GSAA HOME EQUITY TRUST 2007-7 ASSET-BACKED CERTIFICATES SERIES 2007-7 MASTER SERVICING and TRUST AGREEMENT among GS MORTGAGE SECURITIES CORP., Depositor, U.S. BANK NATIONAL ASSOCIATION, Trustee THE BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION...
Exhibit
99.1
EXECUTION
COPY
ASSET-BACKED
CERTIFICATES
SERIES
2007-7
MASTER
SERVICING
and
TRUST
AGREEMENT
among
GS
MORTGAGE SECURITIES CORP.,
Depositor,
U.S.
BANK
NATIONAL ASSOCIATION,
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
June 1, 2007
TABLE
OF CONTENTS
Page
ARTICLE
I
DEFINITIONS
|
||
Section
1.01
|
Definitions
|
15
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
|
||
Section
2.01
|
Conveyance
of Mortgage Loans
|
49
|
Section
2.02
|
Acceptance
by the Custodians of the Mortgage Loans
|
51
|
Section
2.03
|
Execution
and Delivery of Certificates
|
53
|
Section
2.04
|
REMIC
Matters
|
53
|
Section
2.05
|
Representations
and Warranties of the Depositor
|
54
|
Section
2.06
|
Representations
and Warranties of BNY
|
55
|
Section
2.07
|
Representations
and Warranties of Deutsche Bank
|
56
|
Section
2.08
|
Representations
and Warranties of U.S. Bank
|
56
|
Section
2.09
|
Representations
and Warranties of Xxxxx Fargo
|
56
|
ARTICLE
III
TRUST
ACCOUNTS
|
||
Section
3.01
|
Excess
Reserve Fund Account; Distribution Account
|
58
|
Section
3.02
|
Investment
of Funds in the Distribution Account
|
59
|
ARTICLE
IV
DISTRIBUTIONS
|
||
Section
4.01
|
Priorities
of Distribution
|
61
|
Section
4.02
|
Monthly
Statements to Certificateholders
|
67
|
Section
4.03
|
Allocation
of Applied Realized Loss Amounts
|
70
|
Section
4.04
|
Certain
Matters Relating to the Determination of LIBOR
|
70
|
Section
4.05
|
Supplemental
Interest Trust
|
71
|
Section
4.06
|
Trust’s
Obligations under the Interest Rate Swap Agreements; Replacement
and
Termination of the Interest Rate Swap Agreements.
|
72
|
-i-
TABLE
OF CONTENTS
(Continued)
Page
ARTICLE
V
THE
CERTIFICATES
|
||
Section
5.01
|
The
Certificates
|
73
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates
|
74
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
80
|
Section
5.04
|
Persons
Deemed Owners
|
80
|
Section
5.05
|
Access
to List of Certificateholders’ Names and Addresses
|
80
|
Section
5.06
|
Maintenance
of Office or Agency
|
81
|
ARTICLE
VI
THE
DEPOSITOR
|
||
Section
6.01
|
Liabilities
of the Depositor
|
81
|
Section
6.02
|
Merger
or Consolidation of the Depositor
|
81
|
Section
6.03
|
Limitation
on Liability of the Depositor and Others
|
81
|
Section
6.04
|
Servicing
Compliance Review
|
82
|
Section
6.05
|
Option
to Purchase Defaulted Mortgage Loans
|
82
|
ARTICLE
VII
SERVICER
DEFAULT
|
||
Section
7.01
|
Events
of Default
|
82
|
Section
7.02
|
Master
Servicer to Act; Appointment of Successor
|
83
|
Section
7.03
|
Master
Servicer to Act as Servicer
|
84
|
Section
7.04
|
Notification
to Certificateholders
|
84
|
ARTICLE
VIII
CONCERNING
THE TRUSTEE AND THE CUSTODIANS
|
||
Section
8.01
|
Duties
of the Trustee and the Custodians
|
84
|
Section
8.02
|
[Reserved].
|
85
|
Section
8.03
|
Certain
Matters Affecting the Trustee and the Custodians
|
85
|
Section
8.04
|
Trustee
and Custodians Not Liable for Certificates or Mortgage
Loans
|
87
|
Section
8.05
|
Trustee
May Own Certificates
|
88
|
Section
8.06
|
Trustee’s
Fees and Expenses
|
88
|
Section
8.07
|
Eligibility
Requirements for the Trustee
|
89
|
Section
8.08
|
Resignation
and Removal of the Trustee
|
89
|
Section
8.09
|
Successor
Trustee
|
90
|
-ii-
TABLE
OF CONTENTS
(Continued)
Page
Section
8.10
|
Merger
or Consolidation of the Trustee or the Custodians
|
90
|
Section
8.11
|
Appointment
of Co-Trustee or Separate Trustee
|
91
|
Section
8.12
|
Tax
Matters
|
92
|
Section
8.13
|
[Reserved].
|
96
|
Section
8.14
|
Tax
Classification of the Excess Reserve Fund Account and the Interest
Rate
Swap Agreements
|
96
|
Section
8.15
|
Custodial
Responsibilities
|
97
|
ARTICLE
IX
ADMINISTRATION
OF THE MORTGAGE LOANS BY THE MASTER SERVICER
|
||
Section
9.01
|
Duties
of the Master Servicer; Enforcement of Servicer’s
Obligations
|
98
|
Section
9.02
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance
|
100
|
Section
9.03
|
Representations
and Warranties of the Master Servicer
|
100
|
Section
9.04
|
Master
Servicer Events of Default
|
102
|
Section
9.05
|
Waiver
of Default
|
104
|
Section
9.06
|
Successor
to the Master Servicer
|
104
|
Section
9.07
|
Compensation
of the Master Servicer
|
105
|
Section
9.08
|
Merger
or Consolidation
|
105
|
Section
9.09
|
Resignation
of the Master Servicer
|
106
|
Section
9.10
|
Assignment
or Delegation of Duties by the Master Servicer
|
106
|
Section
9.11
|
Limitation
on Liability of the Master Servicer
|
106
|
ARTICLE
X
CONCERNING
THE SECURITIES ADMINISTRATOR
|
||
Section
10.01
|
Duties
of the Securities Administrator.
|
108
|
Section
10.02
|
Certain
Matters Affecting the Securities Administrator
|
109
|
Section
10.03
|
Securities
Administrator Not Liable for Certificates or Mortgage
Loans
|
111
|
Section
10.04
|
Securities
Administrator May Own Certificates
|
111
|
Section
10.05
|
Securities
Administrator’s Fees and Expenses
|
111
|
Section
10.06
|
Eligibility
Requirements for the Securities Administrator
|
112
|
Section
10.07
|
Resignation
and Removal of the Securities Administrator
|
113
|
Section
10.08
|
Successor
Securities Administrator
|
114
|
Section
10.09
|
Merger
or Consolidation of the Securities Administrator
|
114
|
Section
10.10
|
Assignment
or Delegation of Duties by the Securities Administrator
|
115
|
-iii-
TABLE
OF CONTENTS
(Continued)
Page
ARTICLE
XI
TERMINATION
|
||
Section
11.01
|
Termination
upon Liquidation or Purchase of the Mortgage Loans
|
115
|
Section
11.02
|
Final
Distribution on the Certificates
|
116
|
Section
11.03
|
Additional
Termination Requirements
|
118
|
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
||
Section
12.01
|
Amendment
|
118
|
Section
12.02
|
Recordation
of Agreement; Counterparts
|
121
|
Section
12.03
|
Governing
Law
|
121
|
Section
12.04
|
Intention
of Parties
|
121
|
Section
12.05
|
Notices
|
121
|
Section
12.06
|
Severability
of Provisions
|
123
|
Section
12.07
|
Limitation
on Rights of Certificateholders
|
123
|
Section
12.08
|
Certificates
Nonassessable and Fully Paid
|
124
|
Section
12.09
|
Waiver
of Jury Trial
|
124
|
Section
12.10
|
Rights
of the Swap Provider
|
124
|
ARTICLE
XIII
ARTICLE
XIII EXCHANGE ACT REPORTING
|
||
Section
13.01
|
Filing
Obligations.
|
125
|
Section
13.02
|
Form
8-K Filings.
|
127
|
Section
13.03
|
Form
10-D Filings.
|
128
|
Section
13.04
|
Form
10-K Filings.
|
129
|
Section
13.05
|
Form
15 Filing.
|
131
|
Section
13.06
|
Xxxxxxxx-Xxxxx
Certification.
|
131
|
Section
13.07
|
Report
on Assessment of Compliance and Attestation.
|
132
|
Section
13.08
|
Use
of Subservicers and Subcontractors.
|
133
|
-iv-
TABLE
OF CONTENTS
(Continued)
SCHEDULES
Schedule
I
|
Mortgage
Loan Schedule
|
EXHIBITS
Exhibit
A
|
Form
of Class A, Class M and Class B
Certificates
|
Exhibit
B
|
Form
of Class P Certificates
|
Exhibit
C
|
Form
of Class R, Class RC and Class RX
Certificates
|
Exhibit
D
|
Form
of Class X Certificate
|
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 (The Bank of New York Trust
Company,
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 (U.S. Bank 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-
TABLE
OF CONTENTS
(Continued)
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
|
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
S
|
Amended
and Restated Servicing Agreement, dated as of November 1, 2005,
between
GreenPoint Mortgage Funding, Inc. and Xxxxxxx Xxxxx Mortgage
Company
|
Exhibit
T
|
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
U
|
Form
of Interest Rate Swap Agreement
(LIBOR)
|
Exhibit
V
|
Form
of Interest Rate Swap Agreement (Federal Funds
Rate)
|
Exhibit
W
|
Form
of Class 2A1 Interest Rate Cap
Agreement
|
Exhibit
X
|
Form
of Class A5 Interest Rate Cap
Agreement
|
-vi-
THIS
MASTER SERVICING AND TRUST AGREEMENT, dated as of June 1, 2007 (this
“Agreement”), is hereby executed by and among GS MORTGAGE SECURITIES
CORP., a Delaware corporation (the “Depositor”), U.S. BANK NATIONAL
ASSOCIATION (“U.S. 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, 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
PRELIMINARY
STATEMENT
The
Securities Administrator on behalf of the Trust shall elect that six segregated
asset pools within the Trust Fund be treated for federal income tax purposes
as
comprising six REMICs (each, a “Trust REMIC” or, in the alternative,
“REMIC 1”, “REMIC 2”, “REMIC 3”, “REMIC 4”, the “Upper-Tier REMIC” and the
“Class X REMIC”, respectively). The Class UT-Swap IO Interest, the
Class X Interest and each Class of Principal Certificates (other than the right
of each Class of Principal Certificates to receive Tax Basis Risk Carry Forward
Amounts), represents ownership of a regular interest in the Upper-Tier REMIC
for
purposes of the REMIC Provisions. The Class R Certificates represent
ownership of the sole class of residual interest in the Upper-Tier REMIC, the
Class RC Certificates represent ownership of the sole class of residual interest
in each of REMIC 1, REMIC 2, REMIC 3 and REMIC 4, and the Class RX Certificates
represent ownership of the sole class of residual interest in the Class X 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 Certificate is the latest date referenced in Section
2.04.
The
Class
X REMIC shall hold as assets the Class X Interest and the Class UT-Swap-IO
Interest as set out below. The Upper-Tier REMIC shall hold as assets
the several classes of uncertificated REMIC 4 Regular Interests, set out
below. REMIC 4 shall hold as assets the several classes of
uncertificated REMIC 3 Regular Interests, set out below. REMIC 3
shall hold as assets the several classes of uncertificated REMIC 2 Regular
Interests, set out below. REMIC 2 shall hold as assets the several
classes of uncertificated REMIC 1 Regular Interests, set out
below. REMIC 1 shall hold as assets the assets described in the
definition of “Trust Fund” herein (other than the Prepayment Premiums, the
Interest Rate Cap Agreements and the Excess Reserve Fund Account).
