be treated as having agreed to pay, on each
Distribution Date, to the Holders of the Class 2X Certificates an aggregate
amount equal to the excess, if any, of (i) Net Swap Payment Amounts and Swap
Termination Payments (other that Defaulted Swap Termination Payments) over
(ii)
the sum of amounts payable on the Class 2X Interest as provided in the
Preliminary Statement hereof (such excess, a “Class
IO Shortfall”),
first
from interest and then from principal distributable on the LIBOR Certificates.
A
Class IO Shortfall payable from interest collections shall be allocated
pro
rata
among
such LIBOR Certificates based on the amount of interest otherwise payable to
such Class of LIBOR Certificates, and a Class IO Shortfall payable from
principal collections shall be allocated in reverse sequential order beginning
with the most subordinate Class of LIBOR Certificates then
outstanding.
Any
payments of Class IO Shortfalls shall be treated for tax purposes as having
been
received by the Holders of such Class of LIBOR Certificates in respect of the
corresponding Upper-Tier Regular Interest and as having been paid by such
Holders to the Holders of the Class 2X Certificates through the Supplemental
Interest Trust.
Section
8.15Custodial
Responsibilities.
Each of
the Custodians shall provide access to the Mortgage Loan documents in possession
of such Custodian regarding the related Mortgage Loans and REO Property and
the
servicing thereof to the Trustee, the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon two (2) Business Days, prior written request and during normal business
hours at the office of such Custodian; provided,
however,
that,
unless otherwise required by law or any regulatory or administrative agency
(including the FDIC), such Custodian shall not be required to provide access
to
such records and documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. Each of the Custodians shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at the expense of
the
Trust that covers such Custodians actual costs.
Upon
receipt of a request for release by a Servicer substantially in the form of
Exhibit
L-1,
Exhibit
L-2,
Exhibit
L-3
or
Exhibit
L-4
hereto,
the applicable Custodian shall release within five (5) Business Days the related
Mortgage File to such Servicer and the Trustee shall execute and deliver to
such
Servicer, without recourse, a request for reconveyance, deed of reconveyance
or
release or satisfaction of mortgage or such instrument releasing the lien of
the
Mortgage (furnished by such Servicer), together with the Mortgage
Note.
127
Each
of
the Custodians may resign at any time or may be terminated by the Trustee with
cause, in each case, upon sixty (60) days written notice to the applicable
Servicer, the Depositor and the Securities Administrator, in which event the
Depositor will be obligated to appoint a successor. If no successor has been
appointed and has accepted appointment within sixty (60) days after the
resignation or termination of such Custodian, such Custodian may petition any
court of competent jurisdiction for appointment of a successor.
The
Securities Administrator, pursuant to a separate agreement, shall compensate
from its own funds the Custodians for their respective activities under this
Agreement. The Custodians shall have no lien on the Trust Fund for the payment
of such fees. The Custodians shall be entitled to be reimbursed, from funds
on
deposit in the Distribution Account, amounts sufficient to indemnify and hold
harmless each of the Custodians and any director, officer, employee, or agent
of
a Custodian against any loss, liability, or expense (including reasonable
attorneys’ fees) incurred in connection with any claim or legal action relating
to:
(a) this
Agreement;
(b) the
Certificates; or
(c) the
performance of any of such Xxxxxxxxx’s duties under this Agreement,
other
than any loss, liability, or expense (i) resulting from any breach of a
Servicer’s obligations in connection with a Servicing Agreement for which the
Servicer has performed its obligation to indemnify such Custodian pursuant
to
such Servicing Agreement, (ii) resulting from any breach of the Responsible
Party’s obligations in connection with a Sale Agreement for which the
Responsible Party has performed its obligation to indemnify such Custodian
pursuant to such Sale Agreement or (iii) incurred because of willful
misfeasance, bad faith, or negligence in the performance of any of such
Custodian’s duties under this Agreement. This indemnity shall survive the
termination of this Agreement or the earlier resignation or removal of the
Custodians.
ARTICLE
IX
ADMINISTRATION
OF THE MORTGAGE LOANS
BY
THE MASTER SERVICER
Section
9.01Duties
of the Master Servicer; Enforcement of 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 related Servicing Agreements, and (except as set forth
below) shall use its reasonable good faith efforts to cause the Servicers to
duly and punctually perform their duties and obligations thereunder as
applicable. Upon the occurrence of an Event of Default of which a Responsible
Officer of the Master Servicer has actual knowledge, the Master Servicer shall
promptly notify the Securities Administrator and the 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 an Event of Default shall occur and be continuing,
the Master Servicer shall take the actions specified in Article VII.
If
(i) a
Servicer reports a delinquency on a monthly report and (ii) such Servicer,
by 11
a.m. (New York Time) on the Business Day preceding the related Remittance Date,
neither makes a Monthly Advance nor provides the Securities Administrator and
the Master Servicer with a report certifying that such a Monthly Advance would
be a Nonrecoverable Monthly Advance, then the Master Servicer shall deposit
in
the Distribution Account not later than the Business Day immediately preceding
the related Distribution Date a Monthly Advance in an amount equal to the
difference between (x) with respect to each Monthly Payment due on a Mortgage
Loan that is delinquent (other than Relief Act Interest Shortfalls) and for
which the related Servicer was required to make a Monthly Advance pursuant
to
the related Servicing Agreement and (y) amounts deposited in the Collection
Account to be used for Monthly Advances with respect to such Mortgage Loan,
except to the extent the Master Servicer determines any such Monthly Advance
to
be a Nonrecoverable Monthly Advance or Nonrecoverable Servicing Advance. Subject
to the foregoing, the Master Servicer shall continue to make such Monthly
Advances for so long as the related Servicer is required to do so under the
related Servicing Agreement. If applicable, on the Business Day immediately
preceding the Distribution Date, the Master Servicer shall deliver an Officer’s
Certificate to the Trustee stating that the Master Servicer elects not to make
a
Monthly Advance in a stated amount and detailing the reason(s) it deems the
Monthly Advance to be a Nonrecoverable Monthly Advance. Any amounts deposited
by
the Master Servicer pursuant to this Section 9.01 shall be net of the Servicing
Fee for the related Mortgage Loans. If the Master Servicer fails to make a
required Monthly Advance, the Securities Administrator shall provide prompt
written notice to the Trustee of such failure.
128
(a)The
Master Servicer shall pay the costs of monitoring the Servicers as required
hereunder (including costs associated with (i) termination of any Servicer,
(ii)
the appointment of a successor servicer or (iii) the transfer to and assumption
of the servicing by the Master 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 or to a successor servicer
are not paid for by the predecessor or successor Servicer (provided 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 the Master Servicer or any other successor servicer.
(b)If
the
Master Servicer assumes the servicing with respect to any of the Mortgage Loans,
it will not assume liability for the representations and warranties of any
Servicer it replaces or for any errors or omissions of such
Servicer.
If
the
Depositor or an affiliate of the Depositor is the owner of the servicing rights
for any Servicer and the Depositor chooses to terminate such Servicer with
or
without cause and sell those servicing rights to a successor servicer, then
the
Depositor must provide thirty (30) days’ notice to the Master Servicer, such
successor servicer must be reasonably acceptable to the Master Servicer, the
terminated servicer must be reimbursed for any unreimbursed Monthly Advances,
servicing fees and any related expenses, the successor servicer must be
qualified to service mortgage loans for Xxxxxx Xxx or Freddie Mac and the
Depositor must obtain prior written consent from the Rating Agencies that the
transfer of the servicing of the mortgage loans will not result in a downgrade,
qualification or withdrawal of the then current ratings of the Certificates.
The
costs of such transfer (including any costs of the Master Servicer) are to
be
borne by the Depositor.
129
Neither
the Depositor nor the Securities Administrator shall consent to the assignment
by any Servicer of such Servicer’s rights and obligations under the Agreement
without the prior written consent of the Master Servicer, which consent shall
not be unreasonably withheld.
Section
9.02Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
Section
9.03Representations
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 of America, and as Master Servicer has full power
and
authority to transact any and all business contemplated by this Agreement and
to
execute, deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary corporate action on the part of the Master
Servicer;
(ii)the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A) violate
the Master Servicer’s charter or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C) constitute
a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party or by
which it is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master Servicer’s
ability to perform its obligations under this Agreement;
(iii)this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv)the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
130
(v)the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(vi)no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
(vii)Reserved;
(viii)no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been obtained;
and
(ix)the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer.
(b)The
applicable Step 2 Assignment Agreements and Section 11.01 of this Agreement
provide that the Depositor, at its option, may request the Master Servicer
to
solicit bids in a commercially reasonable manner, on or after the Optional
Termination Date with respect to any Group (such event, the “Auction
Call”),
for
the purchase of all of the Mortgage Loans (and REO Properties) of such Group
at
the Termination Price. The Master Servicer shall accommodate such request to
conduct an Auction Call at its sole discretion. If the Master Services
accommodates such request, the Master Servicer shall be entitled to
reimbursement for all fees and expenses incurred. The Depositor hereby
represents, covenants and agrees with any applicable NIM Issuer that it will
not
exercise its right to request the Master Servicer to solicit bids in a
commercially reasonable manner, on or after the Optional Termination Date with
respect to any Group, for the purchase of all of the Mortgage Loans of such
Group (and related REO Properties) unless it has received (x) written
notification from the NIM Trustee that all of the outstanding notes issued
under
the applicable indenture have been paid in full or (y) an Officer’s Certificate
of the NIM Issuer pursuant to the applicable section of the relevant indenture
to the effect that all conditions precedent to the satisfaction and discharge
of
the indenture have been complied with.
(c)It
is
understood and agreed that the representations and warranties set forth in
this
Section shall survive the execution and delivery of this Agreement. The Master
Servicer shall indemnify the Depositor, 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 9.03(a)
above. It is understood and agreed that the enforcement of the obligation of
the
Master Servicer set forth in this Section 9.03 to indemnify the Depositor,
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
Agreement.
131
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,
Securities Administrator or the Trustee or notice thereof by any one of such
parties to the other parties.
Section
9.04Master
Servicer Events of Default.
Each of
the following shall constitute a “Master
Servicer Event of Default”:
(a)any
failure by the Master Servicer to deposit in the Distribution Account any
payment received by it from any Servicer or required to be made by the Master
Servicer under the terms of this 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 by any other party hereto;
(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 Agreement (including any obligation to cause any subservicer or
Reporting Subcontractor (except as specified below) to take any action specified
in Article XIII) 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 Trustee
or
to the Master Servicer and the Trustee by the holders of Certificates evidencing
at least 25% of the Voting Rights; provided that the thirty (30) day cure period
shall not apply so long as the Depositor is required to file Exchange Act
Reports with respect to the Trust Fund, the failure to comply with the
requirements set forth in Article XIII, for which the grace period shall not
exceed the lesser of ten (10) calendar days or such period in which the
applicable Exchange Act Report can be timely filed (without taking into account
any extensions);
(c)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;
(d)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;
(e)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;
132
(f)except
as
otherwise set forth herein, the Master Servicer attempts to assign this
Agreement or its responsibilities hereunder or to delegate its duties hereunder
(or any portion thereof) without the consent of the Securities Administrator
and
the Depositor; or
(g)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 this Agreement, in each case, where such indictment materially
and adversely affects the ability of the Master Servicer to perform its
obligations under this 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, and (a) upon the
request of the Holders of Certificates representing at least 51% of the Voting
Rights (except with respect to any Master Servicer Event of Default related
to a
failure to comply with an Exchange Act Filing Obligation) or (b) the Depositor,
in the case of a failure related to an Exchange Act Filing Obligation, shall,
terminate with cause all the rights and obligations of the Master Servicer
under
this Agreement.
The
Depositor shall not be entitled to terminate the rights and obligations of
the
Master Servicer, pursuant to the above paragraph, if a failure of the Master
Servicer to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
Upon
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, shall pass to and be vested in
any
successor master servicer appointed hereunder which accepts such appointments.
Upon written request from the Trustee or the Depositor, 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 with respect to the master servicing of the
Mortgage Loans 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 which shall at the time be credited to the Distribution Account
or
are thereafter received with respect to the Mortgage Loans.
Upon
the
occurrence of a Master Servicer Event of Default, the Securities Administrator
shall (i) provide prompt written notice to the Trustee and the Depositor of
such
occurrence and (ii) provide the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a successor master servicer in the event the
Trustee should succeed to the duties of the Master Servicer as set forth herein.
In the event that the Master Servicer becomes a terminated Master Servicer
due
to a Master Servicer Event of Default, the terminated Master Servicer shall
bear
all costs of the transfer of master servicing hereunder (including those
incurred by the Trustee). If such costs are not paid by the terminated Master
Servicer, such costs shall be reimbursed from the Trust Fund.
133
Section
9.05Waiver
of Default.
By a
written notice, the Trustee may with the consent of a Holders of Certificates
evidencing at least 51% 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 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
9.06Successor
to the Master Servicer.
Upon
termination of the Master Servicer’s responsibilities and duties under this
Agreement, the Trustee shall appoint or may petition any court of competent
jurisdiction for the appointment of a successor, which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Master Servicer under this Agreement prior to the termination of the Master
Servicer. Any successor shall be a Xxxxxx Xxx and Freddie Mac approved servicer
in good standing and acceptable to the Depositor and the Rating Agencies. 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 servicer 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 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 which it is obligated to exercise under
this 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 (i) relieve the Master Servicer of responsibility for
the
representations and warranties made pursuant to Section 9.03(a) hereof and
the
remedies available to the Trustee under Section 9.03(b) hereof, it being
understood and agreed that the provisions of Section 9.03 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
Agreement; or (ii) 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 this
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 this Agreement 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, including the fees and other amounts payable
pursuant to Section 9.07 hereof.
134
At
least
fifteen (15) calendar days prior to the effective date of such appointment,
the
Trustee shall provide written notice to the Depositor of such successor pursuant
to this Section 9.06.
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, wherein the successor shall make the representations
and warranties set forth in Section 9.03 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 Agreement. Any termination
or
resignation of the Master Servicer or termination of this 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 or in connection with the Trustee’s assumption as
successor master servicer of such obligations, duties and
responsibilities.
Upon
a
successor’s acceptance of appointment as such, the Master Servicer shall notify
by mail the Trustee of such appointment.
Section
9.07Compensation
of the Master Servicer.
As
compensation for its activities under this Agreement, the Master Servicer shall
be paid the Master Servicing Fee and be entitled to the investment income earned
on amounts in the Distribution Account during the Master Servicer Float
Period.
Section
9.08Merger
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 (i) be a Person
(or have an Affiliate) that is qualified and approved to service mortgage loans
for Xxxxxx Xxx and FHLMC (provided, further
that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Xxx and FHLMC guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section
9.09Resignation
of the Master Servicer.
Except
as otherwise provided in Sections 9.08 and 9.10 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 the Trustee shall
have
assumed, or a successor master servicer satisfactory to the Trustee and the
Depositor shall have assumed, the Master Servicer’s responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Trustee.