1
Each
REMIC 1 Regular Interest is hereby designated as a regular interest in REMIC
1. Each REMIC 2 Regular Interest is hereby designated as a regular
interest in REMIC 2. Each REMIC 3 Regular Interest is hereby
designated as a regular interest in REMIC 3. Each REMIC 4 Regular
Interest is hereby designated as a regular interest in REMIC 4. The
Class 4-1A1, Class 4-1A2, Class 4-1A3, Class 4-1AMZ, Class 4-2A1, Class 4-2A2,
Class 4-2AMZ, Class 4-M1, Class 4-M2, Class 4-M3, Class 4-M4, Class 4-M5, Class
4-M6, Class 4-B1 and Class 4-B2 Interests are hereby designated the Accretion
Directed Classes. The Class P Certificates represent beneficial
ownership of the Prepayment Premiums, each Class of Certificates (excluding
the
Class P, Class X and each class of Residual Certificates) represents beneficial
ownership of a regular interest in the Upper-Tier REMIC and the right to receive
Tax Basis Risk Carry Forward Amounts and the Class X Certificates represent
beneficial ownership of a regular interest in the Class X REMIC and the Excess
Reserve Fund Account, which portions of the Trust Fund shall be treated as
a
grantor trust.
REMIC
1
REMIC
1 will issue: (i) a regular
interest corresponding to each Group I Mortgage Loan that is allocated scheduled
principal, prepayments of principal and Realized Losses in an amount equal
to
that on its corresponding Mortgage Loan and that bears interest at a rate equal
to the rate in respect of its corresponding Mortgage Loan, and (ii) two regular
interests for each Group II Mortgage Loan (the “REMIC 1 X Interests” and “REMIC
1 Y Interests”, respectively), each of which is allocated scheduled principal,
prepayments of principal and Realized Losses in an amount equal to 50% of such
amounts on its corresponding Mortgage Loan. Each REMIC 1X and REMIC
1Y Interest will bear at a rate equal to the rate in respect of its
corresponding Mortgage Loan.
In
addition to issuing the REMIC 1
Regular Interests, REMIC 1 shall issue the Class R-1 Interest which shall be
the
sole class of residual interests in REMIC 1. The Class RC
Certificates will represent ownership of the Class R-1 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 R-1
Interest shall be deemed paid from REMIC 1.
REMIC
2
The
REMIC
2 Interests will have the Initial Principal Balances and Pass-Through Rates
as
set forth in the following table:
REMIC
2
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
Class
2-A
|
(1)
|
(2)
|
Class
2-B
|
(1)
|
(2)
|
Class
2-Support
|
(1),
(3)
|
(2)
|
Class
2-Group I
|
(4)
|
(4)
|
Class
2-Group II
|
(5)
|
(5)
|
|
__________________
|
2
(1)
|
There
will be one “A” REMIC 2 Interest and one “B” REMIC 2 Interest for each
Distribution Date upon which the notional balance of the LIBOR Swap
Agreement is exceeded by the notional principal balance of the LIBOR
Swap
Agreement for the immediately preceding Distribution Date, each of
which
will have a numeric designation equal to the ordinal number of such
immediately preceding Distribution Date (e.g. 2-1A, 2-2A, 2-3A, … 2-1B,
2-2B, 2-3B, …). Each “A” REMIC 2 Interest and each “B” REMIC 2
Interest will have an initial principal balance equal to the product
of: (i) 50% and (ii) the excess of (a) the notional balance of
the LIBOR Swap Agreement for the Distribution Date whose ordinal
number
(e.g. first, second, third,…) equals the cardinal number (e.g. 1-, 2-,
3-,…) of the designated Class, over (b) the notional balance of such
Swap
Agreement for the subsequent Distribution Date. Scheduled
principal, prepayments and Realized Losses will be allocated first,
to the
Class 2-Support Interests, second among the other Classes designated
“2-”,
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, and third to the Class 2-Group I and Class 2-Group
II
Interests as described in Notes (4) and (5)
below.
|
(2)
|
On
each Distribution Date, the interest rate will be the weighted average
of
the Adjusted Net Mortgage Interest Rates then in effect at the beginning
of the related Due Period (“Pool
WAC”).
|
(3)
|
On
each Distribution Date, following the allocation of Principal Xxxxxxx
and
Realized Losses, the principal balance in respect of the Class 2-Support
Interests will equal the excess, if any, of the principal balance
of the
Mortgage Loans over the principal balance in respect of the remaining
REMIC 2 Interests designated as
“2-”.
|
(4)
|
On
each Distribution Date, following the allocation of Principal Amounts
and
Realized Losses, the principal balance in respect of the Class LT-Group
I
Interest will be 0.001% of the sum of: (a) aggregated principal balance
of
the REMIC 1 Interests that correspond to the Group I Mortgage Loans,
plus
(b) the aggregate principal balance of the REMIC 1 X
Interests. On each Distribution Date, the interest rate will be
the weighted average of the pass through rates in respect of the
REMIC 1
Interests that correspond to the Group I Mortgage Loans and the REMIC
1 X
Interests (“Collateral Group I Loan
WAC”).
|
(5)
|
On
each Distribution Date, following the allocation of Principal Xxxxxxx
and
Realized Losses, the principal balance in respect of the Class LT-Group
II
Interest will be 0.001% of the aggregate principal balance of the
REMIC 1
Y Interests. On each Distribution Date, the interest rate will
be the weighted average of the pass through rates in respect of the
REMIC
1 Y Interests (“Collateral Group II Loan
WAC”).
|
In
addition to issuing the REMIC 2 Regular Interests, REMIC 2 shall issue the
Class
R-2 Interest which shall be the sole class of residual interests in REMIC
2. The Class RC Certificates will represent ownership of the Class
R-2 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 R-2 Interest shall be deemed paid from REMIC
2.
3
REMIC
3
The
REMIC
3 Interests will have the Initial Principal Balances and Pass-Through Rates
as
set forth in the following table:
REMIC
3
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
Class
3-A
|
(1)
|
(2)
|
Class
3-B
|
(1)
|
(2)
|
Class
3-Support
|
(1),
(3)
|
(2)
|
Class
3-Group I
|
(4)
|
(4)
|
Class
3-Group II
|
(5)
|
(5)
|
Class
3-Swap IO-LIBOR
|
(6)
|
(6)
|
|
__________________
|
(1)
|
There
will be one “A” REMIC 3 Interest and one “B” REMIC 3 Interest for each
Distribution Date upon which the notional balance of the Federal
Funds
Swap Agreement is exceeded by the notional principal balance of the
Federal Funds Swap Agreement for the immediately preceding Distribution
Date, each of which will have a numeric designation equal to the
ordinal
number of such immediately preceding Distribution Date (e.g. 3-1A,
3-2A,
3-3A, … 3-1B, 3-2B, 3-3B, …). Each such Class, other than the
Class 3-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 Federal Funds Swap Agreement for the Distribution
Date
whose ordinal number (e.g. first, second, third,…) equals the cardinal
number (e.g. 1-, 2-, 3-,…) of the designated Class, over (b) the notional
balance of such Swap Agreement for the subsequent Distribution
Date. Scheduled principal, prepayments and Realized Losses will
be allocated first, to the Class 3-Support Interests, second among
the
other Classes designated “3-”, 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, and third to the Class 3-Group
I
and Class 3-Group II Interests as described in Notes (4) and (5)
below.
|
(2)
|
The
interest rate with respect to any Distribution Date for these interests
will equal the weighted average of the pass through rates of the
REMIC 2
Interests treating: (i) each “A” class (e.g. 2-1A, 2-2A…) as
subject to a cap and a floor equal to the product of: (a) two (2)
and (b)
the excess, if any, of the Pool WAC over the Fixed Rate (as defined
in the
LIBOR Swap Agreement) and (ii) each “B” class (e.g. 2-1B, 2-2B, 2-3B …) as
subject to a cap and a floor rate equal to the product of: (a) two
(2)
and, (b) the least of: (I) one month LIBOR, (II) Pool WAC and (III)
the
Fixed Rate (as defined in the LIBOR Swap Agreement) 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
“REMIC 3 Cap”).
|
(3)
|
On
each Distribution Date, following the allocation of Principal Xxxxxxx
and
Realized Losses, the principal balance in respect of the Class 3-Support
Interests will equal the excess, if any, of the principal balance
of the
Mortgage Loans over the principal balance in respect of the remaining
REMIC 3 Interests designated as
“3-”.
|
4
(4)
|
On
each Distribution Date, following the allocation of Principal Xxxxxxx
and
Realized Losses, the principal balance in respect of the Class 3-Group
I
Interest will be the principal balance in respect of the Class 2-Group
I
Interest. The interest rate with respect to any Distribution
Date for the Class 3-Group I Interest will equal the weighted average
of
the pass through rates of the REMIC 2 Interests treating:
(i) each “A” class (e.g. 2-1A, 2-2A, 2-3A …) as subject to a
cap and a floor equal to the product: (a) two (2) and (b) the excess,
if
any, of the Collateral Group I Loan WAC over the Fixed Rate (as defined
in
the LIBOR Swap Agreement) and (ii) each “B” class (e.g. 2-1B,
2-2B, 2-3B …) as subject to a cap and a floor rate equal to the product:
(a) two (2) and (b) the least of: (I) one month LIBOR, (II) Collateral
Group I Loan WAC and (III) the Fixed Rate (as defined in the LIBOR
Swap
Agreement), 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 “REMIC 3 Collateral Group I
Cap”).
|
(5)
|
On
each Distribution Date, following the allocation of Principal Xxxxxxx
and
Realized Losses, the principal balance in respect of the Class 3-Group
II
Interest will be the principal balance in respect of the Class 2-Group
II
Interest. The interest rate with respect to any Distribution
Date for the Class 3-Group II Interest will equal the weighted average
of
the pass through rates of the REMIC 2 Interests treating:
(i) each “A” class (e.g. 2-1A, 2-2A, 2-3A …) as subject to a
cap and a floor equal to the product: (a) two (2) and (b) the excess,
if
any, of the Collateral Group II Loan WAC over the Fixed Rate (as
defined
in the LIBOR Swap Agreement) and (ii) each “B” class (e.g.
2-1B, 2-2B, 2-3B …) as subject to a cap and a floor rate equal to the
product: (a) two (2) and (b) the least of: (I) one month LIBOR, (II)
Collateral Group II Loan WAC and (III) the Fixed Rate (as defined
in the
LIBOR Swap Agreement), 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 “REMIC 3 Collateral Group II
Cap”).
|
(6)
|
For
each Distribution Date, the interest rate will equal the excess of
the
product of: (i) two (2) and (ii) the lesser of: (a) Fixed Rate (as
defined
in the LIBOR Swap Agreement) and (b) Pool WAC over (c) one month
LIBOR on
a notional balance equal to the sum of the principal balances of
each
REMIC 2 “B” Class 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.
|
In
addition to issuing the REMIC 3 Regular Interests, REMIC 3 shall issue the
Class
R-3 Interest which shall be the sole class of residual interests in REMIC
3. The Class RC Certificates will represent ownership of the Class
R-3 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 R-3 Interest shall be deemed paid from REMIC
3.
5
REMIC
4
REMIC
4 Interest
Designation
|
REMIC
4
Interest
Rate
|
Initial
REMIC 4 Principal
Amount
|
Corresponding
Upper-Tier
REMIC
Class
|
Class
4-1A1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
1A1
|
Class
4-1A2
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
1A2
|
Class
4-1A3
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
1A3
|
Class
4-1AMZ
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
1AMZ
|
Class
4-2A1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
2A1
|
Class
4-2A2
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
2A2
|
Class
4-2AMZ
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
2AMZ
|
Class
4-M1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
M1
|
Class
4-M2
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
M2
|
Class
4-M3
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
M3
|
Class
4-M4
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
M4
|
Class
4-M5
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
M5
|
Class
4-M6
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
M6
|
6
Designation
|
REMIC
4
Interest
Rate
|
Initial
REMIC 4 Principal
Amount
|
Corresponding
Upper-Tier
REMIC
Class
|
Class
4-B1
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
B1
|
Class
4-B2
|
(1)
|
½
initial Class Certificate Balance of Corresponding Upper-Tier REMIC
Regular Interest
|
B2
|
Class
4-Accrual
|
(1)
|
½
Pool Stated Principal Balance plus ½ Overcollateralized Amount, less
aggregate initial REMIC 4 Principal Amounts of Class 4-Group I Interests
and Class 4-Group II Interests
|
N/A
|
Class
4-Group I
|
(2)
|
0.001%
aggregated Stated Principal Balance of Group I Mortgage
Loans(4)
|
N/A
|
Class
4-Group II
|
(3)
|
0.001%
aggregated Stated Principal Balance of Group II Mortgage
Loans(4)
|
N/A
|
Class
4-Swap IO-LIBOR
|
(5)
|
(5)
|
N/A
|
Class
4-Swap IO-FF
|
(6)
|
(6)
|
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
REMIC 3
Interests treating: (i) each “A” class (e.g. 3-1A, 3-2A, 3-3A
…) as subject to a cap and a floor equal to the product of: (a) two
(2)
and (b) the excess, if any, of the REMIC 3 Cap over the Fixed Rate
(as
defined in the Federal Funds Swap Agreement) and (ii) each “B” class (e.g.
3-1B, 3-2B…) as subject to a cap and a floor rate equal to the product of:
(a) two (2) and (b) the least of: (I) one month LIBOR, (II) the REMIC
3
Cap and (III) the Fixed Rate (as defined in the Federal Funds Swap
Agreement), 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 WAC
Cap”).
|
(2)
|
The
interest rate with respect to any Distribution Date for these interests
will equal the weighted average of the pass through rates of the
REMIC 3
Interests treating: (i) each “A” class (e.g. 3-1A, 3-2A, 3-3A
…) as subject to a cap and a floor equal to the product of: (a) two
(2)
and (b) the excess, if any, of the REMIC 3 Group I Cap over the
Fixed Rate (as defined in the Federal Funds Swap Agreement) and (ii)
each
“B” class (e.g. 3-1B, 3-2B…) as subject to a cap and a floor rate equal to
the product of: (a) two (2) and (b) the least of: (I) one month LIBOR,
(II) the REMIC 3 Collateral Group I Cap and (III) the Fixed Rate
(as
defined in the Federal Funds Swap Agreement), 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
Collateral Group I Cap”).
|
7
(3)
|
The
interest rate with respect to any Distribution Date for these interests
will equal the weighted average of the pass through rates of the
REMIC 3
Interests treating: (i) each “A” class (e.g. 3-1A, 3-2A, 3-3A
…) as subject to a cap and a floor equal to the product of: (a) two
(2)
and (b) the excess, if any, of the REMIC 3 Collateral Group II Cap
over
the Fixed Rate (as defined in the Federal Funds Swap Agreement) and
(ii)
each “B” class (e.g. 3-1B, 3-2B…) as subject to a cap and a floor rate
equal to the product of: (a) two (2) and (b) the least of: (I) one
month
LIBOR, (II) the REMIC 3 Collateral Group II Cap and (III) the Fixed
Rate
(as defined in the Federal Funds Swap Agreement), 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 Collateral Group II Cap”).
|
(4)
|
For
all Distribution Dates, the REMIC 4 Principal Amount of these REMIC
4
Regular Interests shall be rounded to eight decimal
places.
|
(5)
|
For
each Distribution Date, this Class will accrue all interest accrued
in
respect of the Class 3-Swap IO-LIBOR
Interest.
|
(6)
|
For
each Distribution Date, the interest rate will equal the excess of
the
product of: (i) two (2) and (ii) the lesser of (a) the Fixed Rate
(as
defined in the applicable Federal Funds Swap Agreement) and (b) the
REMIC
3 Cap over (c) the Federal Funds Rate on a notional balance equal
to the
sum of the principal balances of each REMIC 3 “B” Class 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.
|
REMIC
4
shall hold as assets all of the REMIC 4 Regular Interests.
On
each
Distribution Date, 50% of the increase in the Overcollateralized Amount will
be
payable as a reduction of the REMIC 4 Principal Amount of the 4-Accretion
Directed Classes (each such Class will be reduced by an amount equal to 50%
of
any increase in the 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 REMIC 4 Principal Amount of the Class 4-Accrual
Interest. On each Distribution Date, the increase in the REMIC 4
Principal Amount of the Class 4-Accrual Interest may not exceed interest
accruals for such Distribution Date for the Class 4-Accrual
Interest. In the event that: (i) 50% of the increase in
the Overcollateralized Amount exceeds (ii) interest accruals on the Class
4-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 for purposes of
determining the amount of interest accrual on the Class 4-Accrual Interest
payable as principal on the 4-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 Mortgage Loans shall be allocated (i) 50% to the
Class 4-Accrual Interest, the Class 4-Group I Interest and the Class 4-Group
II
Interest (and further allocated among these REMIC 4 Regular Interests in the
manner described below) and (ii) 50% to the 4-Accretion Directed Classes
(principal payments shall be allocated among such 4-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 X Interest that result in
the
reduction in the Overcollateralized Amount shall be allocated to the Class
4-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 REMIC 4 Principal Amount of each of the 4-Accretion Directed Classes
is
equal to 50% of the Class Certificate Balance of its Corresponding Class, and
(ii) the Class 4-Accrual Interest, the Class 4-Group I Interest and the Class
4-Group II Interest (and further allocated among these REMIC 4 Regular Interests
in the manner described below) are equal to 50% of the aggregate
Stated Principal Balance of the Mortgage Loans plus 50% of the
Overcollateralized Amount. As among the Class 4-Accrual Interest, the
Class 4-Group I Interest and the Class 4-Group II Interest, all payments of
scheduled principal and prepayments of principal generated by the Mortgage
Loans, and all Realized Losses, allocable to such REMIC 4 Regular Interests
shall be allocated (i) to the Class 4-Group I Interest and the Class 4-Group
II
Interest, each from the related Group so that their respective REMIC 4 Principal
Amounts (computed to at least eight decimal places) are equal to 0.001% of
the
aggregate Stated Principal Balance of the Mortgage Loans in the related Group
and (ii) the remainder of such Realized Losses to the Class 4-Accrual
Interest.
8
In
addition to issuing the REMIC 4 Regular Interests, REMIC 4 shall issue the
Class
R-4 Interest which shall be the sole class of residual interests in REMIC
4. The Class RC Certificates will represent ownership of the Class
R-4 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 R-4 Interest shall be deemed paid from REMIC
4.
The
Upper-Tier REMIC
The
Upper-Tier REMIC shall issue the following classes of Upper-Tier Regular
Interests, and each such interest, other than the Class UT-R Interest, is hereby
designated as a regular interest in the Upper-Tier REMIC.
Upper-Tier
Class
Designation
|
Upper-Tier
Interest
Rate
and
Corresponding
Class
Pass-Through
Rate
|
Initial
Upper-Tier
Principal
Amount and
Corresponding
Class
Certificate
Balance
|
Corresponding
Class
of
Certificates
|
Class
1A1
|
(1)
|
$161,141,000
|
Class
1A1(16)
|
Class
1A2
|
(2)
|
$63,314,000
|
Class
1A2(16)
|
Class
2A1
|
(3)
|
$110,428,000
|
Class
2A1(16)
|
Class
A4(4)
|
(5)
|
$72,188,000
|
Class
A4(16)
|
Class
A5(4)
|
(6)
|
$45,231,000
|
Class
A5(16)
|
Class
M1
|
(7)
|
$8,998,000
|
Class
M1(16)
|
Class
M2
|
(8)
|
$4,620,000
|
Class
M2(16)
|
Class
M3
|
(9)
|
$3,161,000
|
Class
M3(16)
|
Class
M4
|
(10)
|
$3,162,000
|
Class
M4(16)
|
9
Class
M5
|
(11)
|
$1,945,000
|
Class
M5(16)
|
Class
M6
|
(12)
|
$1,702,000
|
Class
M6(16)
|
Class
B1
|
(13)
|
$2,432,000
|
Class
B1(16)
|
Class
B2
|
(14)
|
$2,918,000
|
Class
B2(16)
|
Class
X
|
(15)
|
(15)
|
Class
X(15)
|
Class
UT-Swap IO
|
(17)
|
(17)
|
Class
X(17)
|
(1)
|
The
Class 1A1 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to the least of (i) one-month LIBOR
plus 0.110% (0.220% after the first distribution date on which the
optional clean-up call is exercisable), (ii) the Tax Collateral Group
I
Cap and (iii) the Tax WAC Cap.
|
(2)
|
The
Class 1A2 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to the least of (i) one-month LIBOR
plus 0.180% (0.360% after the first distribution date on which the
optional clean-up call is exercisable), (ii) the Tax Collateral Group
I
Cap and (iii) the Tax WAC Cap.
|
(3)
|
The
Class 2A1 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to the least of (i) the Federal Funds
Rate plus 0.110% (0.220% after the first distribution date on which
the
optional clean-up call is exercisable), (ii) the Tax Collateral Group
II
Cap and (iii) the Tax WAC Cap.
|
(4)
|
The
Class A4 and Class A5 Interests are comprised of component
classes. The Class A4 Interests are comprised of the 1A3 and
2A2 components and the Class A5 Interests are comprised of the 1AMZ
and
2AMZ components. Each component class constitutes a single
class of certificates and a separate REMIC regular interest for federal
income tax purposes. The components comprising each of the
Class A4 and Class A5 Interests will not be separately transferable
from
such class and are not issued separately. The component
balances are as follows:
|
Certificate
Class
|
Component
Designations
|
Component
Balance
|
A4
|
1A3
|
$48,369,000
|
A4
|
2A2
|
$23,819,000
|
A5
|
1AMZ
|
$30,314,000
|
A5
|
2AMZ
|
$14,917,000
|
(5)
|
The
Class A4 Interest will bear interest during each Interest Accrual
Period
based on the interest rates of its components, which is (A) for the
1A3
interest, a per annum rate equal to the least of (i)
one-month LIBOR plus 0.270% (0.540% after the first distribution
date on
which the optional clean-up call is exercisable), (ii) the Tax Collateral
Group I Cap and (iii) the Tax WAC Cap and (B) for the 2A2 interest,
a
per annum rate equal to the least of (i) one-month LIBOR plus
0.270% (0.540% after the first distribution date on which the optional
clean-up call is exercisable), (ii) the Tax Collateral Group II Cap
and
(iii) the Tax WAC Cap.
|
10
(6)
|
The
Class A5 Interest will bear interest during each Interest Accrual
Period
based on the interest rates of its components, which is (A) for the
1AMZ
interest, a per annum rate equal to the least of (i) one-month
LIBOR plus 0.280% (0.560% after the first distribution date on which
the
optional clean-up call is exercisable), (ii) the Tax Collateral Group
I
Cap and (iii) the Tax WAC Cap and (B) for the 2AMZ interest, a per
annum rate equal to the least of (i) one-month LIBOR plus 0.280%
(0.560% after the first distribution date on which the optional clean-up
call is exercisable), (ii) the Tax Collateral Group II Cap and (iii)
the
Tax WAC Cap.
|
(7)
|
The
Class M1 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.320% (0.480% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC
Cap.
|
(8)
|
The
Class M2 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.360% (0.540% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC
Cap.
|
(9)
|
The
Class M3 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.410% (0.615% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC
Cap.
|
(10)
|
The
Class M4 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.800% (1.200% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC
Cap.
|
(11)
|
The
Class M5 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.900% (1.350% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC
Cap.
|
(12)
|
The
Class M6 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to lesser of (i) one-month LIBOR plus
1.050% (1.575% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC
Cap.