135
At
least
fifteen (15) calendar days prior to the effective date of such resignation,
the
Master Servicer shall provide written notice to the Depositor of any successor
pursuant to this Section.
If
at any
time, Xxxxx Fargo, as Master Servicer, resigns under this Section 9.09, or
is
removed as Master Servicer pursuant to Section 9.04, then at such time Xxxxx
Fargo shall also resign (and shall be entitled to resign) as Securities
Administrator under this Agreement.
Section
9.10Assignment
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; provided,
however,
that
the Master Servicer shall have the right with the prior written consent of
the
Depositor (which shall not be unreasonably withheld or delayed), 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 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 compensation payable to the Master
Servicer pursuant hereto shall thereafter be payable to such successor master
servicer but in no event shall the fee payable to the successor master servicer
exceed that payable to the predecessor master servicer.
Section
9.11Limitation
on Liability of the Master Servicer.
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 Securities
Administrator, the Servicers or the Certificateholders for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Master Servicer or any such person against
any liability that would otherwise be imposed by reason of willful malfeasance,
bad faith or negligence in the performance of its duties or by reason of
reckless disregard for its obligations and duties under this Agreement. The
Master Servicer and any director, officer, employee or agent of the Master
Servicer 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 Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that
the Master Servicer may in its sole discretion undertake any such action that
it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom, shall be 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 9.07 and Section
9.12.
136
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 the
Servicers as required under this Agreement.
Section
9.12Indemnification;
Third Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Securities Administrator,
the Servicers, the Trustee and the Custodians, 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, the Servicers, the Trustee or
the
Custodians 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 Agreement.
The Depositor, the Securities Administrator, the Servicers, the Trustee and
the
Custodians, as applicable shall immediately notify the Master Servicer if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans which would entitle the Depositor, the Servicers, the Trustee or the
Custodians to indemnification under this Section 9.12, whereupon the Master
Servicer shall assume the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim.
The
Master Servicer agrees to indemnify and hold harmless the Trustee from and
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liability, fees and expenses
(including reasonable attorneys’ fees) that the Trustee may sustain as a result
of such liability or obligations of the Master Servicer and in connection with
the Trustee’s assumption (not including the Trustee’s performance, except to the
extent that costs or liability of the Trustee are created or increased as a
result of negligent or wrongful acts or omissions of the Master Servicer prior
to its replacement as Master Servicer) of the Master Servicer’s obligations,
duties or responsibilities under such agreement.
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 Agreement, the Servicing Agreements, the Sale Agreements, the Step 2
Assignment Agreements or the Certificates, except to the extent that any such
loss, liability or expense is related to (i) a material breach of the Master
Servicer’s representations and warranties in this 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;
provided,
that
any such
loss, liability or expense constitutes an “unanticipated expense incurred by the
REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii).
The Master Servicer shall be entitled to reimbursement for any such indemnified
amount from funds on deposit in the Distribution Account.
137
ARTICLE
X
CONCERNING
THE SECURITIES ADMINISTRATOR
Section
10.01Duties
of the Securities Administrator.
The
Securities Administrator shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement.
(a)The
Securities Administrator, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Securities Administrator that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they are in the form required by this Agreement; provided,
however,
that
the Securities Administrator shall not be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement, the
Securities Administrator shall notify the Certificateholders of such
non-conforming instrument in the event the Securities Administrator, after
so
requesting, does not receive a satisfactorily corrected instrument.
(b)No
provision of this Agreement shall be construed to relieve the Securities
Administrator from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided,
however,
that:
(i)the
duties and obligations of the Securities Administrator shall be determined
solely by the express provisions of this Agreement, the Securities Administrator
shall not be liable except for the performance of such duties and obligations
as
are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Securities
Administrator and the Securities Administrator 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 Securities Administrator
and
conforming to the requirements of this Agreement which it believed in good
faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii)the
Securities Administrator shall not be liable for an error of judgment made
in
good faith by a Responsible Officer or Responsible Officers of the Securities
Administrator, unless it shall be conclusively determined by a court of
competent jurisdiction, such determination no longer subject to appeal, that
the
Securities Administrator was negligent in ascertaining the pertinent
facts;
(iii)the
Securities Administrator shall not be liable with respect to any action or
inaction taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates evidencing not less
than 25% of the Voting Rights of Certificates relating to the time, method
and
place of conducting any proceeding for any remedy available to the Securities
Administrator, or exercising or omitting to exercise any trust or power
conferred upon the Securities Administrator under this Agreement;
and
138
(iv)the
Securities Administrator shall not be accountable, shall have no liability
and
makes no representation as to any acts or omissions hereunder of the Master
Servicer or the Trustee.
Section
10.02Certain
Matters Affecting the Securities Administrator.
Except
as otherwise provided in Section 10.01:
(a)the
Securities Administrator may request and conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer’s Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
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 and the Securities
Administrator shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(b)the
Securities Administrator may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(c)the
Securities Administrator shall not be liable for any action or inaction taken,
suffered or omitted by it in good faith and believed by it to be authorized
or
within the discretion or rights or powers conferred upon it by this
Agreement;
(d)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
evidencing not less than 25% of the Voting Rights allocated to each Class of
Certificates; 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 reasonably
assured to the Securities Administrator by the security afforded to it by the
terms of this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so proceeding.
Nothing in this clause (d) shall derogate from the obligation of the Master
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors, provided that the Master Servicer shall have no
liability for disclosure required by this Agreement;
(e)the
Securities Administrator may execute any of the trusts or powers hereunder
or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and the Securities Administrator shall not be
responsible for any misconduct or negligence on the part of any such agent,
attorney or custodian appointed by the Securities Administrator with due
care;
139
(f)the
Securities Administrator shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that 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 the Master Servicer under this Agreement;
(g)the
Securities Administrator shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Securities Administrator reasonable security or indemnity satisfactory to the
Securities Administrator against the costs, expenses and liabilities which
may
be incurred therein or thereby;
(h)the
Securities Administrator shall have no obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties hereunder and
which
in its opinion may involve it in any expense or liability; provided,
however,
that
the Securities Administrator may in its discretion undertake any such action
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and the interests of the Trustee, the
Securities Administrator and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Securities Administrator shall be entitled to be reimbursed therefor out of
the
Collection Account; and
(i) in
no
event shall the Securities Administrator be liable for special, indirect or
consequential damages.
The
Securities Administrator shall have no duty (A) to cause any recording, filing,
or depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing or
to
any rerecording, refiling or redepositing thereof, (B) to cause the provision
of
any insurance or (C) to cause the payment or discharge of any tax, assessment,
or other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Distribution Account.
Section
10.03Securities
Administrator Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Transferor, as the case may be, and the
Securities Administrator assumes no responsibility for their correctness. The
Securities Administrator makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan
or
related document other than with respect to the Securities Administrator’s
execution and authentication of the Certificates. The Securities Administrator
shall not be accountable for the use or application by the Depositor or the
Master Servicer of any funds paid to the Depositor or the Master Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Depositor or the Master Servicer.
140
Section
10.04Securities
Administrator May Own Certificates.
The
Securities Administrator in its individual or any other capacity may become
the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were
not
the Securities Administrator.
Section
10.05Securities
Administrator’s Fees and Expenses.
The
Securities Administrator shall be entitled to the investment income earned
on
amounts in the Distribution Account during the Master Servicer Float Period.
The
Securities Administrator and any director, officer, employee, agent or “control
person” within the meaning of the Securities Act of 1933, as amended, and the
Securities Exchange of 1934, as amended (“Control
Person”),
of
the Securities Administrator shall be indemnified by the Trust and held harmless
against any loss, liability or expense (including reasonable attorney’s fees)
(i) incurred in connection with any claim or legal action relating to (a) this
Agreement, (b) the Mortgage Loans, (c) the Interest Rate Swap Agreement or
(d)
the Certificates, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of
the
Securities Administrator’s duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator’s duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Securities
Administrator’s duties hereunder or (iii) incurred by reason of any action of
the Securities Administrator taken at the direction of the Certificateholders,
provided that any such loss, liability or expense constitutes an “unanticipated
expense incurred by the REMIC” within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of
this
Agreement or the resignation or removal of the Securities Administrator
hereunder. Without limiting the foregoing, and except for any such expense,
disbursement or advance as may arise from the Securities Administrator’s
negligence, bad faith or willful misconduct, or which would not be an
“unanticipated expense” within the meaning of the second preceding sentence, the
Securities Administrator shall be reimbursed by the Trust for all reasonable
expenses, disbursements and advances incurred or made by the Securities
Administrator in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of
any
accountant, engineer, appraiser or other agent that is not regularly employed
by
the Securities Administrator, to the extent that the Securities Administrator
must engage such Persons to perform acts or services hereunder and (C) printing
and engraving expenses in connection with preparing any Definitive Certificates.
The Trust shall fulfill its obligations under this paragraph from amounts on
deposit from time to time in the Distribution Account.
The
Securities Administrator may retain or withdraw from the Distribution Account,
(i) the Master Servicing Fee and the investment income earned on amounts in
the
Distribution Account during the Master Servicer Float Period, (ii) amounts
necessary to reimburse it or the Master Servicer for any previously unreimbursed
Advances and any Advances the Master Servicer deems to be non-recoverable from
the related Mortgage Loan proceeds, (iii) an aggregate annual amount to
indemnify the Master Servicer and itself for amounts due in accordance with
this
Agreement and (iv) any other amounts which it or the Master Servicer is entitled
to receive hereunder for reimbursement, indemnification or otherwise, including
the amount to which the Securities Administrator is entitled pursuant to Section
3.02 hereof. The Securities Administrator shall be required to pay all expenses
incurred by it in connection with its activities hereunder and shall not be
entitled to reimbursement therefor except as provided in this
Agreement.
141
Section
10.06Eligibility
Requirements for the Securities Administrator.
The
Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with
a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any
successor Securities Administrator (i) may not be an originator, the Master
Servicer, the Servicer, the Depositor or an affiliate of the Depositor unless
the Securities Administrator functions are operated through an institutional
trust department of the Securities Administrator, (ii) must be authorized to
exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least “A/F1” by Fitch, if Fitch is a
Rating Agency and if rated by Fitch, or the equivalent rating by S&P or
Xxxxx’x. If no successor Securities Administrator shall have been appointed and
shall have accepted appointment within sixty (60) days after the Securities
Administrator ceases to be the Securities Administrator pursuant to Section
10.07, then the Trustee may (but shall not be obligated to) become the successor
Securities Administrator. The Depositor shall appoint a successor to the
Securities Administrator in accordance with Section 10.07. The Trustee shall
notify the Rating Agencies of any change of Securities
Administrator.
Section
10.07Resignation
and Removal of the Securities Administrator.
The
Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than sixty (60) days before the date specified in such notice when, subject
to
Section 10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within thirty (30) 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.
142
At
least
fifteen (15) calendar days prior to the effective date of such resignation,
the
Securities Administrator shall provide written notice to the Depositor or any
successor pursuant to this Section 10.07.
If
at any
time (i) the Securities Administrator shall cease to be eligible in accordance
with the provisions of Section 10.06 hereof and shall fail to resign after
written request thereto by the Depositor, (ii) the Securities Administrator
shall become incapable of acting, or shall be adjudged as bankrupt or insolvent,
or a receiver of the Securities Administrator or of its property shall be
appointed, or any public officer shall take charge or control of the Securities
Administrator or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii)(A) a tax is imposed with respect to the
Trust
Fund by any state in which the Securities Administrator or the Trust Fund is
located and (B) the imposition of such tax would be avoided by the appointment
of a different Securities Administrator, or (iv) the Securities Administrator
fails to comply with its obligations under Article XIII and such failure is
not
remedied within the lesser of ten (10) calendar days or such period in which
the
applicable Exchange Act Report can be timely filed (without taking into account
any extensions), then, in the case of clauses (i) through (iv), the Depositor
may remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of
which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
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 by the successor Securities Administrator
to the Trustee, one complete set to the Securities Administrator so removed
and
one complete set to the successor so appointed. Notice of any removal of the
Securities Administrator shall be given to each Rating Agency by the successor
Securities Administrator.
Any
resignation or removal of the Securities Administrator and appointment of a
successor Securities Administrator pursuant to any of the provisions of this
Section 10.07 shall become effective upon acceptance by the successor Securities
Administrator of appointment as provided in Section 10.08 hereof.
Section
10.08Successor
Securities Administrator.
Any
successor Securities Administrator (which may be the Trustee) appointed as
provided in Section 10.07 hereof shall execute, acknowledge and deliver to
the
Depositor and to its predecessor Securities Administrator and the Trustee an
instrument accepting such appointment hereunder 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 hereunder, with the like effect as if originally
named as Securities Administrator herein. The Depositor, the Trustee, the Master
Servicer 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.
143
No
successor Securities Administrator shall accept appointment as provided in
this
Section 10.08 unless at the time of such acceptance such successor Securities
Administrator shall be eligible under the provisions of Section 10.06 hereof
and
its appointment shall not adversely affect the then current rating of the
Certificates, as confirmed in writing by each Rating Agency and has provided
to
the Depositor in writing and in form and substance reasonably satisfactory
to
the Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
a replacement Securities Administrator.
Upon
acceptance by a successor Securities Administrator of appointment as provided
in
this Section 10.08, the Depositor shall mail notice of the succession of such
Securities Administrator hereunder to all Holders of Certificates. If the
Depositor fails to mail such notice within ten (10) days after acceptance by
the
successor Securities Administrator of appointment, the successor Securities
Administrator shall cause such notice to be mailed at the expense of the
Depositor.
Section
10.09Merger
or Consolidation of the Securities Administrator.
Any
corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation
or
other entity resulting from any merger, conversion or consolidation to which
the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
10.06 hereof, without the execution or filing of any paper or further act on
the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section
10.10Assignment
or Delegation of Duties by the Securities Administrator.
Except
as expressly provided herein, the Securities Administrator 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 Securities Administrator; provided,
however,
that
the Securities Administrator shall have the right with the prior written consent
of the Depositor (which shall not be unreasonably withheld or delayed), 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 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
Securities Administrator hereunder. Notice of such permitted assignment shall
be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the
fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
144
ARTICLE
XI
TERMINATION
Section
11.01Auction
Call.
On or
after the Optional Termination Date with respect to any Group of Mortgage Loans,
the Master Servicer may, upon the request of the Depositor, exercise its option
to conduct an Auction Call for the purchase of the Mortgage Loans of such Group
and all other Property of the Trust Fund allocable to the related Group of
Mortgage Loans (collectively the “Auctioned
Property”)
on a
non-recourse basis with no representations or warranties of any nature
whatsoever. The Master Servicer shall accommodate such request by the Depositor
to conduct an Auction Call at its sole discretion. If the Master Services
accommodates such request, the Master Servicer shall be entitled to
reimbursement for all fees and expenses incurred. The Auctioned Property shall
be sold by the Trustee as directed by the Depositor or the Master Servicer
to
the entity with the highest bid received by the Master Servicer from closed
bids
solicited by the Master Servicer or its designee; provided,
that
to
effectuate such sale, the Master Servicer or its designee shall have made
reasonable efforts to sell the Auctioned Property for its fair market value
in a
commercially reasonable manner and on commercially reasonable terms, which
includes the good faith solicitation of competitive bids to prospective
purchasers that are recognized broker/dealers for assets of this type and
provided further that, (i) such sale price shall not be less than the Par Value
as certified by the Depositor, (ii) the Master Servicer receives bids from
no
fewer than three (3) prospective purchasers (which may include the Majority
Class 1X Certificateholder or Majority 2X Certificateholder, as applicable)
and
(iii) such sale price shall be deposited with the Master Servicer prior to
the
Distribution Date following the month in which such value is
determined.
The
proceeds of the purchase or sale of the Auctioned Property pursuant to this
Section 11.01 (other than, with respect to any Mortgage Loan and the related
property, the Fair Market Value Excess) will be distributed to the Holders
of
the Certificates of the related Group in accordance with Section 4.01 or 4.02,
as applicable. Any Fair Market Value Excess received in connection with the
purchase of any Group of Mortgage Loans and the related REO Property will be
distributed to the Holders of the Class 1RC or Class 2RC Certificates, as
applicable.
Except
to
the extent provided above with regard to allocating any Fair Market Value Excess
to the holders of the Class 1RC and Class 2RC Certificates, the proceeds of
such
a purchase or sale will be treated as a prepayment of the Mortgage Loans
included in the Auctioned Property for purposes of distributions to
Certificateholders of the related Group. Accordingly, the sale of any Group
of
Mortgage Loans and the related REO Properties as a result of the exercise of
the
Auction Call will result in the final distribution on the Certificates of the
related Group on that Distribution Date.
Section
11.02Termination
upon Liquidation or Purchase of the Mortgage Loans.
Subject
to Section 11.04, the obligations and responsibilities of the Depositor, the
Master Servicer, the Servicers, the Securities Administrator and the Trustee
created hereby with respect to the Trust Fund shall terminate upon the earlier
of: (a) the occurrence of a sale pursuant to Section 11.01 with respect to
each
Group of Mortgage Loans; and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and (ii)
the
distribution to Certificateholders of all amounts required to be distributed
to
them pursuant to this Agreement. In no event shall the trusts created hereby
continue beyond the expiration of 21 years from the death of the survivor of
the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to
the Court of St. James’s, living on the date hereof.
145
Section
11.03Final
Distribution on the Certificates.
If, on
any Remittance Date, the Servicers notify the Securities Administrator that
there are no Outstanding Mortgage Loans of any Group and no other funds or
assets in the Trust Fund allocable to the related Group of Certificates other
than funds in the Collection Account, the Securities Administrator shall
promptly send a Notice of Final Distribution to the applicable
Certificateholders. If an Auction Call is requested pursuant to Section 11.01,
the Master Servicer, pursuant to the applicable Step 2 Assignment Agreements
and
by no later than the tenth (10th)
day of
the month of final distribution, shall notify the Trustee, each Servicer and
the
Securities Administrator of the final Distribution Date and of the applicable
sale price of the Auctioned Property.
A
Notice
of Final Distribution, specifying the Distribution Date on which
Certificateholders of any Group may surrender their Certificates for payment
of
the final distribution and cancellation, shall be given promptly by the
Securities Administrator by letter to Certificateholders of such Group mailed
not later than the fifteenth (15th)
day of
the month of such final distribution. Any such Notice of Final Distribution
shall specify (a) the Distribution Date upon which final distribution on the
Certificates of such Group will be made upon presentation and surrender of
the
applicable Certificates at the office therein designated, (b) the amount of
such
final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being
made
only upon presentation and surrender of the applicable Certificates at the
office therein specified. The Securities Administrator will give such Notice
of
Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In
the
event the Auctioned Property is purchased or sold pursuant to Section 11.01
and
pursuant to the applicable Step 2 Assignment Agreement, the Master Servicer
on
behalf of the Trustee is required thereunder to remit to the Securities
Administrator the applicable Termination Price on the applicable Remittance
Date
immediately preceding the applicable final Distribution Date. Upon such final
deposit with respect to the Trust Fund allocable to the related Group of
Certificates of and the receipt by the Securities Administrator and the
Custodians of a request for release therefor in the form of Exhibit
L-1,
Exhibit
L-2
,
Exhibit
L-3
or
Exhibit
L-4,
as
applicable, the Master Servicer shall direct the Custodians to release and
the
relevant Custodians shall promptly release to the Master Servicer or its
designee the Custodial Files for the Mortgage Loans included in the Auctioned
Property.
Upon
presentation and surrender of the Certificates of any Group, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due the Depositor, the Master
Servicer, the Securities Administrator, the Trustee and the Custodians
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 4.01 or 4.02, as applicable, in proportion to their respective
Percentage Interests, with respect to Certificateholders of the same Class,
an
amount up to an amount equal to (i) (A) as to each Class of Regular Certificates
of such Group (except the Class 1X Certificates or the Class 2X Certificates,
as
applicable), the Certificate Balance thereof plus accrued interest thereon
and
all other amounts to which such Classes are entitled pursuant to Section 4.01
or
4.02, as applicable and (B) as to the Class 1X Certificates and the Class 2X
Certificates, as applicable, all amounts to which such Certificates are entitled
pursuant to Section 4.01 or 4.02, as applicable, and (ii) as to the Residual
Certificates of such Group, the amount, if any, which remains on deposit in
the
Distribution Account and is allocable to such Group of Certificates after
application pursuant to clause (i) above (other than the amounts retained to
meet claims). The foregoing provisions are intended to distribute to each Class
of Regular Certificates of such Group any accrued and unpaid interest and
principal to which they are entitled based on the Pass-Through Rates and actual
Class Certificate Balances or notional principal balances set forth in the
Preliminary Statement upon liquidation of the portion of the Trust Fund
allocable to such Group of Certificates.
146
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six (6) months after the 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 for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
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
funds and other assets which remain a part of the Trust Fund and are allocable
to the related Group of Certificates. If within one (1) year after the second
notice all Certificates shall not have been surrendered for cancellation, the
Class 1R Certificateholders or Class 2R Certificateholders, as applicable,
shall
be entitled to all unclaimed funds and other assets of the Trust Fund which
remain subject hereto and is allocable to such Group of
Certificates.
Section
11.04Additional
Termination Requirements.
In the
event the Auction Call with respect to any Group of Mortgage Loans is exercised
as provided in Section 11.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee, Master Servicer
and the Securities Administrator have been supplied with an Opinion of Counsel,
at the expense of the entity exercising the call right, to the effect that
the
failure to comply with the requirements of this Section 11.04 will not (i)
result in the imposition of taxes on “prohibited transactions” on any Trust
REMIC as defined in Section 860F of the Code, or (ii) cause any Trust REMIC
to
fail to qualify as a REMIC at any time that any Certificates are
outstanding:
The
Securities Administrator on behalf of the Trustee shall sell the Auctioned
Property to the entity with the highest bid received pursuant to the Auction
Call and, by the next Distribution Date after such sale, shall distribute to
the
Certificateholders of the related Group the proceeds of such sale in complete
liquidation of each of the Trust REMICs of such Group; and
147
The
Securities Administrator shall attach a statement to the final federal income
tax return for each of the Trust REMICs of the related Group stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the ninety
(90) day liquidation period for each such Trust REMIC was the date on which
the
Securities Administrator on behalf of the Trustee sold the assets of the Trust
Fund allocable to such Group of Certificates to the entity with the highest
bid
received pursuant to the Auction Call.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01Amendment.
This
Agreement may be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator, the Custodians and the Trustee (and
the
Master Servicer may request an amendment or consent to any amendment of a
Servicing Agreement as directed by the Depositor) without the consent of any
of
the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any
defective provision herein or in the applicable Servicing Agreement, or to
supplement any provision in this Agreement which may be inconsistent with any
other provision herein or in the applicable Servicing Agreement, (iii) to add
to
the duties of the Depositor, or the Trustee (or with respect to the applicable
Servicing Agreement, of the applicable Servicer), the Master Servicer, the
Securities Administrator or the Custodians, (iv) to add any other provisions
with respect to matters or questions arising hereunder or under the applicable
Servicing Agreement, (v) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in the Prospectus Supplement,
or
to correct or supplement any provision herein which may be inconsistent with
any
other provisions herein or with the provisions of any underlying purchase or
servicing agreement or (vi) to modify, alter, amend, add to or rescind any
of
the terms or provisions contained in this Agreement or in the applicable
Servicing Agreement; provided, that
any
action pursuant to clause (iv) or (vi) above shall not, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall be an expense of the
requesting party, but in any case shall not be an expense of the Trustee, the
Master Servicer, the Securities Administrator, the Custodians or the Trust
Fund,
and shall be addressed to the foregoing entities), 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; it being understood and agreed that any such letter in
and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Custodians, the
Securities Administrator and the Master Servicer also may at any time and from
time to time amend this Agreement (and the Master Servicer shall request the
Servicers amend the applicable Servicing Agreements), without the consent of
the
Certificateholders, to modify, eliminate or add to any of its provisions to
such
extent as shall be necessary or helpful to (i) maintain the qualification of
each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk
of
the imposition of any tax on any Trust REMIC pursuant to the Code that would
be
a claim at any time prior to the final redemption of the Certificates or (iii)
comply with any other requirements of the Code; provided,
that
the
Trustee and the Master Servicer have been provided an Opinion of Counsel, which
opinion shall be an expense of the party requesting such opinion but in any
case
shall not be an expense of the Trustee or the Trust Fund, to the effect that
such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a
tax
or (iii) comply with any such requirements of the Code.
148
This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer, the Custodians, the Securities Administrator and the Trustee (and
the
Master Servicer shall consent to any amendment to the applicable Servicing
Agreement as directed by the Depositor) with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66⅔% of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other
than
as described in clause (i), without the consent of the Holders of Certificates
of such Class evidencing, as to such Class, Percentage Interests aggregating
not
less than 66⅔%, or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding
any contrary provision of this Agreement, the Trustee and the Master Servicer
shall not consent to any amendment to this Agreement or any Servicing Agreement
unless (i) each shall have first received an Opinion of Counsel, which opinion
shall not be an expense of the Trustee, the Master Servicer or the Trust Fund,
to the effect that such amendment will not cause the imposition of any tax
on
any Trust REMIC or the Certificateholders or cause any Trust REMIC to fail
to
qualify as a REMIC at any time that any Certificates are outstanding and (ii)
the party seeking such amendment shall have provided written notice to the
Rating Agencies (with a copy of such notice to the Trustee and the Master
Servicer) of such amendment, stating the provisions of the Agreement to be
amended.
Notwithstanding
the foregoing provisions of this Section 12.01, with respect to any amendment
that significantly modifies the permitted activities of the Trustee or a
Servicer under the applicable Servicing Agreement, any Certificate beneficially
owned by the Depositor or any of its Affiliates or by the Responsible Party
or
any of its Affiliates shall be deemed not to be outstanding (and shall not
be
considered when determining the percentage of Certificateholders consenting
or
when calculating the total number of Certificates entitled to consent) for
purposes of determining if the requisite consents of Certificateholders under
this Section 12.01 have been obtained.
Promptly
after the execution of any amendment to this Agreement or any Servicing
Agreement requiring the consent of Certificateholders, the Master Servicer
shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder and each Rating Agency.
149
It
shall
not be necessary for the consent of Certificateholders under this Section 12.01
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee, the Custodians, the Master Servicer
or the Securities Administrator to enter into an amendment which modifies its
obligations or liabilities without its consent and in all cases without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Trustee, the Custodians, the Master Servicer, the Securities Administrator
or
the Trust Fund), satisfactory to the Trustee, the Master Servicer or the
Securities Administrator, as applicable, that (i) such amendment is permitted
and is not prohibited by this Agreement or the applicable Servicing Agreement
and that all requirements for amending this Agreement or such Servicing
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any Certificateholder
or (B) the conclusion set forth in the immediately preceding clause (A) is
not
required to be reached pursuant to this Section 12.01.
Notwithstanding
the Trustee’s consent to, or the Master Servicer’s request for, any amendment of
any Servicing Agreement pursuant to the terms of this Section 12.01, such
Servicing Agreement cannot be amended without the consent of the applicable
Servicer. Neither the Master Servicer nor the Trustee shall be responsible
for
any failure by such Servicer to consent to any amendment to the applicable
Servicing Agreement.
Notwithstanding
the foregoing, any amendment to this Agreement shall require the prior written
consent of the Swap Provider, if such amendment materially and adversely affects
the rights or interests of the Swap Provider.
Section
12.02Recordation
of Agreement; Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, such recordation shall
be caused to be effected by the Depositor at the expense of the Trust, but
only
if an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders is delivered to
the
Depositor.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
12.03Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
150
Section
12.04Intention
of Parties.
It is
the express intent of the parties hereto that the conveyance (i) of the Mortgage
Loans by the Depositor and (ii) of the Trust Fund by the Depositor to the
Trustee each be, and be construed as, an absolute sale thereof. It is, further,
not the intention of the parties that such conveyances be deemed a pledge
thereof. However, in the event that, notwithstanding the intent of the parties,
such assets are held to be the property of the Depositor, or if for any other
reason this Agreement is held or deemed to create a security interest in either
of such assets, then (i) this Agreement shall be deemed to be a security
agreement within the meaning of the Uniform Commercial Code of the State of
New
York and (ii) the conveyances provided for in this Agreement shall be deemed
to
be an assignment and a grant by the Depositor to the Trustee, for the benefit
of
the Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The
Depositor, for the benefit of the Certificateholders, shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the Trust
Fund, 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 Agreement. The Depositor shall arrange for filing any Uniform
Commercial Code continuation statements in connection with any security interest
granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section
12.05Notices.
(a) The
Securities Administrator shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i)Any
material change or amendment to this Agreement;
(ii)The
occurrence of any Event of Default that has not been cured;
(iii)The
resignation or termination of a Servicer, Master Servicer, Securities
Administrator or the Trustee and the appointment of any successor;
(iv)The
repurchase or substitution of Mortgage Loans pursuant to this Agreement or
the
Sale Agreements; and
(v)The
final
payment to Certificateholders.
(b)In
addition, the Securities Administrator shall promptly make available on its
internet website to each Rating Agency copies of the following:
(i)Each
report to Certificateholders described in Section 4.03.
(ii)The
Servicer’s annual statement of compliance and the accountant’s report described
in the Servicing Agreements; and
(iii)Any
notice of a purchase of a Mortgage Loan pursuant to this Agreement and any
Sale
Agreement.