|
(13)
|
The
Class B1 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) and (ii) the Tax WAC
Cap.
|
(14)
|
The
Class B2 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) and (ii) the Tax WAC
Cap.
|
11
(15)
|
The
Class X Interest will have a principal balance to the extent of any
Overcollateralized Amount. The Class X Interest will not accrue
interest on such balance but will accrue interest on a notional principal
balance. As of any Distribution Date, the Class X Interest
shall have a notional principal balance equal to the aggregate of
the
principal balances of the REMIC 4 Regular Interests as of the first
day of
the related Interest Accrual Period. With respect to any
Interest Accrual Period, the Class X Interest shall bear interest
at a
rate equal to the excess, if any, of the Tax WAC Cap over the product
of
(i) two (2) and (ii) the weighted average REMIC 4 Interest Rate of
the
REMIC 4 Regular Interests, where the REMIC 4 Interest Rates on the
Class
4-Accrual Interest is subject to a cap equal to zero and each 4-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 X
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 X
Certificates will represent beneficial ownership of a regular interest
issued by the Class X REMIC, the Interest Rate Swap Agreements, the
Supplemental Interest Trust and amounts in the Excess Reserve Fund
Account
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 X 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 X Certificateholders in favor of
each
Class of Principal Certificates. Such rights of the Class X
Certificateholders and Floating Rate 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.
|
(16)
|
Each
of the Certificates will bear interest at a pass-through rate equal
to the
pass through rate in respect of its Corresponding Upper-Tier REMIC
Class
substituting the term “WAC Cap”, “Collateral Group I WAC Cap” and
“Collateral Group II WAC Cap”, as applicable, for each reference to “Tax
WAC Cap”, “Tax Collateral Group I Cap” and “Tax Collateral Group II Cap”,
as applicable. The “REMIC Cap”, as used herein, will equal: (i)
the lesser of the Tax Collateral Group I Cap and the Tax WAC Cap
in the
case of the Class 1A1 Certificates, Class 1A2 Certificates, 1A3 Component
and 1AMZ Component; (ii) the lesser of the Tax Collateral Group II
Cap and
the Tax WAC Cap in the case of the Class 2A1 Certificates, 2A2 Component
and 2AMZ Component; and (iii) the Tax WAC Cap in the case of the
Class M
and Class B Certificates. Each of these Certificates will
represent not only the ownership of the Corresponding Class of 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 Certificates (“Tax 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 and the Supplemental Interest
Trust
as payments made pursuant to an interest rate cap contract written
by the
Class X Certificateholders.
|
12
(17)
|
For
each Distribution Date, 100% of the cash flow in respect of the Class
4-Swap IO-LIBOR and Class 4-Swap IO-FF Interests. The Class X
Certificates will be entitled to 100% of the cash flow in respect
of the
Class UT-Swap IO Interest.
|
Each
of
these 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 amount distributed on the Upper Tier REMIC Interests on any such
Distribution Date in excess of their Pass Through Rate, (the “REMIC Cap”)
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 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 Floating Rate
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 X
Certificateholders.
In
addition to issuing the Upper-Tier Regular Interests, the Upper-Tier REMIC
shall
issue the Class R Certificates, which shall be the sole class of residual
interests in the Upper-Tier REMIC. The Class R 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 R
Certificates shall be deemed paid from the Upper-Tier REMIC.
Class
X REMIC
The
Class
X REMIC shall issue the following classes of interests. The Class X
Certificates shall represent a regular interest in the Class X REMIC and the
Class RX Certificates shall represent the sole class of residual interest in
the
Class X REMIC.
Class
X REMIC
Designation
|
Interest
Rate
|
Class
X REMIC
Principal
Amount
|
Class
X Certificates
|
(1)
|
(1)
|
_________________
(1)
|
The
Class X Certificates are entitled to 100% of the interest and principal
on
the Class X Interest and the Class UT-Swap-IO Interest on each
Distribution Date.
|
In
addition to issuing the Class X Certificates, the Class X REMIC shall issue
the
Class RX Certificates which shall be the sole class of residual interests in
the
Class X REMIC. The Class RX 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 RX Certificates shall be
deemed paid from the Class X REMIC.
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the 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 Trust REMIC regular interest. It is not
intended that the Class R, Class RC or Class RX Certificates be entitled to
any
cash flow pursuant to this Agreement except as provided in Section
4.01(a)(ii)(A)(a) hereunder and with respect to the Class RC Certificates,
pursuant to Sections 11.01 or 11.02, as applicable.
13
For
any
purpose for which the Pass-Through Rates are calculated, the interest rate
on
the Mortgage Loans shall be appropriately adjusted to account for the difference
between the monthly day count convention of the 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 REMIC regular interests issued hereunder (except for regular interests
issued by the Master 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 Mortgage Loans and all regular interests will be using the same
monthly day count convention.
The
minimum denomination for each Class of the 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 R and Class RC
Certificates will each be $100 and each will be a 100% Percentage Interest
in
such Class, (b) the Class RX Certificates will be a 100% Percentage Interest
in
such Class, (c) the Class P Certificates will be $10 initial notional balance,
with integral multiples of $1 in excess thereof and (d) the Class X 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:
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
Class
A
Certificates
|
The
Class 1A1, Class 1A2, Class 2A1, Class A4 (comprised of the 1A3 and
2A2
components) and Class A5 (comprised of the 1AMZ and 2AMZ components)
Certificates, collectively.
|
Class
1A
Certificates
|
The
Class 1A1, Class 1A2, Class A4 (to the extent of the 1A3 component)
and
Class A5 (to the extent of the 1AMZ component) Certificates,
collectively.
|
Class
1A Supersenior Certificates
|
The
Class 1A1, Class 1A2 and Class A4 (to the extent of the 1A3 component)
Certificates, collectively.
|
Class
2A
Certificates
|
The
Class 2A1, Class A4 (to the extent of the 2A2 component) and Class
A5 (to
the extent of the 2AMZ component) Certificates,
collectively.
|
Class
2A Supersenior Certificates
|
The
Class 2A1 and Class A4 (to the extent of the 2A2 component) Certificates,
collectively.
|
Class
B
Certificates
|
The
Class B1 and Class B2 Certificates, collectively.
|
Class
M
Certificates
|
The
Class M1, Class M2, Class M3, Class M4, Class M5 and Class M6
Certificates, collectively.
|
Component
Classes
|
The
Class A4 (comprised of the 1A3 and 2A2 components) and Class A5 (comprised
of the 1AMZ and 2AMZ components) Certificates,
collectively.
|
Components
|
The
1A3, 1AMZ, 2A2 and 2AMZ components, collectively.
|
Residual
Certificates
|
The
Class R, Class RC and Class RX Certificates.
|
ERISA
Restricted
Certificates
|
The
Private Certificates and any Certificate with a rating below the
lowest
applicable permitted rating under the Underwriters’
Exemption.
|
LIBOR
Certificates
|
The
Principal Certificates, other than the Class 2A1
Certificates.
|
Principal
Certificates
|
The
Offered Certificates, other than the Residual
Certificates.
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
Private
Certificates
|
The
Class P and Class X Certificates.
|
Physical
Certificates
|
The
Class R, Class RC and Class RX Certificates.
|
Principal
Certificates
|
The
LIBOR and Class 2A1 Certificates, collectively.
|
Rating
Agencies
|
Xxxxx’x
and S&P.
|
Regular
Certificates
|
All
Classes of Certificates other than the Residual
Certificates.
|
Subordinated
Certificates
|
The
Class M and Class B Certificates.
|
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions. 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:
14
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 or Component’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.
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. 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: With respect to any Distribution Date, the
amount, if any, by which the aggregate Class Certificate Balance of the
Principal Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
15
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.
Assignment
Agreement: A Step 1 Assignment Agreement or a Step 2 Assignment
Agreement.
Auction
Call: As defined in Section 9.04(b).
Available
Funds: With respect to any Distribution Date and the Mortgage
Loans to the extent received by the Master Servicer (x) the sum of (without
duplication): (i) all scheduled installments of interest (net of the related
Expense Fees) and principal due on the Due Date on such 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 (in each case, net of unreimbursed expenses
incurred in connection with a liquidation or foreclosure and unreimbursed
Advances, if any); (iii) all partial or full prepayments (excluding Prepayment
Premiums) on the 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; (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; (vi)
all
Net Swap Receipt Amounts, if any, less Net Swap Payment Amounts, if any, for
such Distribution Date; and (vii) all proceeds received with respect to the
termination of the Trust Fund pursuant to Section 11.01; reduced by (y) all
amounts in reimbursement for Monthly Advances and Xxxxxxxxx Advances previously
made with respect to the 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.
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, the excess of (i) the aggregate Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, 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 Collateral Group I WAC Cap, the Collateral Group II WAC Cap
or
the 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 Collateral Group I WAC Cap,
the Collateral Group II WAC Cap or the WAC Cap, over (ii) the amount of interest
that Class of Certificates received on such Distribution Date taking into
account Collateral Group I WAC Cap, the Collateral Group II WAC Cap and the
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 Collateral
Group I WAC Cap, the Collateral Group II WAC Cap or the WAC Cap.
16
Basis
Risk Payment: For any Distribution Date, an amount equal to the
lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date, (ii) the Class X Distributable Amount (prior to any reduction
for Basis Risk Payments) or (iii) 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.
Cap
Provider: Barclays Bank PLC, a bank authorized and regulated by
the United Kingdom's Financial Services Authority and a member of the London
Stock Exchange, and its successors in interest.
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 (or Component of 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 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 P Certificates have a $100
notional certificate balance. The Class P Certificates will not
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 the Class X Certificates is equal initially to the Cut-off Date Pool
Principal Balance and thereafter to the Pool Stated Principal
Balance.
17
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.
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
1A1 Certificates: All Certificates bearing the class designation
of “Class 1A1.”
Class
1A2 Certificates: All Certificates bearing the class designation
of “Class 1A2.”
Class
1A Supersenior Certificates: As specified in the Preliminary
Statement.
Class
2A1 Certificates: All Certificates bearing the class designation
of “Class 2A1.”
Class
2A1 Interest Rate Cap Agreement: The interest rate cap agreement,
dated June 28, 2007, between the Cap Provider and the Trust, for the benefit
of
the Class 2A1 Certificates.
Class
2A1 Interest Rate Cap Payments: For the thirty-eight (38)
Distribution Dates on or after the Distribution Date in January 2009, the
amount, if any, equal to the product of (a) the number of basis points by which
One-Month LIBOR exceeds the strike rate set forth on the interest rate cap
agreement schedule attached to the Class 2A1 Interest Rate Cap Agreement, (b)
the interest rate cap notional amount set forth on the interest rate cap
agreement schedule attached to the Class 2A1 Interest Rate Cap Agreement, and
(c) the actual number of days in the applicable Interest Accrual Period divided
by 360.
18
Class
A4 Certificates: All Certificates bearing the class designation
of “Class A4.”
Class
A5 Certificates: All Certificates bearing the class designation
of “Class A5.”
Class
A5 Interest Rate Cap Agreement: The interest rate cap agreement,
dated June 28, 2007, between the Cap Provider and the Trust, for the benefit
of
the Class A5 Certificates.
Class
A5 Interest Rate Cap Payment: For forty-two (42) Distribution Dates on or
after the Distribution Date in November 2008, the amount, if any, as circulated
by the Cap Provider and reported to the Securities Administrator, equal to
the
product of (a) the number of basis points by which One-Month LIBOR exceeds
the
strike rate set forth on the interest rate cap agreement schedule attached
to
the Class A5 Interest Rate Cap Agreement, (b) the interest rate cap notional
amount set forth on the interest rate cap agreement schedule attached to the
Class A5 Interest Rate Cap Agreement, and (c) the actual number of days in
the
applicable Interest Accrual Period divided by 360.
Class
A Certificates: As specified in the Preliminary
Statement.