151
(c) All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to: (a) in the case of the
Depositor, the Purchaser or the Goldman Conduit, to Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Principal Finance
Group/Xxxxxxxxxxx X. Xxxxxxx and Asset Management Group/Senior Asset Manager,
or
such other address as may be hereafter furnished to the Securities Administrator
and the Swap Provider by the Depositor in writing; (b) in the case of Avelo,
to
Avelo Mortgage, L.L.C., 250 X. Xxxx Xxxxxxxxx Freeway, Xxx. 000, Xxxxxx, Xxxxx
00000, Attention: President and General Counsel, or such other address as may
be
hereafter furnished to the Depositor, the Securities Administrator and the
Swap
Provider by Xxxxx in writing; (c) in the case of BNY as Custodian, to The Bank
of New York Trust Company, National Association, 0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: GSAA Home Equity Trust 2007-5, or
such other address as may be hereafter furnished to the Depositor, the
Securities Administrator and the Swap Provider by BNY in writing; (d) in the
case of GreenPoint, to GreenPoint Mortgage Funding, Inc., 000 Xxxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx, or such other address as
may
be hereafter furnished to the Depositor, the Securities Administrator and the
Swap Provider by GreenPoint in writing; (e) in the case of NatCity, National
City Mortgage Co., 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, Attention: Xxx
Xxxxxx, Trader, or such other address as may be hereafter furnished to the
Depositor, the Securities Administrator and the Swap Provider by National City
in writing; (f) in the case of Countrywide and Countrywide Servicing, to
Countrywide Home Loans Servicing LP, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Investor Accounting, or such other address as may be hereafter
furnished to the Depositor, the Securities Administrator and the Swap Provider
by Countrywide Servicing in writing; (g) in the case of Wachovia, to Wachovia
Mortgage Corporation, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 1088, or such other address as may be hereafter furnished to
the
Depositor, the Securities Administrator and the Swap Provider by Xxxxxxxx;
(h)
in the case of Xxxxx Fargo as a Responsible Party and as a Servicer, Xxxxx
Fargo
Bank, National Association, 0000 Xxx Xxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: GSAA 2007-5, or such other address as may be hereafter furnished
to
the Depositor, the Securities Administrator and the Swap Provider by Xxxxx
Fargo
in writing; (i) in the case of the Trustee to its Corporate Trust Office, or
such other address as the Trustee may hereafter furnish to the Depositor and
the
Swap Provider; (j) in the case of the Master Servicer and the Securities
Administrator, Xxxxx Fargo Bank, National Association, P.O. Box 98, Columbia,
Maryland 21046, Attention: Client Manager - GSAA 2007-5 (or for overnight
deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000 Attention: Client
Manager - GSAA 2007-5), or such other address as may be hereafter furnished
to
the Depositor, the Securities Administrator and the Swap Provider by the Master
Servicer in writing; (k) in the case of Xxxxx Fargo, as a Custodian, to Xxxxx
Fargo Bank, National Association, 0000 00xx Xxxxxx XX, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: GSAA 2007-5, or such other address as may be hereafter
furnished to the Depositor, the Securities Administrator and the Swap Provider
by Xxxxx Fargo in writing; (l) in the case of Deutsche Bank as a Custodian,
Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attention: Mortgage Custody - GS0705, or such other address
as
may be hereafter furnished to the Depositor, the Securities Administrator and
the Swap Provider by Deutsche Bank in writing; (m) in the case of U.S. Bank
as a
Custodian, U.S. Bank National Association, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xx.
Xxxx, Xxxxxxxxx 00000, Attention: GSAA Home Equity Trust 2007-5, or such other
address as may be hereafter furnished to the Depositor, the Securities
Administrator and the Swap Provider by the U.S. Bank in writing; (n) in the
case
of the Swap Provider, to the related Swap Provider addressed to it at the
address specified in the Interest Rate Swap Agreement or at any other address
previously furnished in writing to the Trust by the related Swap Provider;
and
(o) in the case of each of the Rating Agencies, the address specified therefor
in the definition corresponding to the name of such Rating Agency. Notices
to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate
Register.
152
Section
12.06Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
12.07Limitation
on Rights of Certificateholders.
The
death or incapacity of any Certificateholder shall not operate to terminate
this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or 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 provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of 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 party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for sixty (60) 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 being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement
of
the provisions of this Section 12.07, each and every Certificateholder and
the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
153
Section
12.08Certificates
Nonassessable and Fully Paid.
It is
the intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
Section
12.09Waiver
of Jury Trial.
EACH
PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Section
12.10Rights
of the Swap Provider.
The
Swap Provider shall be deemed a third party beneficiary of this Agreement to
the
same extent as if it were a party hereto, and shall have the right to enforce
its rights under this Agreement. Promptly upon proposal of any amendment to
this
Agreement requiring consent of the Swap Provider, the Securities Administrator
shall furnish written notification of the substance or a copy of each amendment
to the Swap Provider.
ARTICLE
XIII
EXCHANGE
ACT REPORTING
Section
13.01Filing
Obligations.
The
Master Servicer, the Trustee, the Securities Administrator and each Custodian
shall reasonably cooperate with the Depositor and Securities Administrator
in
connection with the satisfaction of the Depositor’s reporting requirements under
the Exchange Act with respect to the Trust Fund. In addition to the information
specified below, if so requested by the Depositor in writing for the purpose
of
satisfying its reporting obligation under the Exchange Act, the Master Servicer,
the Trustee, the Securities Administrator and each Custodian shall (and the
Master Servicer shall cause each Servicer and subservicer to) provide the
Depositor with (a) such information which is available to such Person without
unreasonable effort or expense and within such timeframe as may be reasonably
requested by the Depositor to comply with the Depositor’s reporting obligations
under the Exchange Act and (b) to the extent such Person is a party (and the
Depositor is not a party) to any agreement or amendment required to be filed,
copies of such agreement or amendment in XXXXX-compatible form.
In
the
event that the Securities Administrator becomes aware that it will be unable
to
timely file with the Commission all or any required portion of any Form 8-K,
10-D or 10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the delivery
deadlines set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify the Depositor. In the case of Form 10-D
and
10-K, the parties to this Agreement 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-DA and 10-KA as applicable, pursuant
to
Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D unless directed by the Depositor to file
a
Form 8-K with such Form 8-K Disclosure Information. In the event that any
previously filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the
Securities Administrator shall notify the Depositor and prepare any necessary
Form 8-KA, Form 10-DA or Form 10-KA. Any Form 15, Form 12b-25 or any amendment
to Form 8-K or Form 10-D shall be signed by a duly authorized representative
of
the Master Servicer. 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 13.01 related to
the
timely preparation and filing of Form 15, a Form 12b-25 or any amendment to
Form
8-K, Form 10-D or Form 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 Form 8-K, Form 10-D or Form 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.
154
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
13.02Form
8-K Filings.
The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter within four (4) 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 13.02 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
13.02.
155
As
set
forth on Exhibit M 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
(2nd)
Business Day after the occurrence of a Reportable Event each of the Securities
Administrator, the Custodians, the Master Servicer and the Depositor shall
be
required to provide to the Securities Administrator and 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
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.
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 (4th) Business Day after
the Reportable Event, a duly authorized representative of the Master Servicer
shall sign the Form 8-K and return such signed Form 8-K to the Securities
Administrator, and no later than 5:30 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 13.01. Promptly (but no later than one (1) 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, GSAA 2007-5, by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at (000) 000-0000. The
parties to this Agreement acknowledge that the performance by the Securities
Administrator of its duties under this Section 13.02 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 13.02. 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 (other than an Affiliate)
needed to prepare, arrange for execution or file such Form 8-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section
13.03Form
10-D Filings.
Within
fifteen days after each Distribution Date (subject to permitted extensions
under
the Exchange Act and until a Form 15 is filed pursuant to Section 13.05), the
Securities Administrator shall prepare and file with the Commission, and the
Master Servicer shall sign on behalf of the Depositor 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 13.03.
156
As
set
forth on Exhibit N hereto, within five (5) calendar days after the related
Distribution Date, (i) certain parties to the GSAA Home Equity Trust 2007-5
Asset-Backed Certificates 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 13.03.
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 (2) Business Days following the tenth (10th) calendar day after
the related Distribution Date, a duly authorized representative of the Master
Servicer shall sign the Form 10-D and return such signed Form 10-D to the
Securities Administrator and Depositor, and no later than 5:30 p.m. New York
City time on the fifteenth (15th) 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 13.01. Promptly (but no later than one (1) 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, GSAA 2007-5, by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at (000) 000-0000. Each
party to this Agreement acknowledges that the performance by the Securities
Administrator of its duties under this Section 13.03 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 13.03. 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 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.
157
Section
13.04Form
10-K Filings.
Within
ninety (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 and continuing until the Trust has been
deregistered with the Commission, 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 and the Master Servicer
(each such party, a “Reporting
Servicer”)
as
described below, (ii)(A) the annual reports on assessment of compliance with
servicing criteria for each Reporting Servicer, as described under this Section
13.04 and Section 13.07, and (B) if each Reporting Servicer’s report on
assessment of compliance with servicing criteria described under Section 13.04
and Section 13.07 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 13.04 and Section 13.07 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 13.07, and (B)
if
any registered public accounting firm attestation report described under Section
13.07 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 13.06.
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 13.04.
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 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.
158
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.
As
set
forth on Exhibit O hereto, no later than March 15 of each year that the Trust
is
subject to the Exchange Act reporting requirements, commencing in 2008 and
continuing until the Trust has been deregistered with the Commission, (i)
certain parties to the GSAA Home Equity Trust 2007-5 Asset-Backed Certificates
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 13.04.
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 (4th)
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 13.01. Promptly (but no later than
one
(1) 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-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 13.04 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
13.04, Section 13.06, Section 13.01 and Section 13.07. 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.
159
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 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.
Section
13.05Form
15 Filing.
On
or
before January 30 of the first year in which the Securities Administrator is
able to do so under applicable law, the Securities Administrator shall prepare,
sign and file a Form 15 relating to the automatic suspension of reporting in
respect of the Trust Fund under the Exchange Act.
Section
13.06Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a certification, (the “Xxxxxxxx-Xxxxx
Certification”)
required by Rules 13a-14(d) and 15(d)-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
of
the Commission promulgated thereunder). 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 J-1 (in the case of the Master Servicer)
and
Exhibit J-2 (in the case of the Securities Administrator), 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 Depositor shall serve as the Certifying Person on behalf
of
the Trust. In the event that prior to the filing date of the Form 10-K in March
of each year, the Securities Administrator or the Master Servicer has actual
knowledge of information material to the Xxxxxxxx-Xxxxx Certification, the
Securities Administrator or the Master Servicer, as the case may be, shall
promptly notify the Depositor. The respective parties hereto agree to cooperate
with all reasonable requests made by any Certifying Person or Certification
Party in connection with such Person’s attempt to conduct any due diligence that
such Person reasonably believes to be appropriate in order to allow it to
deliver any Xxxxxxxx-Xxxxx Certification or portion thereof with respect to
the
Trust Fund. In the event the Master Servicer, the Securities Administrator
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 13.06 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.
160
Section
13.07Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 15th of each calendar year, commencing in 2008:
(1) Each
of
the Master Servicer, the Securities Administrator and the Custodians shall
deliver to the Depositor and the Securities Administrator a report regarding
the
Master Servicer’s, the Securities Administrator’s or Custodians’, as applicable,
assessment of compliance with the Servicing Criteria applicable to it during
the
immediately preceding calendar year, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB; provided,
however,
the
Securities Administrator and Custodians shall deliver such report the Trust
fund
is no longer reporting under the Exchange Act after a Form 15 is filed pursuant
to Section 13.05. Such report shall be signed by an authorized officer of such
Person and shall address each of the Servicing Criteria applicable to it
identified in Exhibit
K
hereto
delivered to the Depositor concurrently with the execution of this Agreement.
To
the extent any of the Servicing Criteria so specified are not applicable to
such
Person, with respect to asset-backed securities transactions taken as a whole
involving such Person and that are backed by the same asset type backing the
Certificates, such report shall include such a statement to that effect. The
Depositor and its respective officers and directors shall be entitled to rely
on
upon each such servicing criteria assessment.
(2) Each
of
the Master Servicer, the Securities Administrator and the Custodians shall
deliver to the Depositor, the Securities Administrator and the Master Servicer
a
report of a registered public accounting firm that attests to, and reports
on,
the assessment of compliance made by Master Servicer, the Securities
Administrator or the Custodians, as applicable, and delivered pursuant to the
preceding paragraphs. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act, including, without limitation that 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. To the extent
any of the Servicing Criteria are not applicable to such Person, with respect
to
asset-backed securities transactions taken as a whole involving such Person
and
that are backed by the same asset type backing the Certificates, such report
shall include such a statement to that effect.
(3) The
Master Servicer shall cause each Servicer and Reporting Subcontractor to deliver
to the Depositor an assessment of compliance and accountant’s attestation as and
when provided in paragraphs (a) and (b) of this Section 13.07.
(4) The
Securities Administrator shall cause each Reporting Subcontractor under its
employ, if any, to deliver to the Depositor and the Master Servicer an
assessment of compliance and accountant’s attestation as and when provided in
paragraphs (a) and (b) of this Section.
161
(b) Each
assessment of compliance provided by the Securities Administrator, the Master
Servicer or the Custodians pursuant to Section 13.07(a)(2) shall address each
of
the Servicing Criteria applicable to it specified on a Exhibit
K
hereto
delivered to the Depositor concurrently with the execution of this Agreement
or,
in the case of a securities administrator, master servicer or custodian
subsequently appointed as such, on or prior to the date of such appointment.
An
assessment of compliance provided by a Subcontractor pursuant to Section
13.07(a)(3) or (4) need not address any elements of the Servicing Criteria
other
than those specified pursuant to Section 13.07(a)(1).
Section
13.08Use
of
Subservicers and Subcontractors.
(a) The
Master Servicer shall cause any subservicer used by the Master Servicer and
shall cause each Servicer to cause any subservicer used by such servicer for
the
benefit of the Depositor to comply with the provisions of this Article XIII
to
the same extent as if such Servicer or subservicer were the Master Servicer
(except with respect to the Master Servicer’s duties with respect to preparing
and filing any Exchange Act Reports or as the Certifying Person). The Master
Servicer shall be responsible for obtaining from each Servicer and subservicer
and delivering to the Depositor any servicer compliance statement required
to be
delivered by such Servicer or subservicer pursuant to the second paragraph
of
Section 13.04, any assessment of compliance and attestation required to be
delivered by such Servicer or subservicer under Section 13.07 and any
certification required to be delivered to the Certifying Person under Section
13.05 as and when required to be delivered.
(b) It
shall
not be necessary for the Master Servicer, any Servicer, any subservicer or
the
Securities Administrator to seek the consent of the Depositor or any other
party
hereto to the utilization of any Subcontractor. The Master Servicer or the
Securities Administrator, as applicable, shall promptly upon request provide
to
the Depositor (or any designee of the Depositor, such as the Master Servicer
or
administrator) a written description (in form and substance satisfactory to
the
Depositor) of the role and function of each Subcontractor utilized by such
Person (or in the case of the Master Servicer, any Servicer or any subservicer),
specifying (i) the identity of each such Subcontractor, (ii) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Securities Administrator, as
applicable, shall cause any such Subcontractor used by such Person (or in the
case of the Master Servicer, any Servicer or any subservicer) for the benefit
of
the Depositor to comply with the provisions of Section 13.07 of this Agreement
to the same extent as if such Subcontractor were the Master Servicer (except
with respect to the Master Servicer’s duties with respect to preparing and
filing any Exchange Act Reports or as the Certifying Person) or the Securities
Administrator, as applicable. The Master Servicer or the Securities
Administrator, as applicable, shall be responsible for obtaining from each
Subcontractor and delivering to the Depositor and the Master Servicer, any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 13.07, in each case as and when required to be
delivered.
162
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
GS
MORTGAGE SECURITIES CORP.
By:
/s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
DEUTSCHE
BANK NATIONAL TRUST COMPANY, solely in its capacity as Trustee and Custodian
and
not in its individual capacity
By:
/s/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Vice President
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Vice President
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer, Securities Administrator
and a Custodian
By:
/s/
Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Vice President
[SIGNATURES
CONTINUE]
THE
BANK
OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION, as a Custodian
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
U.S.
BANK
NATIONAL ASSOCIATION, as a Custodian
By:
/s/
Xxxxxxx Xxxx
Name:
Xxxxxxx Xxxx
Title:
Vice President
SCHEDULE
I
Mortgage
Loan Schedule (Group I Mortgage Loans)
[On
File
with the Securities Administrator as provided by the Depositor]
I-1
SCHEDULE
II
Mortgage
Loan Schedule (Group II Mortgage Loans)
[On
File
with the Securities Administrator as provided by the Depositor]
II-1
EXHIBIT
A
FORM
OF CLASS 1AV1, CLASS 2A1A, CLASS 2A1B, CLASS 1AF2A, CLASS 1AF2B, CLASS 2A2A,
CLASS 2A2B, CLASS 1AF3A, CLASS 1AF3B, CLASS 2A3A, CLASS 2A3B, CLASS 1AF4A,
CLASS
1AF4B, CLASS 1AF5A, CLASS 1AF5B, CLASS 1AF6, CLASS 1AF7A, CLASS 1AF7B, CLASS
1M1, CLASS 2M1, CLASS 1M2, CLASS 2M2, CLASS 1M3, CLASS 2M3, CLASS 1M4, CLASS
2M4, CLASS 1M5, CLASS 2M5, CLASS 1M6, CLASS 2M6, CLASS 1B1, CLASS 2B1, CLASS
1B2, CLASS 2B2, CLASS 1B3 AND CLASS 2B3 CERTIFICATES
IF
THIS
CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE DEEMED
TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR LETTER
AND
THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS
SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH CERTIFICATE WERE
EVIDENCED BY A PHYSICAL CERTIFICATE.
IN
THE
EVENT THAT A TRANSFER OF A PRIVATE CERTIFICATE WHICH IS A BOOK-ENTRY CERTIFICATE
IS TO BE MADE IN RELIANCE UPON AN EXEMPTION FROM THE SECURITIES ACT AND SUCH
LAWS, IN ORDER TO ASSURE COMPLIANCE WITH THE SECURITIES ACT AND SUCH LAWS,
THE
CERTIFICATEHOLDER DESIRING TO EFFECT SUCH TRANSFER WILL BE DEEMED TO HAVE MADE
AS OF THE TRANSFER DATE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
CERTIFICATE IN RESPECT OF SUCH CERTIFICATE AND THE TRANSFEREE WILL BE DEEMED
TO
HAVE MADE AS OF THE TRANSFER DATE EACH OF THE CERTIFICATIONS SET FORTH IN THE
RULE 144A LETTER IN RESPECT OF SUCH CERTIFICATE, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN
A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”),
AND
CERTAIN OTHER ASSETS.
A-1
|
Certificate
No.
|
:
|
|||
|
Cut-off
Date
|
:
|
April
1, 2007
|
||
|
First
Distribution Date
|
:
|
May
25, 2007
|
||
|
Initial
Certificate Balance of
this
Certificate
(“Denomination”)
|
:
|
|||
|
Initial
Certificate Balances of
all
Certificates of this Class
|
:
|
|||
|
CUSIP
|
||||
|
ISIN
|
||||
A-2
GS
MORTGAGE SECURITIES CORP.
GSAA
Home
Equity Trust 2007-5
Asset-Backed
Certificates, Series 2007-5
[Class
1AV1] [Class 2A1A] [Class 2A1B] [Class 1AF2A] [Class 1AF2B] [Class 2A2A]
[Class 2A2B] [Class 1AF3A] [Class 1AF3B] [Class 2A3A] [Class 2A3B]
[Class 1AF4A] [Class 1AF4B] [Class 1AF5A] [Class 1AF5B] [Class 1AF6] [Class
1AF7A] [Class 1AF7B] [Class 1M1] [Class 2M1] [Class 1M2] [Class 2M2] [Class
1M3]
[Class 2M3] [Class 1M4] [Class 2M4] [Class 1M5] [Class 2M5] [Class 1M6] [Class
2M6] [Class 1B1] [Class 2B1] [Class 1B2] [Class 2B2] [Class 1B3] [Class
2B3]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Securities Administrator or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate of the denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Master Servicing and Trust Agreement dated as of the Cut-off
Date
specified above (the “Agreement”)
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”)
and as
a custodian, Xxxxx Fargo Bank, National Association, as Master Servicer (in
such
capacity, the “Master
Servicer”),
Securities Administrator (in such capacity, the “Securities
Administrator”)
and as
a custodian, The Bank of New York Trust Company, National Association, as a
custodian and U.S. Bank National Association, as a custodian. To the extent
not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
* * *
Schedule
II-3
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Dated:
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity, but solely
as
Securities Administrator
By:
Authenticated:
By:
Authorized
Signatory of
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
not
in
its individual capacity,
but
solely as Securities Administrator
Schedule
II-4
GS
MORTGAGE SECURITIES CORP.
GSAA
Home Equity Trust 2007-5
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
GSAA
Home Equity Trust 2007-5 Asset-Backed Certificates, of the Series specified
on
the face hereof (herein collectively called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee and the other parties to the Agreement.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such day is not a Business Day, the Business Day immediately
following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided,
however,
that
for any Definitive Certificates, the Record Date shall be the last Business
Day
of the month immediately preceding the month of such Distribution
Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Securities Administrator in writing at least five (5) Business
Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or,
if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment
and
surrender of such Certificate at the office designated by the Securities
Administrator for such purposes, or such other location specified in the notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Trustee and the other parties to the Agreement with the consent
of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether
or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
Schedule
II-5
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Securities Administrator upon surrender of this Certificate for registration
of transfer at the office designated by the Securities Administrator for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by the holder hereof or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
The
Trustee, the Depositor and the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Trustee, the Securities Administrator, nor any
such agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans of any Group is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans of such Group and all property acquired in respect
of the Mortgage Loans of such Group at a purchase price determined and in the
manner as provided in the Agreement. The obligations and responsibilities
created by this Agreement will terminate as provided in Section 11.02 of the
Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
A-6
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
<
font id="TAB2" style="LETTER-SPACING: 9pt">
<
font id="TAB2" style="LETTER-SPACING: 9pt">
<
font id="TAB2" style="LETTER-SPACING: 9pt">
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_____________________________________________________________________________.
Dated:
Signature
by or on behalf of assignor
Schedule
II-7
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
,
, &
;amp
;#16 0;
<
font id="TAB2" style="LETTER-SPACING: 9pt">
for
the
account of , &
;#16
0;
<
font id="TAB2" style="LETTER-SPACING: 9pt">
account
number ______, or, if mailed by check, to .
<
font id="TAB2" style="LETTER-SPACING: 9pt">
Applicable
statements should be mailed to ,
<
font id="TAB2" style="LETTER-SPACING: 9pt"> .
This
information is provided by , &
;#16
0;
the
assignee named above, or ,
as
its
agent.
A-8
EXHIBIT
B
FORM
OF CLASS 1P AND CLASS 2P CERTIFICATES
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR CERTIFICATE
(THE “TRANSFEROR CERTIFICATE”) IN THE FORM OF EXHIBIT H TO THE AGREEMENT
REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE
144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR
(II)
THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE
IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I
AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR,
TO
THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO
ANY
LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
B-1
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
April
25, 2007
|
|
Notional
Certificate Balance of this Certificate
|
:
|
$100
|
|
Percentage
Interest of this Certificate
(“Denomination”)
|
:
|
[_____]%
|
|
CUSIP
|
:
|
|
|
ISIN
|
:
|
B-2
GS
MORTGAGE SECURITIES CORP.
GSAA
Home
Equity Trust 2007-5
Asset-Backed
Certificates, Series 2007-5
[Class 1P]
[Class 2P]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate of the denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Master Servicing and Trust Agreement dated as of the Cut-off
Date
specified above (the “Agreement”)
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”)
and as
a custodian, Xxxxx Fargo Bank, National Association, as Master Servicer (in
such
capacity, the “Master
Servicer”),
Securities Administrator (in such capacity, the “Securities
Administrator”)
and as
a custodian, The Bank of New York Trust Company, National Association, as a
custodian and U.S. Bank National Association, as a custodian. To the extent
not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This
Certificate does not have a Pass-Through Rate and will be entitled to
distributions only to the extent set forth in the Agreement. In addition, any
distribution of the proceeds of any remaining assets of the Trust will be made
only upon presentment and surrender of this Certificate at the office designated
by the Securities Administrator for such purposes or the office or agency
maintained by the Securities Administrator.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933
Act”),
and
any applicable state securities laws or is made in accordance with the 1933
Act
and such laws. In the event of any such transfer, the Securities Administrator
shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Agreement) and deliver either (i) a
Rule
144A Letter, (in substantially the form attached to the Agreement), or (ii)
a
written Opinion of Counsel to the Securities Administrator that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from the 1933 Act or is being made pursuant to the 1933
Act,
which Opinion of Counsel shall be an expense of the transferor. No transfer
of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee
of
such Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA or Section 4975 of the Code or
any
materially similar provisions of applicable federal, state or local law
(“Similar
Law”)
or a
person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Securities Administrator,
or (ii) if the transferee is an insurance company and the certificate has been
the subject of an ERISA-Qualifying Underwriting, a representation letter that
it
is purchasing such Certificates with the assets of its general account and
that
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, or (iii) in the case
of
a Certificate presented for registration in the name of an employee benefit
plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments) or a plan subject to
Similar Law, or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan’s or arrangement’s assets, an
Opinion of Counsel satisfactory to the Securities Administrator, which Opinion
of Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Trustee or the Trust Fund, addressed to the Securities
Administrator, the Trustee and the Depositor to the effect that the purchase
and
holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code
or
any Similar Law and will not subject the Trustee to any obligation in addition
to those expressly undertaken in this Agreement or to any
liability.
B-3
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
* * *
B-4
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Dated:
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity, but solely
as
Securities Administrator
By:
Authenticated:
By:
Authorized
Signatory of
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
not
in
its individual capacity,
but
solely as Securities Administrator
B-5
GS
MORTGAGE SECURITIES CORP.
GSAA
Home
Equity Trust 2007-5
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
GSAA
Home Equity Trust 2007-5 Asset-Backed Certificates, of the Series specified
on
the face hereof (herein collectively called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee and the other parties to the Agreement.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Securities Administrator in writing at least five (5) Business
Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or,
if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment
and
surrender of such Certificate at the office designated by the Securities
Administrator for such purposes or such other location specified in the notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Trustee and the other parties to the Agreement with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
B-6
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Securities Administrator upon surrender of this Certificate for registration
of transfer at the office designated by the Securities Administrator for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by the holder hereof or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
The
Trustee, the Depositor and the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Trustee, the Depositor, the Securities Administrator, nor any
such agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans of any Group is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans of such Group and all property acquired in respect
of the Mortgage Loans of such Group at a purchase price determined and in the
manner as provided in the Agreement. The obligations and responsibilities
created by this Agreement will terminate as provided in Section 11.02 of the
Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
B-7
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address: .
Dated:
Signature
by or on behalf of assignor
B-8
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds to
, ,
,
for
the
account of ,
account
number ,
or, if
mailed by check, to ,
Applicable
statements should be mailed to ,
.
This
information is provided by ,
the
assignee named above, or ,
as
its
agent.
B-9
EXHIBIT
C
FORM
OF CLASS 1R, CLASS 2R, CLASS 1RC, CLASS 2RC,
CLASS
1RX AND CLASS 2RX CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER AFFIDAVIT
IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER
TO
THE EFFECT THAT SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR AN
OPINION
OF COUNSEL AS DESCRIBED IN THE AGREEMENT. IN
THE
EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER
TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO
SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF
ANY SUCH
PLAN OR ARRANGEMENT WITHOUT AN OPINION OF COUNSEL AS DESCRIBED IN THE AGREEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO
EFFECT.
|
Certificate
No.
|
:
|
[1R][2R][1RC][2RC][1RX][2RX]
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$100
|
|
Initial
Certificate Balance of all Certificates of this Class:
|
:
|
$100
|
|
CUSIP
|
:
|
|
|
ISIN
|
:
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C-1
GS
MORTGAGE SECURITIES CORP.
GSAA
Home
Equity Trust 2007-5
Asset-Backed
Certificates, Series 2007-5
Class [1R][2R][1RC][2RC][1RX][2RX]
evidencing
a percentage interest in the distributions allocable to the
Certificates
of the above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Master Servicer, the Securities Administrator or the Trustee referred to
below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage
Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that [____________] is the registered owner of the Percentage
Interest
specified above of any monthly distributions due to the
Class [1R][2R][1RC][2RC][1RX][2RX] Certificates pursuant to a Master
Servicing and Trust Agreement dated as of the Cut-off Date specified above
(the
“Agreement”)
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”)
and as
a custodian, Xxxxx Fargo Bank, National Association, as Master Servicer
(in such
capacity, the “Master
Servicer”),
Securities Administrator (in such capacity, the “Securities
Administrator”)
and as
a custodian, The Bank of New York Trust Company, National Association,
as a
custodian and U.S. Bank National Association, as a custodian. To the extent
not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund
will be
made only upon presentment and surrender of this
Class [1R][2R][1RC][2RC][1RX][2RX] Certificate at the office designated by
the Securities Administrator for such purposes.