Class
A Principal Allocation Percentage: For any Distribution Date, the
percentage equivalent of a fraction, determined as follows: (A) with
respect to the Class 1A Certificates, a fraction, the numerator of which is
the
portion of the Principal Remittance Amount for such Distribution Date that
is
attributable to the principal received or advanced on the Collateral Group
I
Mortgage Loans and the denominator of which is the Principal Remittance Amount
for such Distribution Date and (B) with respect to the Class 2A Certificates,
a
fraction, the numerator of which is the portion of the Principal Remittance
Amount for such Distribution Date that is attributable to the principal received
or advanced on the Collateral Group II Mortgage Loans and the denominator of
which is the Principal Remittance Amount for such Distribution
Date.
Class
A Principal Distribution Amount: With respect to any Distribution
Date, the excess of (i) the aggregate Class Certificate Balance of the Class
A
Certificates immediately prior to such Distribution Date over (ii) the lesser
of
(A) 86.00% 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 Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class
B Certificates: As specified in the Preliminary
Statement.
Class
B1 Certificates: All Certificates bearing the class designation
of “Class B1.”
19
Class
B1 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 A Certificates (after taking into account
the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M1 Certificates (after
taking into account the distribution of the Class M1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M2 Certificates (after taking into account the distribution of the Class
M2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M3 Certificates (after taking into account
the
distribution of the Class M3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M4 Certificates (after
taking into account the distribution of the Class M4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M5 Certificates (after taking into account the distribution of the Class
M5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M6 Certificates (after taking into account
the
distribution of the Class M6 Principal Distribution Amount on such Distribution
Date) and (H) the Class Certificate Balance of the Class B1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 96.70% and (y) 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 Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class
B2 Certificates: All Certificates bearing the class designation
of “Class B2.”
Class
B2 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 A Certificates (after taking into account
the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M1 Certificates (after
taking into account the distribution of the Class M1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M2 Certificates (after taking into account the distribution of the Class
M2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M3 Certificates (after taking into account
the
distribution of the Class M3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M4 Certificates (after
taking into account the distribution of the Class M4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M5 Certificates (after taking into account the distribution of the Class
M5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M6 Certificates (after taking into account
the
distribution of the Class M6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class B1 Certificates (after
taking into account the distribution of the Class B1 Principal Distribution
Amount on such Distribution Date) and (I) the Class Certificate Balance of
the
Class B2 Certificates immediately prior to that Distribution Date over (ii)
the
lesser of (A) the product of (x) 97.90% and (y) 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 Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
20
Class
Certificate Balance: With respect to any Class (or Component of
any Class) and as to any date of determination, the aggregate of the Certificate
Balances of all Certificates of such Class (or Component) 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 X 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 X Interest on such
Distribution Date, all as further provided in Section 8.14.
Class
M Certificates: As specified in the Preliminary
Statement.
Class
M1 Certificates: All Certificates bearing the class designation
of “Class M1.”
Class
M1 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 A Certificates (after taking into account
the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M1 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
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.
Class
M2 Certificates: All Certificates bearing the class designation
of “Class M2.”
Class
M2 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 A Certificates (after taking into account
the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M1 Certificates (after
taking into account the distribution of the Class M1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of
the
Class M2 Certificates immediately prior to such Distribution Date over (ii)
the
lesser of (A) the product of (x) 91.60% and (y) 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 Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class
M3 Certificates: All Certificates bearing the class designation
of “Class M3.”
Class
M3 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 A Certificates (after taking into account
the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M1 Certificates (after
taking into account the distribution of the Class M1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M2 Certificates (after taking into account the distribution of the Class
M2 Principal Distribution Amount on such Distribution Date) and (D) the Class
Certificate Balance of the Class M3 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 92.90% and
(y)
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 Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
21
Class
M4 Certificates: All Certificates bearing the class designation
of “Class M4.”
Class
M4 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 A Certificates (after taking into account
the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M1 Certificates (after
taking into account the distribution of the Class M1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M2 Certificates (after taking into account the distribution of the Class
M2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M3 Certificates (after taking into account
the
distribution of the Class M3 Principal Distribution Amount on such Distribution
Date) and (E) the Class Certificate Balance of the Class M4 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 94.20% and (y) 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 Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class
M5 Certificates: All Certificates bearing the class designation
of “Class M5.”
Class
M5 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 A Certificates (after taking into account
the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M1 Certificates (after
taking into account the distribution of the Class M1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M2 Certificates (after taking into account the distribution of the Class
M2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M3 Certificates (after taking into account
the
distribution of the Class M3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M4 Certificates (after
taking into account the distribution of the Class M4 Principal Distribution
Amount on such Distribution Date) and (F) the Class Certificate Balance of
the
Class M5 Certificates immediately prior to such Distribution Date over (ii)
the
lesser of (A) the product of (x) 95.00% and (y) 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 Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class
M6 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 A Certificates (after taking into account
the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M1 Certificates (after
taking into account the distribution of the Class M1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M2 Certificates (after taking into account the distribution of the Class
M2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M3 Certificates (after taking into account
the
distribution of the Class M3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M4 Certificates (after
taking into account the distribution of the Class M4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M5 Certificates (after taking into account the distribution of the Class
M5 Principal Distribution Amount on such Distribution Date) and (G) the Class
Certificate Balance of the Class M6 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 95.70% and
(y)
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 Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
22
Class
P Certificates: All Certificates bearing the class designation of
“Class P.”
Class
R Certificates: All Certificates bearing the class designation of
“Class R.”
Class
RC Certificates: All Certificates bearing the class designation
of “Class RC.”
Class
RX Certificates: All Certificates bearing the class designation
of “Class RX.”
Class
X Certificates: All Certificates bearing the class designation of
“Class X.”
Class
X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued
on
the Class X 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 X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk
Payment.
Class
X Interest: The Upper-Tier Regular Interest as specified and
described in the Preliminary Statement and the related footnote
thereto.
Class
X REMIC: As defined in the Preliminary Statement.
Closing
Date: June 28, 2007.
Code: The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collateral
Group: The Collateral Group I Mortgage Loans or Collateral Group
II Mortgage Loans, as applicable.
23
Collateral
Group I Mortgage Loans: Interests consisting of 100% of
distributions from the Group I Mortgage Loans and 50% of distributions from
each
Group II Mortgage Loan.
Collateral
Group I WAC Cap: With respect to the Collateral Group I Mortgage
Loans as of any Distribution Date, a per annum rate equal to the lesser
of the WAC Cap and the product of (i) 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 Collateral Group I Mortgage Loans, and (B) the Net
Swap Receipt Amount, if any, less the Net Swap Payment Amount, if any, divided
by the Stated Principal Balance of the Mortgage Loans at the beginning of the
related Due Period multiplied by twelve (12) and (ii) thirty (30) divided by
the
actual number of days in the related Interest Accrual Period.
Collateral
Group II Mortgage Loans: Interests consisting of 50% of
distributions from each Group II Mortgage Loan.
Collateral
Group II WAC Cap: With respect to the Collateral Group II
Mortgage Loans as of any Distribution Date, a per annum rate equal to
the lesser of the WAC Cap and the product of (i) 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 Collateral Group II Mortgage Loans,
and (B) the Net Swap Receipt Amount, if any, less the Net Swap Payment Amount,
if any, divided by the Stated Principal Balance of the Mortgage Loans at the
beginning of the related Due Period multiplied by twelve (12) and (ii) thirty
(30) divided by the actual number of days in the related Interest Accrual
Period.
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) one-half the applicable monthly
servicing fee received for the related Distribution Date in the case of Avelo
and GreenPoint. 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.
Components: The
1A3, 1AMZ, 2A2 and 2AMZ components.
Component
Classes: As defined in the Preliminary Statement.
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.
24
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, Attention: Client Manager – GSAA Home
Equity Trust 2007-7 and its office for certificate transfer services is located
at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479,
Attention: Corporate Trust Services, GSAA 2007-7, 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 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: GSAA Home Equity Trust 2007-7, 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
4-1A1
|
Class
1A1
|
Class
1A1
|
Class
4-1A2
|
Class
1A2
|
Class
1A2
|
Class
4-2A1
|
Class
2A1
|
Class
2A1
|
Class
4-A4
|
Class
A4
|
Class
A4
|
Class
4-A5
|
Class
A5
|
Class
A5
|
Class
4-M1
|
Class
M1
|
Class
M1
|
Class
4-M2
|
Class
M2
|
Class
M2
|
Class
4-M3
|
Class
M3
|
Class
M3
|
Class
4-M4
|
Class
M4
|
Class
M4
|
Class
4-M5
|
Class
M5
|
Class
M5
|
Class
4-M6
|
Class
M6
|
Class
M6
|
Class
4-B1
|
Class
B1
|
Class
B1
|
Class
4-B2
|
Class
B2
|
Class
B2
|
Credit
Enhancment Percentage: For any
Distribution Date, the percentage obtained by dividing (x) the aggregate class
certificate balance of the Subordinate Certificates (including any
overcollateralization and 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 as of the last day of the related Due
Period.
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: June 1, 2007.
Cut-off
Date Pool Principal Balance: The aggregate Stated Principal
Balance of all Mortgage Loans as of the Cut-off Date.
25
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
either the LIBOR Swap Agreement or the Federal Funds Swap Agreement, as a result
of an Event of Default (as defined in the applicable interest rate swap
agreement) with respect to which the Swap Provider is the defaulting party
or a
Termination Event (as defined in the applicable interest rate swap agreement)
(other than Illegality or a Tax Event that is not a Tax Event Upon Merger (each
as defined in the applicable interest rate swap agreement)) with respect to
which the Swap Provider is the sole Affected Party (as defined in the applicable
interest rate swap agreement) or with respect to a termination resulting from
a
Substitution Event (as defined in the applicable 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 P and Class X 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.
26
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, for the benefit of registered holders of GSAA Home Equity Trust
2007-7, Asset-Backed Certificates, Series 2007-7.” 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 July
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.
Effective
Federal Funds Rate: For each Federal Funds Determination Date
during any Federal Funds Calculation Period, the rate set forth in H.15(519)
for
the preceding New York business day opposite the caption "Federal funds
(effective)", as such rate is displayed on the Bloomberg terminal; provided,
that
·
|
if,
by 5:00 p.m., New York City time, on a Federal Funds Determination
Date,
such rate does not appear on the Bloomberg terminal or is not yet
published in H.15(519), the rate for that Federal Funds Determination
Date
will be the rate set forth in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, for
that
day opposite the caption "Federal funds (effective)";
and
|
·
|
if,
by 5:00 p.m., New York City time, on the Federal Funds Determination
Date,
such rate does not appear on the Bloomberg terminal or is not yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source, the rate for that Federal Funds Determination Date will be
the
rate for the first preceding day for which such rate is set forth
in
H.15(519) opposite the caption "Federal funds (effective)", as such
rate
is displayed on the Bloomberg
terminal.
|
27
Notwithstanding
the foregoing, for any calendar day during a Federal Funds Calculation Period
that occurs after the related Federal Funds Calculation Date, the “Effective
Federal Funds Rate” shall be equal to the Effective Federal Funds Rate
determined as of such Federal Funds Calculation Date and for any other calendar
day during a Federal Funds Calculation Period that is not a Federal Funds
Determination Date, the “Effective Federal Funds Rate” shall be equal to the
Effective Federal Funds Rate determined as of the immediately preceding Federal
Funds Determination Date.
Eligible
Account: 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 S&P, “F1” by Fitch
and “P-1” by Moody’s (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 and 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. Notwithstanding anything to
the contrary contained in this paragraph, a depository will be acceptable to
S&P if its short-term unsecured debt obligations are rated “A-2” or above
or, if such depository’s short-term unsecured debt obligations are not rated,
its long-term unsecured debt obligations are rated “BBB+” or above by
S&P. If the depository in which the Eligible Account is held
ceases to be acceptable to S&P, the Eligible Account shall be transferred
within thirty (30) days to a substitute depository which is acceptable to
S&P.