No
transfer of a Class [1R][2R][1RC][2RC][1RX][2RX] Certificate shall be made
unless the Securities Administrator shall have received a representation
letter
from the transferee of such Certificate, acceptable to and in form and
substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of
ERISA, a plan or arrangement subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect
such
transfer, which representation letter shall not be an expense of the Securities
Administrator or the Trust Fund, or, alternatively, an opinion of counsel
as
described in the Agreement. In the event that such representation is violated,
or any attempt is made to transfer to a plan or arrangement subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or
a plan subject to Similar Law, or a person acting on behalf of any such
plan or
arrangement or using the assets of any such plan or arrangement, without
an
opinion of counsel as described in the Agreement, such attempted transfer
or
acquisition shall be void and of no effect.
C-2
Each
Holder of this Class [1R][2R][1RC][2RC][1RX][2RX] Certificate shall be
deemed by the acceptance or acquisition an Ownership Interest in this
Class [1R][2R][1RC][2RC] [1RX][2RX] Certificate to have agreed to be bound
by the following provisions, and the rights of each Person acquiring any
Ownership Interest in this Class [1R][2R][1RC][2RC][1RX][2RX] Certificate
are expressly subject to the following provisions: (i) each Person holding
or acquiring any Ownership Interest in this
Class [1R][2R][1RC][2RC][1RX][2RX] Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any
change
or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class [1R][2R][1RC][2RC][1RX][2RX] Certificate
may be registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of this Certificate
unless, in addition to the certificates required to be delivered to the
Securities Administrator under Section 5.02(b) of the Agreement, the
Securities Administrator shall have been furnished with a Transfer Affidavit
of
the initial owner or the proposed transferee in the form attached as
Exhibit G
to the
Agreement, (iii) each Person holding or acquiring any Ownership Interest in
this Class [1R][2R][1RC][2RC][1RX][2RX] Certificate shall agree (A) to
obtain a Transfer Affidavit from any other Person to whom such Person attempts
to Transfer its Ownership Interest this Class [1R][2R][1RC][2RC][1RX][2RX]
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of this Class [1R][2R][1RC][2RC][1RX][2RX] Certificate, (C) not to
cause income with respect to the Class [1R][2R][1RC][2RC][1RX][2RX]
Certificate to be attributable to a foreign permanent establishment or
fixed
base, within the meaning of an applicable income tax treaty, of such Person
or
any other U.S. Person and (D) not to Transfer the Ownership Interest in
this Class [1R][2R][1RC][2RC][1RX][2RX] Certificate or to cause the
Transfer of the Ownership Interest in this
Class [1R][2R][1RC][2RC][1RX][2RX] Certificate to any other Person if it
has actual knowledge that such Person is not a Permitted Transferee and
(iv) any attempted or purported Transfer of the Ownership Interest in this
Class [1R][2R][1RC][2RC][1RX][2RX]Certificate in violation of the
provisions herein shall be absolutely null and void and shall vest no rights
in
the purported Transferee.
Reference
is hereby made to the further provisions of this Certificate set forth
on the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or
be valid
for any purpose unless manually authenticated by an authorized signatory
of the
Securities Administrator.
C-3
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity, but solely
as
Securities Administrator
By:
Authenticated:
By:
Authorized
Signatory of
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
not
in
its individual capacity,
but
solely as Securities Administrator
C-4
GS
MORTGAGE SECURITIES CORP.
GSAA
Home
Equity Trust 2007-5
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated
as GSAA
Home Equity Trust 2007-5 Asset-Backed Certificates, of the Series specified
on
the face hereof (herein collectively called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created
by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders
for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee and the other parties to the Agreement.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of each month or, if such day is not a Business Day, the Business Day
immediately following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof,
to the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on such Distribution Date pursuant to the Agreement. The Record Date for
each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Securities Administrator in writing at least five (5) Business
Days
prior to the related Record Date and such Certificateholder shall satisfy
the
conditions to receive such form of payment set forth in the Agreement,
or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment
and
surrender of such Certificate at the office designated by the Securities
Administrator for such purposes, or such other location specified in the
notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by
the
Depositor, the Trustee and the other parties to the Agreement with the
consent
of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such
Holder
and upon all future Holders of this Certificate and of any Certificate
issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether
or
not notation of such consent is made upon this Certificate. The Agreement
also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
C-5
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Securities Administrator upon surrender of this Certificate for registration
of transfer at the office designated by the Securities Administrator for
such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by the holder hereof or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued
to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement
and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the
Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient
to
cover any tax or other governmental charge payable in connection
therewith.
The
Trustee, the Depositor, the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Trustee or Securities Administrator, nor
any such
agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans of any Group is less than or equal to 10% of the Cut-off
Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust
Fund
all remaining Mortgage Loans of such Group and all property acquired in
respect
of the Mortgage Loans of such Group at a purchase price determined and
in the
manner as provided in the Agreement. The obligations and responsibilities
created by this Agreement will terminate as provided in Section 11.02 of
the
Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
C-6
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on
the
Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator to issue a new Certificate
of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address: .
Dated:
Signature
by or on behalf of assignor
C-7
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds to
, ,
___________________________________________________________________________,
for
the
account of ,
_____________________________________________________________________
account
number ,
or, if
mailed by check, to ,
___________________________________________
Applicable
statements should be mailed to ,
______________________________________________________
_____________________________________________________________________________.
This
information is provided by ,
the
assignee named above, or ,
as
its
agent.
C-8
EXHIBIT
D
FORM
OF CLASS 1X AND CLASS 2X CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF
1986, AS AMENDED (THE “CODE”)
AND
CERTAIN OTHER ASSETS
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED
TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR CERTIFICATE
(THE “TRANSFEROR CERTIFICATE”) IN THE FORM OF EXHIBIT H TO THE AGREEMENT
REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES
A RULE
144A LETTER (THE “RULE 144A LETTER”) IN THE FORM OF EXHIBIT I TO THE AGREEMENT
REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION
OF
COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER
MAY BE
MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR
LAW”)
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR
A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE
IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING
THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS
I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR,
TO
THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF
ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT
OR TO ANY
LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT
TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
D-1
|
Certificate
No.
|
:
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[1X][2X]-1
|
|
Cut-off
Date
|
:
|
April
1, 2007
|
|
First
Distribution Date
|
:
|
May
25, 2007
|
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
100%
|
|
CUSIP
|
:
|
|
|
ISIN
|
:
|
D-2
GS
MORTGAGE SECURITIES CORP.
GSAA
Home Equity Trust 2007-5
Asset-Backed
Certificates, Series 2007-5
[Class
1X][Class 2X]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in,
and is
not guaranteed by the Depositor the Master Servicer, to Securities Administrator
or the Trustee referred to below or any of their respective affiliates.
Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of
this
Certificate by the aggregate of the denominations of all Certificates of
the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Master Servicing and Trust Agreement dated as of the Cut-off
Date
specified above (the “Agreement”)
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”)
and as
a custodian, Xxxxx Fargo Bank, National Association, as Master Servicer
(in such
capacity, the “Master
Servicer”),
Securities Administrator (in such capacity, the “Securities
Administrator”)
and as
a custodian, The Bank of New York Trust Company, National Association,
as a
custodian and U.S. Bank National Association, as a custodian. To the extent
not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
This
Certificate does not have a Pass-Through Rate and will be entitled to
distributions only to the extent set forth in the Agreement. In addition,
any
distribution of the proceeds of any remaining assets of the Trust will
be made
only upon presentment and surrender of this Certificate at the office designated
by the Securities Administrator for such purposes or the office or agency
maintained by the Securities Administrator.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933,
as
amended (the “1933
Act”),
and
any applicable state securities laws or is made in accordance with the
1933 Act
and such laws. In the event of any such transfer, the Securities Administrator
shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Agreement) and deliver either (i)
a Rule
144A Letter (in substantially the form attached to the Agreement), or (ii)
a
written Opinion of Counsel to the Securities Administrator that such transfer
may be made pursuant to an exemption, describing the applicable exemption
and
the basis therefor, from the 1933 Act or is being made pursuant to the
1933 Act,
which Opinion of Counsel shall be an expense of the transferor. No transfer
of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee
of
such Certificate, acceptable to and in form and substance satisfactory
to the
Securities Administrator, to the effect that such transferee is not an
employee
benefit plan subject to Section 406 of ERISA or Section 4975 of the Code
or any
materially similar provisions of applicable federal, state or local law
(“Similar
Law”)
or a
person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Securities Administrator,
or (ii) if the transferee is an insurance company and the certificate has
been
the subject of an ERISA-Qualifying Underwriting, a representation letter
that it
is purchasing such Certificates with the assets of its general account
and that
the purchase and holding of such Certificates satisfy the requirements
for
exemptive relief under Sections I and III of PTCE 95-60, or (iii) in the
case of
a Certificate presented for registration in the name of an employee benefit
plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the
Code
(or comparable provisions of any subsequent enactments) or a plan subject
to
Similar Law, or a trustee of any such plan or any other person acting on
behalf
of any such plan or arrangement or using such plan’s or arrangement’s assets, an
Opinion of Counsel satisfactory to the Securities Administrator, which
Opinion
of Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Trustee or the Trust Fund, addressed to the Securities
Administrator, the Trustee and the Depositor to the effect that the purchase
and
holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the
Code or
any Similar Law and will not subject the Trustee to any obligation in addition
to those expressly undertaken in this Agreement or to any
liability.
D-3
Reference
is hereby made to the further provisions of this Certificate set forth
on the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or
be valid
for any purpose unless manually authenticated by an authorized signatory
of the
Securities Administrator.
* * *
D-4
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity, but solely
as
Securities Administrator
By:_______________________________________
Authenticated:
By:
Authorized
Signatory of
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
not
in
its individual capacity,
but
solely as Securities Administrator
D-5
GS
MORTGAGE SECURITIES CORP.
GSAA
Home Equity Trust 2007-5
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated
as GSAA
Home Equity Trust 2007-5 Asset-Backed Certificates, of the Series specified
on
the face hereof (herein collectively called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created
by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders
for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee and the other parties to the Agreement.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th
day of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof,
to the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Securities Administrator in writing at least five (5) Business
Days
prior to the related Record Date and such Certificateholder shall satisfy
the
conditions to receive such form of payment set forth in the Agreement,
or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment
and
surrender of such Certificate at the office designated by the Securities
Administrator for such purposes or such other location specified in the
notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee
and
the rights of the Certificateholders under the Agreement at any time by
the
Trustee and the other parties to the Agreement with the consent of the
Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder
of this
Certificate shall be conclusive and binding on such Holder and upon all
future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
D-6
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Securities Administrator upon surrender of this Certificate for registration
of transfer at the office designated by the Securities Administrator for
such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by the holder hereof or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest in the Trust Fund will be issued to
the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement
and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the
Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient
to
cover any tax or other governmental charge payable in connection
therewith.
The
Trustee, the Depositor and the Securities Administrator and any agent of
the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Trustee, the Depositor, the Securities Administrator, nor
any
such agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans of any Group is less than or equal to 10% of the Cut-off
Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust
Fund
all remaining Mortgage Loans of such Group and all property acquired in
respect
of the Mortgage Loans of such Group at a purchase price determined and
in the
manner as provided in the Agreement. The obligations and responsibilities
created by this Agreement will terminate as provided in Section 11.02 of
the
Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
D-7
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee
on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator to issue a new Certificate
of a like
denomination and Class, to the above named assignee and deliver such
Certificate
to the following address: .
Dated:
Signature
by or on behalf of assignor
D-8
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
to ,
__________________
______________________________________________________________________________,
for
the
account of ,
___________________________________________________________________________
account
number ,
or, if
mailed by check, to ,
_______________________________________________
Applicable
statements should be mailed to ,
_________________________________________________________
__________________________________________________________________________________.
This
information is provided by _____________________,
the
assignee named above, or ,
as
its
agent.
D-9
EXHIBIT
E
FORM
OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Trustee]
_____________________
_____________________
|
Re:
|
Master
Servicing and Trust Agreement, dated as of April 1, 2007 (the
“Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity,
the
“Trustee”)
and as a custodian, The Bank of New York Trust Company, National
Association and U.S. Bank National Association, each as a custodian,
and
Xxxxx Fargo Bank, National Association, as master servicer (in
such
capacity, the “Master
Servicer”),
securities administrator (in such capacity, the “Securities
Administrator”)
and as a custodian.
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Master Servicing and
Trust
Agreement (the “Trust
Agreement”),
the
undersigned, as Custodian, for each Mortgage Loan listed in the Mortgage
Loan
Schedule for which the undersigned is specified as the Custodian (other
than any
Mortgage Loan listed in the attached exception report), it has
received:
(i)the
original Mortgage Note, endorsed as provided in the following form: “Pay to the
order of ________, without recourse”; and
(ii)except
with respect to a MERS Loan, an executed Assignment of Mortgage (which
may be
included in a blanket assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Custodian has made no independent examination of any documents contained
in each
Mortgage File beyond the review specifically required in the Trust Agreement.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or
the
perfection or priority of any Mortgage. Notwithstanding anything herein
to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right,
title and
interest of the party so endorsing, as noteholder or assignee thereof,
in and to
that Mortgage Note or (ii) any assignment is in recordable form or sufficient
to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
E-1
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement.
[DEUTSCHE
BANK NATIONAL TRUST COMPANY][THE
BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION][U.S. BANK NATIONAL
ASSOCIATION][XXXXX FARGO BANK, NATIONAL ASSOCIATION], not in its individual
capacity, but solely as Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
E-2
EXHIBIT
F
FORM
OF DOCUMENT CERTIFICATION
AND
EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Trustee]
_____________________
_____________________
|
Re:
|
Master
Servicing and Trust Agreement, dated as of October 1, 2006 (the
“Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity,
the
“Trustee”),
The Bank of New York Trust Company, National Association, Deutsche
Bank
National Trust Company and U.S. Bank National Association, each
as a
custodian, and Xxxxx Fargo Bank, National Association, as master
servicer
(in such capacity, the “Master
Servicer”),
securities administrator (in such capacity, the “Securities
Administrator”)
and as a custodian
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Master Servicing and
Trust
Agreement (the “Trust
Agreement”),
the
undersigned, as Custodian, hereby certifies, subject to any exceptions
listed on
the exception report attached hereto, that as to each Mortgage Loan listed
in
the Mortgage Loan Schedule for which the undersigned is specified as the
Custodian (other than any Mortgage Loan paid in full or listed on the attached
exception report) it has received:
1.the
original Mortgage Note, endorsed without recourse in blank by the last
endorsee,
including all intervening endorsements showing a complete chain of endorsement
from the originator to the last endorsee;
2.the
original Assignment of Mortgage in blank (or, in the case of the Goldman
Conduit
Mortgage Loans, in form and substance acceptable for recording or if the
Mortgage is to be recorded, assigned to the Trustee or in blank), unless
the
Mortgage Loan is a MERS Loan;
3.personal
endorsement and/or guaranty agreements executed in connection with all
non
individual Mortgage Loans (corporations, partnerships, trusts, estates,
etc. (if
provided);
F-1
4.the
related original Mortgage and evidence of its recording or a certified
copy of
the Mortgage with evidence of recording thereof;
5.originals
of any intervening Mortgage assignment or certified copies in either case
necessary to show a complete chain of title from the original mortgagee
to the
seller and evidencing recording; provided,
that,
except in the case of the Goldman Conduit Mortgage Loans, the assignment
may be
in the form of a blanket assignment or assignments, a copy of which with
evidence of recording shall be acceptable;
6.if
provided, originals of all assumption, modification, consolidation or extension
agreements or certified copies thereof, in either case with evidence of
recording if required to maintain the lien of the mortgage or if otherwise
required, or, if recordation is not required, an original or copy of the
agreement; provided,
that,
in the case of the Goldman Conduit Mortgage Loans, an original with evidence
of
recording thereon is always required;
7.except
with respect to the Countrywide Mortgage Loans, (if applicable to the files
held
by the Custodian) an original or copy of a title insurance policy or evidence
of
title;
0.xx
the
extent applicable, an original power of attorney; except in the case of
the
Goldman Conduit Mortgage Loans, (if applicable to the files held by the
Custodian) an original power of attorney or, in limited circumstances as
set
forth in the applicable Servicing Agreement, a copy of the power of attorney;
and
9.except
with respect to the Countrywide Mortgage Loans, (if applicable to the files
held
by the Custodian) a security agreement, chattel mortgage or equivalent
document
executed in connection with the Mortgage, if any.