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.
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,
the excess, if any, of (a) the Overcollateralized Amount on such Distribution
Date over (b) the Specified Overcollateralized Amount for 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, for the benefit of registered holders of GSAA
Home
Equity Trust 2007-7, Asset-Backed Certificates, Series 2007-7.” Funds
in the Excess Reserve Fund Account shall be 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.
28
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, the
lesser of (x) the related Total Monthly Excess Spread for that Distribution
Date
and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Fair
Market Value Excess: As defined in Section 11.01.
Xxxxxx
Xxx: The Federal National Mortgage Association, and its
successors in interest.
Federal
Funds Calculation Date: For any Distribution Date, the fourth New
York Business Day prior to such Distribution Date. The Securities
Administrator shall determine the Federal Funds Rate for each Distribution
Date
on the related Federal Funds Calculation Date.
Federal
Funds Calculation Period: (a) For any Distribution Date other
than the first Distribution Date, the period commencing on (and not including)
the immediately preceding Distribution Date and ending on (and including) such
Distribution Date and (b) for the first Distribution Date, the period commencing
on (and not including) June 28, 2007 and ending on (and including) the first
Distribution Date.
Federal
Funds Determination Date: With respect to any Federal Funds
Calculation Period, each New York Business Day occurring during such period
up
to and including the Federal Funds Calculation Date for such calculation
period.
Federal
Funds Rate: For each Distribution Date, the daily weighted
average (rounded to the fifth (5th) decimal place) of the Effective Federal
Funds Rate during the related Federal Funds Calculation Period.
29
Federal
Funds Swap Agreement: The interest rate swap agreement based on
the Effective Federal Funds Rate, dated as of February 16, 2007, between the
GSAA Home Equity Trust 2007-7 and the Swap Provider and assigned to the
Supplemental Interest Trust (including any related schedules) assigned to the
Supplemental Interest Trust.
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 July 2037.
Fitch: Fitch,
Inc.
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.
Group: The
Group I Mortgage Loans or the Group II Mortgage Loans, as
applicable.
Group
I Mortgage Loans: The Mortgage Loans identified on the Mortgage
Loan Schedule as Group I Mortgage Loans.
Group
II Mortgage Loans: The Mortgage Loans identified on the Mortgage
Loan Schedule as Group II Mortgage Loans.
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, 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. For purposes of
computing interest accruals on each Class of Principal Certificates, each
Interest Accrual Period has the actual number of days in such period and each
year is assumed to have 360 days.
Interest
Rate Cap Agreements: The Class 2A1 Interest Rate Cap Agreement
and the Class A5 Interest Rate Cap Agreement.
30
Interest
Rate Cap Payments: The Class 2A1 Interest Rate Cap Payments and
the Class A5 Interest Rate Cap Payments, as applicable.
Interest
Rate Swap Agreements: The LIBOR Swap Agreement and the Federal
Funds Swap Agreement.
Interest
Remittance Amount: With respect to any Distribution Date and any
Group, that portion of Available Funds attributable to interest relating to
the
Mortgage Loans in such Collateral Group net of any Net Swap Payments, if
applicable, made from such Collateral Group with respect to such Distribution
Date.
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: With
respect to any LIBOR Determination Date, the London interbank offered rate
for
one-month United States dollar deposits which appears on Reuters Screen LIBOR
01
Page, as reported by Bloomberg Financial Markets Commodities News (or such
other
page as may replace Reuters Screen LIBOR 01 Page for the purpose of displaying
comparable rates), as of 11:00 a.m. (London time) on that date. If
the rate does not appear on Reuters Screen LIBOR 01 Page (or such other page
as
may replace Reuters Screen LIBOR 01 Page for the purpose of displaying
comparable rates), the rate for that day will be determined on the basis of
the
rates at which deposits in United States dollars are offered by the Reference
Banks at approximately 11:00 a.m. London time on that day to leading banks
in
the London interbank market. The Securities Administrator shall 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.
LIBOR
Swap Agreement: The interest rate swap agreement, based on
one-month LIBOR, dated as of February 16, 2007, between the GSAA Home Equity
Trust 2007-3 and the Swap Provider and assigned to the Supplemental Interest
Trust (including any related schedules) assigned to the Supplemental Interest
Trust.
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.
31
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.
London
Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Majority
Class X Certificateholder: The Holder or Holders of a majority of
the Percentage Interests in the Class X Certificates.
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 fifth calendar day 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 4.02.
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.
32
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: An individual Mortgage Loan which is the subject of a Sale
Agreement and a Servicing Agreement, each Mortgage Loan originally sold and
subject to any Sale Agreement being identified on the Mortgage Loan Schedule,
which 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 Mortgage Loan.
Mortgage
Loan Documents: The mortgage loan documents pertaining to each
Mortgage Loan.
Mortgage
Loan Schedule: A schedule of Mortgage Loans annexed hereto as
Schedule I (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 mortgage insurance policy,
the
premium rate; (26) the type of appraisal; (27) a code indicating whether the
Mortgage Loan is a MERS Loan; (28) documentation type (including asset and
income type); (29) first payment date; (30) the schedule of the payment
delinquencies in the prior 12 months; (31) FICO score; (32) the Mortgagor’s
name; (33) the stated maturity date; (34) the original principal amount of
the
Mortgage Loan; (35) the name of the applicable Custodian; and (36) a code
indicating whether the Mortgage Loan is a Group I Mortgage Loan or a Group
II
Mortgage Loan. With respect to the Mortgage Loans in the aggregate:
(1) the number of Mortgage Loans; (2) the current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted average Mortgage
Interest Rate of the Mortgage Loans; and (4) the weighted average maturity
of
the Mortgage Loans.
33
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.
Net
Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
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 applicable Interest Rate Swap Agreement) payable
by the Supplemental Interest Trust to the Swap Provider, pursuant to the
applicable Section 4.01(a), on the related Fixed Rate Payer Payment Date (as
defined in the applicable Interest Rate Swap Agreement).
Net
Swap Receipt Amount: With respect to any Distribution Date, the
Floating Amount (as defined in the applicable 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 applicable Interest Rate
Swap Agreement).
New
York Business Day: For purposes of determining the Federal Funds
Rate and Effective Federal Funds Rate, a “New York Business Day” is any day on
which dealings in deposits of United States dollars are transacted in the New
York market.
NIM
Insurer: Any insurer guarantying at the request of the Depositor
or one of its Affiliates certain payments under the NIM Securities.
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 P and Class X Certificates.
NIM
Trustee: The trustee for the NIM Securities.
Non-Permitted
Transferee: As defined in Section 8.12(e).
34
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.
Notice
of Final Distribution: The notice to be provided pursuant to
Section 11.02 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, 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.
Outstanding: With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
35
(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, the excess, if any, of (a)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (b) the aggregate of the Class Certificate Balances
of
the Principal Certificates as of such Distribution Date (after giving effect
to
the payment of the Principal Remittance Amount on such Certificates on such
Distribution Date).
Overcollateralization
Deficiency: With respect to any Distribution Date, the excess, if
any, of (a) the Specified Overcollateralized Amount applicable to such
Distribution Date over (b) the Overcollateralized Amount applicable to such
Distribution Date.
Overcollateralization
Floor: With respect to any Distribution Date, 0.50% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
Overcollateralization
Reduction Amount: With respect to any Distribution Date, an
amount equal to the lesser of (a) the Excess Overcollateralized Amount and
(b)
the Net Monthly Excess Cash Flow.
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.
P&I
Advances: Advances made by the servicers or the Master Servicer
(including the Trustee as successor master servicer and any other successor
master servicer) as successor servicer with respect to delinquent payments
of
interest and principal on the Mortgage Loans, less the servicing fee or the
master servicing fee, as applicable.
Par
Value: An amount equal to the greater of (a) the sum of (1) 100%
of the unpaid principal balance of the Mortgage Loans (other than Mortgage
Loans
related to REO Properties), (2) interest accrued and unpaid on the Mortgage
Loans, (3) any unreimbursed P&I Advances, fees and expenses of the Master
Servicer, the Securities Administrator and the Trustee, (4) any expenses
incurred during the exercise of the Auction Call, (5) any Swap Termination
Payment other than a Defaulted Swap Termination Payment owed to the Swap
Provider and (6) with respect to any REO Property, 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 related to any REO Property, and (b) the sum of (1) the aggregate unpaid
Class Certificate Balance of each Class of Certificates then outstanding, (2)
interest accrued and unpaid on the Certificates, (3) any unreimbursed P&I
Advances, fees and expenses of the Master Servicer, the Securities Administrator
and the Trustee and (4) any Swap Termination Payment other than a Defaulted
Swap
Termination Payment owed to the Swap Provider.
36
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.
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 sixty (60) 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) the
Xxxxx Fargo Advantage Prime Investment Money Market Fund and other 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
37
(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 and reasonably
acceptable to the NIM Insurer, as evidenced by a signed writing delivered by
the
NIM Insurer;
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.
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.
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.
38
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.
Principal
Certificates: As specified in the Preliminary
Statement.
Principal
Distribution Amount: For any Distribution Date, the sum of (i)
the Basic Principal Distribution Amount for such Distribution Date and (ii)
the
Extra Principal Distribution Amount for such Distribution Date.
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 the
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 such 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 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 11.01 (to the extent such
proceeds relate to principal).
Private
Certificates: As specified in the Preliminary
Statement.
39
Prospectus
Supplement: The Prospectus Supplement, dated May 25, 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.
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 4.04.
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.
40
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.
Remittance
Date: With respect to any Distribution Date, (i) with respect to
the Mortgage Loans serviced by Avelo and GreenPoint, 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 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.
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.
41
Responsible
Party: GreenPoint and Xxxxx Fargo each in its capacity as seller
under the applicable Sale Agreement. With respect to the Goldman
Conduit Mortgage Loans, the Purchaser.
Reuters
Screen LIBOR 01: The display page currently so designated on the
Reuters Monitor Money Rates Service (or such other page as may replace that
page
on that service for the purpose of displaying comparable rates or
prices).
Rule
144A: Rule 144A under the Securities Act.
Rule
144A Letter: As defined in Section 5.02(b).
Sale
Agreement: Each of the GreenPoint Sale 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,
the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (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 as of the
first day of the month in which such Distribution Date occurs.
Senior
Specified Enhancement Percentage: As of any date of
determination, 14.00%.
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 Principal Prepayment Period divided by the Cut-off Date Pool Principal
Balance exceeds 0.550% or (y) on any Distribution Date on or after the 37th
Distribution Date, a Trigger Event is in effect.
Servicer: Each
of Avelo, GreenPoint and Xxxxx Fargo, in its capacity as servicer under the
related Servicing Agreement, or any successor servicer appointed pursuant to
such Servicing Agreement.
42
Servicing
Advances: As defined in the related Servicing
Agreement.
Servicing
Agreement: Each of the Avelo Servicing Agreement, the GreenPoint
Servicing Agreement and the Xxxxx Fargo 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.
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: Prior to the Stepdown Date, an amount
equal to 1.05% of the Cut-off Date Pool Principal Balance. On and
after the Stepdown Date, an amount equal to 2.10% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, subject,
until the Class Certificate Balance of each Class of Principal Certificates
has
been reduced to zero, to a minimum amount equal to the Overcollateralization
Floor; provided, however, that if, on any Distribution Date, a
Trigger Event has occurred, the Specified Overcollateralized Amount shall not
be
reduced to the applicable percentage of the then current aggregate Stated
Principal Balance of the Mortgage Loans but instead will remain the same as
the
prior period’s Specified Overcollateralized Amount until the Distribution Date
on which a Trigger Event is no longer occurring. When the Class
Certificate Balance of each Class of Principal Certificates has been reduced
to
zero, the Specified Overcollateralized Amount will thereafter be
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 2007-7, 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.
43
Step
1
Assignment Agreement: Each of the (i) Assignment, Assumption and
Recognition Agreement, dated as of June 28, 2007, between the Purchaser, Avelo
and the Depositor; (ii) Assignment, Assumption and Recognition Agreement, dated
as of June 28, 2007, between the Purchaser, GreenPoint and the Depositor; and
(iii) Assignment, Assumption and Recognition Agreement, dated as of June 28,
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 June 28, 2007, between the Depositor, the
Master Servicer, the Trustee and Avelo; (ii) Assignment, Assumption and
Recognition Agreement, dated as of June 28, 2007, between the Depositor, the
Master Servicer, the Trustee and GreenPoint; and (iii) Assignment, Assumption
and Recognition Agreement, dated as of June 28, 2007, between the Depositor,
the
Master Servicer, the Trustee and Xxxxx Fargo.
Stepdown
Date: The earlier to occur of (a) the date on which the aggregate
Class Certificate Balance of the Class A Certificates has been reduced to zero
and (b) the later to occur of (i) the Distribution Date in July 2010 and (ii)
the first Distribution Date following the Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage after giving effect to the distribution on such
Distribution Date.
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: Amounts received with respect to any Liquidated
Mortgage Loan after it has become a Liquidated Mortgage Loan.
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.
Supplemental
Interest Trust: The corpus of a trust created pursuant to Section
4.05 of this Agreement, consisting of the Interest Rate Swap Agreements, subject
to the obligation to pay amounts specified in Section 4.05.
44
Swap
Provider: Barclays Bank PLC, a bank authorized and regulated by
the United Kingdom's Financial Services Authority and a member of the London
Stock Exchange, and its successors in interest.
Swap
Termination Payment: Any payment payable by the Supplemental
Interest Trust or the Swap Provider upon termination of an 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 R, Class RC and Class RX
Certificates is designated as “tax matters person” of the Lower-Tier REMIC,
Middle-Tier REMIC and the 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: As defined in Section 11.01.
Total
Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the related
Remittance Date) or advanced on the Mortgage Loans for Due Dates during the
related Due Period (net of Expense Fees) plus the Net Swap Receipt Amount and
minus any Net Swap Payment Amount over (ii) the sum of the interest payable
to
the Principal Certificates on such Distribution Date pursuant to Section
4.01(a)(i); provided, that Net Swap Receipts shall be included
in Total Monthly Excess Spread (and correspondingly, in Extra Principal
Distribution Amount) only to the extent of current or prior Realized Losses
not
previously reimbursed.
Transaction
Documents: This Agreement, the Interest Rate Swap Agreements, the
Interest Rate Cap Agreements, 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).
Trigger
Event: With respect to any Distribution Date, the circumstances
in which (i) the 60 Day+ Rolling Average equals or exceeds 40.00% of the prior
period's Credit Enhancement Percentage for the Class A certificates (the 60
Day+
Rolling Average will equal the rolling 3 month average
percentage of Mortgage Loans that are sixty (60) or more days delinquent,
including Mortgage Loans in foreclosure, all REO Property and Mortgage Loans
where the Mortgagor has filed for bankruptcy) or (ii) the aggregate amount
of
Realized Losses incurred since the Cut-off Date through the last day of the
related Principal Prepayment Period divided by the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date exceeds the applicable
percentages described below with respect to such Distribution Date
45
Distribution
Date Occurring In
|
Loss
Percentage
|
July
2009 – June 2010
|
0.200%
for the first month, plus an additional 1/12th of 0.350% for each
month
thereafter (e.g., approximately 0.229% in August 2009)
|
July
2010 – June 2011
|
0.550%
for the first month, plus an additional 1/12th of 0.350% for each
month
thereafter (e.g., approximately 0.579% in August 2010)
|
July
2011 – June 2012
|
0.900%
for the first month, plus an additional 1/12th of 0.350% for each
month
thereafter (e.g., approximately 0.929% in August 2011)
|
July
2012 – June 2013
|
1.250%
for the first month, plus an additional 1/12th of 0.250% for each
month
thereafter (e.g., approximately 1.271% in August 2012)
|
July
2013 and thereafter
|
1.500%
|
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 Agreements and all amounts received thereunder; (iii) the Interest
Rate Cap Agreements 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 2007-7.
Trust
REMIC: As specified in the Preliminary Statement.
Trustee: U.S.
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.
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).
46
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 which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class
X
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) 1% of all Voting Rights shall be allocated to the Class P
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: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (i) 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 Mortgage Loans, and (B) the
Net
Swap Receipt Amount, if any, less the Net Swap Payment Amount, if any, divided
by the Stated Principal Balance of the Mortgage Loans at the beginning of the
related Due Period multiplied by twelve (12) and (ii) thirty (30) divided by
the
actual number of days in the related Interest Accrual Period.
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.
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.
47
WHFIT:
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: Treasury Regulations section 1.671-5, as amended.
WHMT:
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
2.01 Conveyance
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.
(b) 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;
(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;
48
(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.
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.
49
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.
(c) 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 2007-7” and U.S. Bank
is hereby appointed as Trustee in accordance with the provisions of this
Agreement.
(d) 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
2.02 Acceptance
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 States of Minnesota and California, unless otherwise
permitted by the Rating Agencies and Xxxxx Fargo, as Custodian, acknowledges
that it will maintain possession of the related Mortgage Notes in the States
of
Minnesota or California, unless otherwise permitted by the Rating
Agencies.
50
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.
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.
51
Section
2.03 Execution
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
2.04 REMIC
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” is May 25, 2037, and for
distributions on the residual certificates, is May 25, 2047, which is the
Distribution Date following the latest Mortgage Loan maturity
date. Amounts paid to the Class X Certificates (prior to any
reduction for any Basis Risk Payment or Swap Termination Payment) shall be
deemed paid from the Upper-Tier REMIC to the Class X REMIC in respect of the
Class X Interest and from the Class X REMIC to the holders of the Class X
Certificates prior to distribution of Basis Risk Payments to the Principal
Certificates.
Amounts
distributable to the Class X Certificates (prior to any reduction for any Net
Swap Receipt Amounts, Net Swap Payment Amounts or Swap Termination Payment),
shall be deemed paid from the Class X REMIC to the Holders of the Class X
Certificates prior to distribution of any Basis Risk Payments to the Principal
Certificates.
For
federal income tax purposes, any amount distributed on the Principal
Certificates 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.
52
Section
2.05 Representations
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;
(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;
53
(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
2.06 Representations
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.
(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.
54
Section
2.07 Representations
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
2.08 Representations
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:
(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.
55
(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
2.09 Representations
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.
(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.
56
ARTICLE
III
TRUST
ACCOUNTS
Section
3.01 Excess
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 the Principal Certificateholders any Basis Risk Carry
Forward Amounts (prior to using any Net Swap Receipt Amounts). 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 first from the Excess
Reserve Fund Account and then from the Supplemental Interest Trust.
On
each
Distribution Date on which there exists a Basis Risk Carry Forward Amount on
any
Class or Classes of 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 4.01(a)(iii)(d), the lesser of (x) the Class
X
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)-(c)) and (y)
the
aggregate Basis Risk Carry Forward Amount of the 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))
to pay to such Class or Classes of Certificates the related Basis Risk Carry
Forward Amount. Such payments shall be allocated to those Classes
based upon the amount of Basis Risk Carry Forward Amount owed to each such
Class
and shall be paid in the priority set forth in Section
4.01(a)(iii)(e).
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. The beneficial owners of the Excess Reserve Fund Account
are the Class X Certificateholders. For all federal income tax
purposes, amounts transferred to the Excess Reserve Fund Account shall be
treated as distributions by the Securities Administrator from the Upper-Tier
REMIC to the Class X Interest and from the Class X REMIC to the Class X
Certificates and then contributed by the Class X Certificateholders to the
Excess Reserve Fund Account.
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 Class X 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 Basis Risk
Carry Forward Amounts as rights in a limited recourse interest rate cap contract
written by the Class X Certificateholders in favor of the Holders of each such
Class.
57
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).
(b) 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;
(ii) 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
(iii) 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.
(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
Agreements).
Section
3.02 Investment
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:
58
|
(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
|
|
(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, U.S. Bank, as
Trustee and as a Custodian, and BNY, Deutsche 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.
59
(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, U.S. Bank, as a Trustee and as a Custodian is required to obtain,
verify and record certain information relating to individuals and entities
which
maintain a business relationship with U.S. Bank. Accordingly, each of
the parties agrees to provide to U.S. 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.
(g) In
order to comply with laws, rules, regulations and executive orders in effect
from time to time applicable to banking institutions, including those relating
to the funding of terrorist activities and money laundering, Deutsche Bank,
as 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 identifying information and
documentation as may be available for such party in order to enable Deutsche
Bank to comply with such laws, rules, regulations and executive
orders.
ARTICLE
IV
DISTRIBUTIONS
Section
4.01 Priorities
of Distribution. (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:
(i) to
the
holders of each Class of 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) concurrently,
(x) from the Interest Remittance Amount allocable to the Collateral Group I
Mortgage Loans, to the Class 1A Certificates, their Accrued Certificate Interest
and Unpaid Interest Amounts, allocated pro rata based on their
respective entitlements to those amounts and (y) from the Interest Remittance
Amount allocable to the Collateral Group II Mortgage Loans, to the Class 2A
Certificates, their Accrued Certificate Interest and Unpaid Interest Amounts,
allocated pro rata based on their respective entitlements to those
amounts; provided, that if such funds allocable to either group of
Mortgage Loans are insufficient to make the related payments set forth above,
any such funds allocable to the other group remaining after making the related
payments set forth above will be available to cover that shortfall;
60
(c) from
any
remaining Interest Remittance Amounts, to the Class M Certificates,
sequentially, in ascending numerical order, their related Accrued Certificate
Interest for that Distribution Date; and
(d) from
any
remaining Interest Remittance Amounts, to the Class B Certificates sequentially,
in ascending numerical order, their related Accrued Certificate Interest for
that Distribution Date;
(ii) (A) on
each Distribution Date (x) prior to the Stepdown Date or (y) with respect to
which a Trigger Event is in effect, to the holders of the Class or Classes
of
Principal Certificates and Residual Certificates then entitled to distributions
of principal as set forth below, an amount equal to the Principal Distribution
Amount in the following order of priority:
(a) concurrently,
to the Class R, Class RC and Class RX Certificates, pro rata, from the
Principal Distribution Amount related to the Collateral Group II Mortgage Loans,
until their respective Class Certificate Balances have been reduced to
zero;
(b) to
the
Class A Certificates, in the following order of priority:
concurrently,
(i)
|
from
the Principal Distribution Amount related to the Class 1A Certificates
(based on the Class A Principal Allocation Percentage), concurrently,
to
the Class 1A Supersenior Certificates and 1AMZ Component, allocated
pro rata, until their respective Class Certificate Balances have
been reduced to zero; with the exception that if a Sequential Trigger
Event is in effect, principal distributions to the Class 1A Supersenior
Certificates and 1AMZ Component will be allocated sequentially to
the
Class 1A1 Certificates, Class 1A2 Certificates, 1A3 Component and
1AMZ
Component, in that order, until their respective Class Certificate
Balances have been reduced to zero. Principal distributions to
the Class 1A Supersenior Certificates pursuant to this Section
4.01(a)(ii)(A)(b)(i) shall be allocated sequentially to the Class
1A1
Certificates, Class 1A2 Certificates and 1A3 Component, in that order,
until their respective Class Certificate Balances have been reduced
to
zero.
|
(ii)
|
from
the Principal Distribution Amount related to the Class 2A Certificates
(based on the Class A Principal Allocation Percentage), concurrently,
to
the Class 2A Supersenior Certificates and 2AMZ Component, allocated
pro rata, until their respective Class Certificate Balances have
been reduced to zero; with the exception that if a Sequential Trigger
Event is in effect, principal distributions to the Class 2A Supersenior
Certificates and 2AMZ Component will be allocated sequentially to
the
Class 2A1 Certificates, 2A2 Component and 2AMZ Component, in that
order,
until their respective Class Certificate Balances have been reduced
to
zero. Principal distributions to the Class 2A Supersenior
Certificates pursuant to this Section 4.01(a)(ii)(A)(b)(ii) shall
be
allocated sequentially to the Class 2A1 Certificates and 2A2 Component,
in
that order, until their respective Class Certificate Balances have
been
reduced to zero.