Based
on
its review and examination and only as to the foregoing documents, (a)
such
documents appear regular on their face and related to such Mortgage Loan,
and
(b) the information set forth in items 2, 8, [34 and 35] of the Mortgage
Loan
Schedule accurately reflects information set forth in the Custodial
File.
The
Custodian has made no independent examination of any documents contained
in each
Mortgage File beyond the review of the Custodial File specifically required
in
the Trust Agreement. The Custodian makes no representations as to: (i)
the
validity, legality, sufficiency, enforceability or genuineness of any of
the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or
the
perfection or priority of any Mortgage. Notwithstanding anything herein
to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right,
title and
interest of the party so endorsing, as noteholder or assignee thereof,
in and to
that Mortgage Note or (ii) any assignment is in recordable form or sufficient
to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement.
F-2
[DEUTSCHE
BANK NATIONAL TRUST
COMPANY]
[THE BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION][U.S. BANK NATIONAL
ASSOCIATION][XXXXX FARGO BANK, NATIONAL ASSOCIATION], not in its individual
capacity, but solely as Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
F-3
EXHIBIT
G
FORM
OF RESIDUAL TRANSFER AFFIDAVIT
GSAA
Home Equity Trust 2007-5,
Asset-Backed
Certificates, Series 2007-5
| STATE OF | ) | |
| ) | ss.: | |
| COUNTY OF | ) |
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of ___________________, the proposed Transferee
of an
Ownership Interest in a Class [1R][2R][1RC][2RC][1RX][2RX] Certificate
(the
“Certificate”)
issued
pursuant to the Master Servicing and Trust Agreement (the “Agreement”),
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”)
and as
a custodian, Xxxxx Fargo Bank, National Association, as Master Servicer
(in such
capacity, the “Master
Servicer”),
Securities Administrator (in such capacity, the “Securities
Administrator”)
and as
a custodian, The Bank of New York Trust Company, National Association,
as a
custodian and U.S. Bank National Association, as a custodian. Capitalized
terms
used, but not defined herein, shall have the meanings ascribed to such
terms in
the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee for the benefit of the Depositor,
the
Securities Administrator and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no
knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is
through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise
liable
for the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such subsequent Transferee
is a Permitted Transferee and, at the time of Transfer, such Person does
not
have actual knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass through entity an affidavit that such record
holder
is a Permitted Transferee and the pass through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass through entities as a nominee for another
Person.)
G-1
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory
sales.
The Transferee expressly agrees to be bound by and to abide by the provisions
of
Section 5.02(c) of the Agreement and the restrictions noted on the face
of the
Certificate. The Transferee understands and agrees that any breach of any
of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom
the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is
acting as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person
that
the Transferee knows is not a Permitted Transferee. In connection with
any such
Transfer by the Transferee, the Transferee agrees to deliver to the Securities
Administrator a certificate substantially in the form set forth as Exhibit
H
to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to
which the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends
to pay
its debts as they come due in the future, and understands that the taxes
payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is __________.
9. The
Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual
interest
will remain liable for any taxes due with respect to the income on such
residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable
to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
o
The present value of
the anticipated tax liabilities associated with holding the Certificate,
as
applicable, does not exceed the sum of:
G-2
(i) the
present value of any consideration given to the Transferee to acquire such
Certificate;
(ii) the
present value of the expected future distributions on such Certificate;
and
(iii) the
present value of the anticipated tax savings associated with holding such
Certificate as the related REMIC generates losses.
For
purposes of this calculation, (i) the Transferee is assumed to pay tax
at the
highest rate currently specified in Section 11(b) of the Code (but the
tax rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject
to the
alternative minimum tax under Section 55 of the Code in the preceding two
years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using
a
discount rate equal to the short-term Federal rate prescribed by Section
1274(d)
of the Code for the month of the transfer and the compounding period used
by the
Transferee.
ཥ
The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
(i) the
Transferee is an “eligible corporation,” as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), as to which income from the Certificate will
only be
taxed in the United States;
(ii) at
the
time of the transfer, and at the close of the Transferee’s two fiscal years
preceding the year of the transfer, the Transferee had gross assets for
financial reporting purposes (excluding any obligation of a person related
to
the Transferee within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess
of $10
million;
(iii) the
Transferee will transfer the Certificate only to another “eligible corporation,”
as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i),
(ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
(iv) the
Transferee determined the consideration paid to it to acquire the Certificate
based on reasonable market assumptions (including, but not limited to,
borrowing
and investment rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee) that
it has
determined in good faith.
o
None of the
above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of
ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject
to any
federal, state or local law that is substantially similar to Title I of
ERISA or
Section 4975 of the Code, and the Transferee is not acting on behalf of
or
investing plan assets of such a plan.
G-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
____
day of _______, 20__.
_______________________________
Print
Name of Transferee
By:______________________________
Name:
Title:
[Corporate
Seal]
ATTEST:
______________________________
[Assistant]
Secretary
Personally
appeared before me the above-named __________, known or proved to me to
be the
same person who executed the foregoing instrument and to be the ___________
of
the Transferee, and acknowledged that he executed the same as his free
act and
deed and 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__
G-4
EXHIBIT
H
FORM
OF TRANSFEROR CERTIFICATE
__________,
20__
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
New
York,
New York 10004
Attention:
Xxxxx
Fargo Bank, National Association
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
|
Re:
|
GSAA
Home Equity Trust 2007-5, Asset-Backed Certificates
Series
2007-5, Class [___]
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”),
and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates
to, or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that
would be deemed, or taken any other action which would result in, a violation
of
Section 5 of the Act and (c) to the extent we are disposing of a Residual
Certificate, (A) we have no knowledge the Transferee is not a Permitted
Transferee and (B) after conducting a reasonable investigation of the financial
condition of the Transferee, we have no knowledge and no reason to believe
that
the Transferee will not pay all taxes with respect to the Residual Certificates
as they become due and (C) we have no reason to believe that the statements
made
in paragraphs 7, 10 and 11 of the Transferee’s Residual Transfer Affidavit are
false.
Very
truly yours,
Print
Name of Transferor
By:______________________________________
Authorized
Officer
H-1
EXHIBIT
I
FORM
OF RULE 144A LETTER
____________,
20__
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
New
York,
New York 10004
Attention:
Xxxxx
Fargo Bank, National Association
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
|
Re:
|
GSAA
Home Equity Trust 2007-5, Asset-Backed Certificates, Series
2007-5,
Class [__]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”),
or
any state securities laws and are being transferred to us in a transaction
that
is exempt from the registration requirements of the Act and any such laws,
(b)
we have such knowledge and experience in financial and business matters
that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates
and all
matters relating thereto or any additional information deemed necessary
to our
decision to purchase the Certificates, (d) either we are purchasing a Class
1AV1, Class 2A1A, Class 2A1B, Class 1AF2A, Class 1AF2B, Class 2A2A, Class
2A2B,
Class 1AF3A, Class 1AF3B, Class 2A3A, Class 2A3B, Class 1AF4A, Class 1AF4B,
Class 1AF5A, Class 1AF5B, Class 1AF6, Class 1AF7A, Class 1AF7B, Class 1M1,
Class
2M1, Class 1M2, Class 2M2, Class 1M3, Class 2M3, Class 1M4, Class 2M4,
Class
1M5, Class 2M5, Class 1M6, Class 2M6, Class 1B1, Class 2B1, Class 1B2,
Class
2B2, Class 1B3 or a Class 2B3 Certificate, or we are not an employee benefit
plan that is subject to Title I of the Employee Retirement Income Security
Act
of 1974, as amended (“ERISA”),
or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code
of 1986, as amended (the “Code”),
or a
plan subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA or the Code, nor are we acting on behalf
of any
such plan or arrangement or using the assets of any such plan or arrangement
to
effect such acquisition, or, with respect to a Class 1X, Class 2X, Class
1P or
Class 2P Certificate that has been the subject of an ERISA-Qualifying
Underwriting, the purchaser is an insurance company that is purchasing
this
certificate with funds contained in an “insurance company general account” (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 (“PTCE
95-60”))
and
the purchase and holding of such Certificates satisfy the requirements
for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not,
nor
has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or accept a transfer,
pledge
or other disposition of the Certificates, any interest in the Certificates
or
any other similar security from, or otherwise approached or negotiated
with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person
to act,
in such manner with respect to the Certificates and (f) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us
is being
made in reliance on Rule 144A. We are acquiring the Certificates for our
own
account or for resale pursuant to Rule 144A and further, understand that
such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases
for its
own account or for the account of a qualified institutional buyer to whom
notice
is given that the resale, pledge or transfer is being made in reliance
on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
I-1
ANNEX
1
TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933,
as
amended (“Rule
144A”),
because (i) the Buyer owned and/or invested on a discretionary basis
$___________1
in
securities (except for the excluded securities referred to below) as of
the end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in
the
category marked below.
____ Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association
or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal
Revenue
Code of 1986, as amended.
____ Bank.
The
Buyer (a) is a national bank or banking institution organized under the
laws of
any State, territory or the District of Columbia, the business of which
is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
____ Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached
hereto.
____ Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
____ Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in securities.
I-2
____ State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the
Employee
Retirement Income Security Act of 1974.
____ Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors
Act of
1940.
____ Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
____ Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities
that
are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or
invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount,
the
Buyer may have included securities owned by subsidiaries of the Buyer,
but only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each
of the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a bank or savings and
loan
is provided above, the Buyer agrees that it will furnish to such parties
updated
annual financial statements promptly after they become available.
I-3
_____________________________
Print
Name of Transferee
By:
Name:
Title:
Date:
I-4
ANNEX
2
TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule
144A”),
because Buyer is part of a Family of Investment Companies (as defined below),
is
such an officer of the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended
and (ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or
the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their
market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies,
the securities may be valued at market.
____ The
Buyer
owned $___________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$__________ in securities (other than the excluded securities referred
to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii)
bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
I-5
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the
Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more
sales to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will
only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until
such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of
such
purchase.
_________________________________
Print
Name of Transferee
By:_______________________________
Name:
Title:
IF
AN
ADVISER:
__________________________________
Print
Name of Buyer
Date:______________________________
I-6
EXHIBIT
J-1
FORM
OF
BACK-UP CERTIFICATION
(Master
Servicer)
|
RE:
|
Master
Servicing and Trust Agreement, dated as of April 1, 2007 (the
“Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity,
the
“Trustee”)
and as a custodian, The Bank of New York Trust Company, National
Association and U.S. Bank National Association, each as a custodian,
and
Xxxxx Fargo Bank, National Association, as master servicer (in
such
capacity, the “Master
Servicer”),
securities administrator (in such capacity, the “Securities
Administrator”)
and as a custodian.
|
I,
________________________________, the _______________________ of [NAME
OF
COMPANY] (the “Company”), certify to the Depositor, and its officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the servicer compliance statement of the Company provided
in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and
Section 1122(b) of Regulation AB (the “Attestation Report”), all servicing
reports, Officer’s Certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[_] that were delivered
by the
Company to the Depositor and the Securities Administrator pursuant to the
Agreement (collectively, the “Company Servicing Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the
Depositor;
(4) I
am responsible for reviewing the activities performed by the Company as
a
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation
Report,
the Company has fulfilled its obligations under the Agreement; and
J-1-1
(5) The
Compliance Statement required to be delivered by the Company pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Company and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to the Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
Date: _________________________
|
By:
|
________________________________
|
|
|
Name:
|
|
|
Title:
|
J-1-2
EXHIBIT
J-2
FORM
OF
BACK-UP CERTIFICATION
(Securities
Administrator)
|
RE:
|
Master
Servicing and Trust Agreement, dated as of April 1, 2007 (the
“Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity,
the
“Trustee”)
and as a custodian, The Bank of New York Trust Company, National
Association and U.S. Bank National Association, each as a custodian,
and
Xxxxx Fargo Bank, National Association, as master servicer (in
such
capacity, the “Master
Servicer”),
securities administrator (in such capacity, the “Securities
Administrator”)
and as a custodian.
|
I,
________________________________, the _______________________ of [NAME
OF
COMPANY] (the “Company”), certify to the Depositor, and its officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the report on assessment of the Company’s compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”), provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and Item 1122 of
Regulation AB (the “Servicing Assessment”), the registered public accounting
firm’s attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), all reports on Form 10-D containing statements to certificateholders
filed in respect of the period included in the year covered by the annual
report
of the Trust Fund (collectively, the “Distribution Date Statements”);
(2) Assuming
the accuracy and completeness of the information delivered to the Company
by the
Master Servicer as provided in the Agreement and subject to paragraph (4)
below,
the distribution information determined by the Company and set forth in
the
Distribution Date Statements contained in all Form 10-D’s included in the year
covered by the annual report of such Trust on Form 10-K for the calendar
year
200[ ], is complete and does not contain any material misstatement of fact
as of
the last day of the period covered by such annual report;
(3) Based
solely on the information delivered to the Company by the Master Servicer
as
provided in the Agreement, (i) the distribution information required under
the
Agreement to be contained in the Trust Fund’s Distribution Date Statements and
(ii) the servicing information required to be provided by the Master Servicer
to
the Securities Administrator for inclusion in the Trust Fund’s Distribution Date
Statements, to the extent received by the Securities Administrator from
the
Master Servicer in accordance with the Agreement, is included in such
Distribution Date Statements;
J-2-1
(4) The
Company is not certifying as to the accuracy, completeness or correctness
of the
information which it received from the Master Servicer and did not independently
verify or confirm the accuracy, completeness or correctness of the information
provided by the Master Servicer;
(5) I
am responsible for reviewing the activities performed by the Company as
a person
“performing a servicing function” under the Agreement, and based on my knowledge
and the compliance review conducted in preparing the Servicing Assessment
and
except as disclosed in the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement; and
(6) The
Servicing Assessment and Attestation Report required to be provided by
the
Company pursuant to the Agreement, have been provided to the Depositor.
Any
material instances of noncompliance described in such reports have been
disclosed to the Depositor. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Date: ________________________________
By: ________________________________
Name:
Title:
J-2-2
EXHIBIT
K
FORM
OF
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
STATEMENT
The
assessment of compliance to be delivered by the [Master Servicer] [Securities
Administrator] [Custodians] shall address, at a minimum, the criteria identified
as below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodians
|
|
|
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.
|
|||
|
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.
|
|||
|
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
|
K-1
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodians
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
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
|
K-2
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodians
|
|
|
Reference
|
Criteria
|
|
||
|
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
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements.
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
K-3
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodians
|
|
|
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).
|
K-4
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodians
|
|
|
Reference
|
Criteria
|
|
||
|
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.
|
|||
|
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.
|
K-5
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodians
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|||
|
|
|
K-6
EXHIBIT
L-1
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
| To: |
U.S. Bank National Assoc.
0000 Xxxxxx Xxxxx 000
XX-XX-XXXX
Xx. Xxxx, XX 00000
|
Attention: |
Document Custody Services
Receiving Unit
FAX:
(000) 000-0000 or 000-0000
|
RE:
Custodial Agreement between U.S. Bank National Association, a custodian,
and
___________________ as the company stated in the “agreement”.
In
connection with and pursuant to Section____________, of the agreement,
we
request the release and acknowledge of the custodial file for the mortgage
loan
described below, for the reason indicated:
FROM:
Servicer:________________________________________________________,
City/State______________
SERVICER
LOAN #: ___________________________,
U.S.
BANK#_____________________________________,
Deal
Name: ____________________,
Xxxxxxxxx’s
Name: _______________________________________________ Original
loan amount: ________
Property
Address: ________________________________________________ Payment amount:
____________
City/State/Zip:
__________________________________________________ Interest rate:
________________
REASON
FOR REQUESTING DOCUMENTS (check one)
________1.
Loan paid in full
________2.
Loan in foreclosure
________3.
Loan being substituted
________4.
Loan being liquidated by company
________5.
Other (please explain)
_________________________________________________________
L-1-1
If
box 1
or 4 above is checked, and if all or part of the Custodial File was previously
released to us, then please provide a copy of the previous release request
(RR)
to us as well as any additional documents in your possession relating to
the
above specified mortgage loan.
If
box 2
or 5 above is checked, then upon our return to you as custodian, all of
the
documents for the above specified mortgage loan, please acknowledge your
receipt
by signing in the space indicated below, and returning this form to
us.
COMPANY
NAME:____________________________________________PHONE#__________________________________
AUTHORIZED
SIGNER:
_________________________________________________________________________
NAME(TYPED):_______________________________________________DATE:____________________________
PHONE
#:_____________________________________________________
DATE:__________________________
PLEASE
MAIL DOCUMENTS BACK TO:
L-1-2
EXHIBIT
L-2
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Place,
Santa
Ana, California 92705
Attention:
Mortgage Custody - GS0705
RE:
Master
Servicing and Trust Agreement, dated as of April 1, 2007 (the “Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”), Deutsche
Bank National Trust Company, as trustee (in such capacity, the “Trustee”)
and as
a custodian, The Bank of New York Trust Company, National Association and
U.S.
Bank National Association, each as a custodian, and Xxxxx Fargo Bank, National
Association, as master servicer (in such capacity, the “Master
Servicer”),
securities administrator (in such capacity, the “Securities
Administrator”)
and as
a custodian.
In
connection with and pursuant to Section____________, of the agreement,
we
request the release and acknowledge of the custodial file for the mortgage
loan
described below, for the reason indicated below. Further, any payments
received
by the Servicer listed below in connection with this request for release
have
been deposited into the Distribution Account for the benefit of the
Trust.
FROM:
Servicer:________________________________________________________,
City/State______________
SERVICER
LOAN #: ___________________________,
DEUTSCHE
BANK NATIONAL TRUST COMPANY #________________________________,
Deal
Name: ____________________,
Xxxxxxxxx’s
Name: _______________________________________________ Original
loan amount: ________
Property
Address: ________________________________________________ Payment amount:
____________
City/State/Zip:
__________________________________________________ Interest rate:
________________
REASON
FOR REQUESTING DOCUMENTS (check one)
________1.
Loan paid in full
________2.
Loan in foreclosure
________3.
Loan being substituted
L-2-1
________4.
Loan being liquidated by company
________5.
Other (please explain)
_________________________________________________________
If
box 1
or 4 above is checked, and if all or part of the Custodial File was previously
released to us, then please provide a copy of the previous release request
(RR)
to us as well as any additional documents in your possession relating to
the
above specified mortgage loan.
If
box 2
or 5 above is checked, then upon our return to you as custodian, all of
the
documents for the above specified mortgage loan, please acknowledge your
receipt
by signing in the space indicated below, and returning this form to
us.
COMPANY
NAME:____________________________________________PHONE#__________________________________
AUTHORIZED
SIGNER:
_________________________________________________________________________
NAME(TYPED):_______________________________________________DATE:____________________________
PHONE
#:_____________________________________________________
DATE:__________________________
PLEASE
MAIL DOCUMENTS BACK TO:
L-2-2
EXHIBIT
L-3
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
To:
The
Bank
of New York Trust Company, National Association
0000
Xxxxxxxxxx Xxxx., Xxxxx 000,
Irving,
Texas 75062
RE:
Master
Servicing and Trust Agreement, dated as of April 1, 2007 (the “Agreement”),
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity, the
“Trustee”)
and as
a custodian, The Bank of New York Trust Company, National Association and
U.S.
Bank National Association, each as a custodian, and Xxxxx Fargo Bank, National
Association, as master servicer (in such capacity, the “Master
Servicer”),
securities administrator (in such capacity, the “Securities
Administrator”)
and as
a custodian.
In
connection with and pursuant to Section____________, of the agreement,
we
request the release and acknowledge of the custodial file for the mortgage
loan
described below, for the reason indicated below:
FROM:
Servicer:________________________________________________________,
City/State______________
SERVICER
LOAN #: ___________________________,
THE
BANK
OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION
#_____________________________________,
Deal
Name: ____________________,
Xxxxxxxxx’s
Name: _______________________________________________ Original
loan amount: ________
Property
Address: ________________________________________________ Payment amount:
____________
City/State/Zip:
__________________________________________________ Interest rate:
________________
REASON
FOR REQUESTING DOCUMENTS (check one)
________1.
Loan paid in full
________2.
Loan in foreclosure
________3.
Loan being substituted
________4.
Loan being liquidated by company
L-3-1
________5.
Other (please explain)
_________________________________________________________
If
box 1
or 4 above is checked, and if all or part of the Custodial File was previously
released to us, then please provide a copy of the previous release request
(RR)
to us as well as any additional documents in your possession relating to
the
above specified mortgage loan.
If
box 2
or 5 above is checked, then upon our return to you as custodian, all of
the
documents for the above specified mortgage loan, please acknowledge your
receipt
by signing in the space indicated below, and returning this form to
us.
COMPANY
NAME:____________________________________________PHONE#__________________________________
AUTHORIZED
SIGNER:
_________________________________________________________________________
NAME(TYPED):_______________________________________________DATE:____________________________
PHONE
#:_____________________________________________________
DATE:__________________________
PLEASE
MAIL DOCUMENTS BACK TO:
L-3-2
EXHIBIT
L-4
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
To:
Xxxxx
Fargo Bank, National Association
0000
00xx
Xxxxxx XX, Xxxxxxxxxxx
Minnesota
55414
Attention:
GSAA 2007-5
RE:
Master
Servicing and Trust Agreement, dated as of April 1, 2007 (the “Agreement”),
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity, the
“Trustee”)
and as
a custodian, The Bank of New York Trust Company, National Association and
U.S.
Bank National Association, each as a custodian, and Xxxxx Fargo Bank, National
Association, as master servicer (in such capacity, the “Master
Servicer”),
securities administrator (in such capacity, the “Securities
Administrator”)
and as
a custodian.
In
connection with and pursuant to Section____________, of the agreement,
we
request the release and acknowledge of the custodial file for the mortgage
loan
described below, for the reason indicated below:
FROM:
Servicer:________________________________________________________,
City/State______________
SERVICER
LOAN #: ___________________________,
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
#_____________________________________,
Deal
Name: ____________________,
Xxxxxxxxx’s
Name: _______________________________________________ Original
loan amount: ________
Property
Address: ________________________________________________ Payment amount:
____________
City/State/Zip:
__________________________________________________ Interest rate:
________________
REASON
FOR REQUESTING DOCUMENTS (check one)
________1.
Loan paid in full
________2.
Loan in foreclosure
L-4-1
________3.
Loan being substituted
________4.
Loan being liquidated by company
________5.
Other (please explain)
_________________________________________________________
If
box 1
or 4 above is checked, and if all or part of the Custodial File was previously
released to us, then please provide a copy of the previous release request
(RR)
to us as well as any additional documents in your possession relating to
the
above specified mortgage loan.
If
box 2
or 5 above is checked, then upon our return to you as custodian, all of
the
documents for the above specified mortgage loan, please acknowledge your
receipt
by signing in the space indicated below, and returning this form to
us.
COMPANY
NAME:____________________________________________PHONE#__________________________________
AUTHORIZED
SIGNER:
_________________________________________________________________________
NAME(TYPED):_______________________________________________DATE:____________________________
PHONE
#:_____________________________________________________
DATE:__________________________
PLEASE
MAIL DOCUMENTS BACK TO:
L-4-2
EXHIBIT
M
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
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
|
The
party to this Agreement 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.
|
The
party to this Agreement requesting 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:
|
|
|
▪
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
|
M-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
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.
|
Master
Servicer and 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
|
|
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”.
|
(i)
Securities Administrator and (ii) Depositor with respect to any
information relating to the 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/
Servicer
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
M-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Depositor/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
and Securities Administrator
|
|
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 (excluding Custodian and 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
|
M-3
EXHIBIT
N
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer,
Master Servicer and 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.
|
(i)
Depositor (with respect to the Closing Date) and (ii) Master
Servicer
|
N-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
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
|
N-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
▪
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.
|
|
|
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 disclosure items on Form
8-K
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
N-3
EXHIBIT
O
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
|
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
responsible party for Disclosure Item on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
(i)
As to agreements, Securities Administrator/Depositor and (ii)
as to
financial statements, Reporting Parties (as to themselves) (excluding
Custodian or Trustee)
|
|
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
|
O-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders,
including any
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
|
|
▪
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
|
O-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
|
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)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor
|
|
▪
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
|
Depositor
|
|
▪
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
|
O-3
EXHIBIT
P
Form
of
Master Loan Purchase Agreement, between various sellers and Xxxxxxx Xxxxx
Mortgage Company
[See
Exhibit 99.1 to Form 8-K/A filed with the Commission on February 14, 2006,
Accession No. 0000905148-06-001326]
P-1
EXHIBIT
Q
Flow
Servicing Agreement, dated as of January 1, 2006,
between
Avelo Mortgage, L.L.C. and Xxxxxxx Xxxxx Mortgage Company
[See
Exhibit 99.13 to Form 8-K filed with the Commission on April 14, 2006,
Accession
No. 0000905148-06-00297]
Q-1
EXHIBIT
R
Servicing
Agreement, dated as of July 1, 2004,
between
Countrywide Home Loans Servicing LP and Xxxxxxx Xxxxx Mortgage Company,
as
amended
by Amendment Reg AB
[See
Exhibit 99.3 to Form 8-K filed with the Commission on March 13, 2006, Accession
No. 0000905148-06-002297]
R-1
EXHIBIT
S
Master
Mortgage Loan Purchase Agreement, dated as of
July
1,
2004, between Countrywide Home Loans, Inc.
and
Xxxxxxx Xxxxx Mortgage Company, as amended by Amendment Reg AB
[See
Exhibit 99.3 to Form 8-K filed with the Commission on March 13, 2006, Accession
No. 0000905148-06-002297]
S-1
EXHIBIT
T
Amendment
Reg AB to the Master Mortgage Loan Purchase
and
Servicing Agreement, dated as of January 1, 2006, among
Xxxxxxx
Xxxxx Mortgage Company, Countrywide Home Loans,
Inc.
and
Countrywide Home Loans Servicing LP
[See
Exhibit 99.1 to Form 8-K filed with the Commission on March 14, 2006, Accession
No. 0000905148-06-002297]
T-1
EXHIBIT
U
Amended
and Restated Master Mortgage Loan Purchase Agreement, dated as of
November
1, 2005, between GreenPoint Mortgage Funding, Inc.
and
Xxxxxxx Xxxxx Mortgage Company
[See
Exhibit 99.9 to Form 8-K/A filed with the Commission on February 14, 2006,
Accession No. 0000905148-06-001326]
U-1
EXHIBIT
V
Servicing
Agreement, dated as of November 1, 2005, between
GreenPoint
Mortgage Funding, Inc. and Xxxxxxx Xxxxx Mortgage Company
[See
Exhibit 99.9 to Form 8-K/A filed with the Commission on February 14, 2006,
Accession No. 0000905148-06-001326]
V-1
EXHIBIT
W
Second
Amended and Restated Flow Seller’s Warranties and Servicing
Agreement,
dated
as
of January 1, 2006, between
National
City Mortgage Co. and Xxxxxxx Xxxxx Mortgage Company
[See
Exhibit 99.7 to Form 8-K filed with the Commission on April 14, 2006, Accession
No. 0000905148-06-00297]
W-1
EXHIBIT
X
The
Seller’s Purchase, Warranties and Servicing Agreement, dated as of April 1,
2006, between Xxxxxxx Xxxxx Mortgage Company and Wachovia Mortgage
Corporation
[See
Exhibit 99.1 to Form 8-K filed with the Commission on September 8, 2006,
Accession No. 0000905148-06-005642]
X-1
EXHIBIT
Y
Second
Amended and Restated Master Seller’s Warranties and Servicing Agreement, dated
as of November 1, 2005, between Xxxxxxx Xxxxx Mortgage Company and Xxxxx
Fargo
Bank, National Association
[See
Exhibit 99.1 to Form 8-K filed with the Commission on
May
12,
2006, Accession No. 0000905148-06-003718]
Y-1
EXHIBIT
Y
Form
of
Interest Rate Swap Agreement
[On
File
with the Depositor]
Y-2