|
61
provided,
that if the Class Certificate Balances and component principal balances of
any of the Class 1A or Class 2A Certificates is reduced to zero, then the
remaining amount of principal distributions distributable to the Class A
Certificates on such Distribution Date and the amount of those principal
distributions on each subsequent Distribution Date will be distributed to the
Class A Certificates remaining outstanding in accordance with the applicable
distribution priorities in this clause (b), until their respective Class
Certificate Balances have been reduced to zero;
(c) from
any
remaining Principal Distribution Amounts, to the Class M Certificates,
sequentially, in ascending numerical order, until their respective Class
Certificate Balances have been reduced to zero; and
(d) from
any
remaining Principal Distribution Amounts, to the Class B Certificates,
sequentially, in ascending numerical order, until their respective Class
Certificate Balances have been reduced to zero;
(B) on
each Distribution Date (x) on or after the Stepdown Date and (y) as long as
a
Trigger Event is not in effect, to the holders of the Class or Classes of
Principal Certificates then entitled to distribution of principal as set forth
below, an amount equal to the Principal Distribution Amount in the following
order of priority:
(a) to
the
Class A Certificates, in the following order of priority:
concurrently,
(i)
|
to
the Class 1A Certificates, in each case, in an aggregate amount equal
to
the lesser of the allocable portion for the Class 1A Certificates
(based
on the Class A Principal Allocation Percentage) of the Principal
Distribution Amount and the allocable portion for the Class 1A
Certificates (based on the Class A Principal Allocation Percentage)
of the
Class A Principal Distribution Amount, concurrently, to the Class
1A
Supersenior Certificates and the 1AMZ Component, allocated pro
rata, until their respective Class Certificate Balances have been
reduced to zero. Principal distributions to the Class 1A Supersenior
Certificates pursuant to this Section 4.01(a)(ii)(B)(a)(i) shall
be
allocated sequentially to the Class 1A1 Certificates, Class 1A2
Certificates and 2A2 Component, in that order, until their respective
Class Certificate Balances have been reduced to
zero.
|
62
(ii)
|
to
the Class 2A Certificates, in each case, in an aggregate amount equal
to
the lesser of the allocable portion for the Class 2A Certificates
(based
on the Class A Principal Allocation Percentage) of the Principal
Distribution Amount and the allocable portion for the Class 2A
Certificates (based on the Class A Principal Allocation Percentage)
of the
Class A Principal Distribution Amount concurrently, to the Class
2A
Supersenior Certificates and the 2AMZ Component, allocated pro
rata, until their respective Class Certificate Balances have been
reduced to zero. Principal distributions to the Class 2A
Supersenior Certificates pursuant to this Section 4.01(a)(ii)(B)(a)(ii)
shall be allocated sequentially to the Class 2A1 Certificates and
2A2
Component, in that order, until their respective Class Certificate
Balances have been reduced to zero;
|
provided
that if the Class Certificate Balances and component principal balances of
any of the Class 1A or Class 2A Certificates is reduced to zero, then the
remaining amount of principal distributions distributable to the Class A
Certificates on such Distribution Date and the amount of those principal
distributions on each subsequent Distribution Date will be distributed to the
Class A Certificates remaining outstanding in accordance with the applicable
distribution priorities in this clause (a), until their respective Class
Certificate Balances have been reduced to zero;
(b) to
the
Class M1 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
in clause (ii)(B)(a) above and (y) the Class M1 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to zero;
(c) to
the
Class M2 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
in clause (ii)(B)(a) above and to the Class M1 Certificates in clause (ii)(B)(b)
above and (y) the Class M2 Principal Distribution Amount, until their Class
Certificate Balance has been reduced to zero;
(d) to
the
Class M3 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
in clause (ii)(B)(a) above, to the Class M1 Certificates in clause (ii)(B)(b)
above and to the Class M2 Certificates in clause (ii)(B)(c) above and (y) the
Class M3 Principal Distribution Amount, until their Class Certificate Balance
has been reduced to zero;
(e) to
the
Class M4 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
in clause (ii)(B)(a) above, to the Class M1 Certificates in clause (ii)(B)(b)
above, to the Class M2 Certificates in clause (ii)(B)(c) above and to the Class
M3 Certificates in clause (ii)(B)(d) above and (y) the Class M4 Principal
Distribution Amount, until their Class Certificate Balance has been reduced
to
zero;
63
(f) to
the
Class M5 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
in clause (ii)(B)(a) above, to the Class M1 Certificates in clause (ii)(B)(b)
above, to the Class M2 Certificates in clause (ii)(B)(c) above, to the Class
M3
Certificates in clause (ii)(B)(d) above and to the Class M4 Certificates in
clause (ii)(B)(e) above and (y) the Class M5 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to zero;
(g) to
the
Class M6 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
in clause (ii)(B)(a) above, to the Class M1 Certificates in clause (ii)(B)(b)
above, to the Class M2 Certificates in clause (ii)(B)(c) above, to the Class
M3
Certificates in clause (ii)(B)(d) above, to the Class M4 Certificates in clause
(ii)(B)(e) above and to the Class M5 Certificates in clause (ii)(B)(f) above
and
(y) the Class M6 Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero;
(h) to
the
Class B1 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
in clause (ii)(B)(a) above, to the Class M1 Certificates in clause (ii)(B)(b)
above, to the Class M2 Certificates in clause (ii)(B)(c) above, to the Class
M3
Certificates in clause (ii)(B)(d) above, to the Class M4 Certificates in clause
(ii)(B)(e) above, to the Class M5 Certificates in clause (ii)(B)(f) above and
to
the Class M6 Certificates in clause (ii)(B)(g) above and (y) the Class B1
Principal Distribution Amount, until their Class Certificate Balance has been
reduced to zero;
(i) to
the
Class B2 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
in clause (ii)(B)(a) above, to the Class M1 Certificates in clause (ii)(B)(b)
above, to the Class M2 Certificates in clause (ii)(B)(c) above, to the Class
M3
Certificates in clause (ii)(B)(d) above, to the Class M4 Certificates in clause
(ii)(B)(e) above, to the Class M5 Certificates in clause (ii)(B)(f) above,
to
the Class M6 Certificates in clause (ii)(B)(g) above and to the Class B1
Certificates in clause (ii)(B)(h) above and (y) the Class B2 Principal
Distribution Amount, until their Class Certificate Balance has been reduced
to
zero; and
(iii) any
Available Funds remaining after the distributions in clauses (i) and (ii) above
is required to be distributed in the following order of priority with respect
to
the certificates:
(a) if
and to
the extent that the Interest Remittance Amounts distributed pursuant to clause
(i) above were insufficient to make the full distributions in respect of
interest set forth in such clause, (x) to the holders of each Class of the
Class
A Certificates, any Accrued Certificate Interests and Unpaid Interest Amounts,
pro rata among such Classes based on their entitlement to those
amounts, and then (y) to the holders of each Class of the Class M and Class
B
Certificates, any Accrued Certificate Interests for that Distribution Date,
in
the order of priority for such Classes set forth in clause (i)
above;
64
(b) to
the
Class M Certificates, sequentially, in ascending numerical order, any Unpaid
Interest Amounts for those Classes;
(c) to
the
Class B Certificates, sequentially, in ascending numerical order, any Unpaid
Interest Amounts for those Classes;
(d) to
the
Excess Reserve Fund Account, the amount of any Basis Risk Payment (without
regard to Net Swap Receipt Amounts) for that Distribution Date;
(e) from
funds on deposit in the Excess Reserve Fund Account with respect to that
Distribution Date (not including any Interest Rate Cap Payments), an amount
equal to any Basis Risk Carry Forward Amount with respect to the 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 A Certificates being allocated pro
rata based on their Class Certificate Balances or component principal
balances, as applicable; provided, that, if for any
Distribution Date, after the allocation of the remaining unpaid Basis Risk
Carry
Forward Amounts to the Class A Certificates, the remaining unpaid Basis Risk
Carry Forward Amount for any of the Class A Certificates or any component is
reduced to zero, any amount of remaining unpaid Basis Risk Carry Forward Amount
that would have been allocated to that Class A Certificate or component for
that
Distribution Date will instead be allocated, pro rata, based on their
respective remaining unpaid Basis Risk Carry Forward Amounts, to the other
Class
A Certificates (and with respect to the Component Classes, to the
related Components) to the extent the other Class A Certificates (or Components)
have any remaining unpaid Basis Risk Carry Forward Amounts;
(f) to
the
Supplemental Interest Trust, the amount of any Defaulted Swap Termination
Payment owed to the Swap Provider;
(g) from
any
Class 2A1 Interest Rate Cap Payments from the Class 2A1 Interest Rate Cap
Agreement on deposit in the Excess Reserve Fund Account with respect to that
Distribution Date, first, to the Class 2A1 Certificates, up to its unpaid
remaining Basis Risk Carry Forward Amount, and second, from any remaining Class
2A1 Interest Rate Cap Payments from the Class 2A1 Interest Rate Cap Agreement,
after the distributions to the Class 2A1 Certificates, such remaining amount
to
be paid to or at the written direction of the Depositor;
(h) from
any
Class A5 Interest Rate Cap Payments from the Class A5 Interest Rate Cap
Agreement on deposit in the Excess Reserve Fund Account with respect to that
Distribution Date, first, to the Class A5 Certificates, up to its unpaid
remaining Basis Risk Carry Forward Amount, and second, from any remaining Class
A5 Interest Rate Cap Payments from the Class A5 Interest Rate Cap Agreement,
after the distributions to the Class A5 Certificates, such remaining amount
to
be paid to or at the written direction of the Depositor;
65
(i) to
the
Class X Certificates, the Class X Distributable Amount not distributed pursuant
to Section 4.01(a)(iii)(a) - (h); and
(j) to
the
holders of the Class R Certificates, any remaining amount.
On
each
Distribution Date, all amounts representing Prepayment Premiums from the
Mortgage Loans received during the related Principal Prepayment Period shall
be
distributed by the Securities Administrator to the holders of the Class P
Certificates.
Notwithstanding
the foregoing description of allocation of principal distributions to the Class
A Certificates, from and after the Distribution Date on which the aggregate
Class Certificate Balance of the Subordinated Certificates and the
Overcollateralized Amount have been reduced to zero, any principal distributions
to the holders of the Class A Certificates on any Distribution Date will be
allocated pro rata based on their respective Class Certificate Balances
until their respective Class Certificate Balances have been reduced to zero,
except that so long as a Sequential Trigger Event is in effect, principal
distributions (i) to the Class 1A Supersenior Certificates and 1AMZ Component
will be allocated to the Class 1A Supersenior Certificates, until their Class
Certificate Balances have been reduced to zero, and then to the 1AMZ Component,
until its Class Certificate Balance has been reduced to zero and (ii) to the
Class 2A Supersenior Certificates and 2AMZ Component will be allocated to the
Class 2A Supersenior Certificates, until their Class Certificate Balances have
been reduced to zero, and then to the 2AMZ Component, until its Class
Certificate Balance has been reduced to zero. Principal distributions
to the Class 1A Supersenior Certificates pursuant to this paragraph will be
allocated concurrently to the Class 1A1 Certificates, the Class 1A2 Certificates
and the 1A3 Component until their respective Class Certificate Balances have
been reduced to zero and principal distributions to the Class 2A Supersenior
Certificates pursuant to this paragraph will be allocated concurrently to the
Class 2A1 Certificates and the 2A2 Component until their respective Class
Certificate Balances have been reduced to zero.
On
any
Distribution Date, any Relief Act Shortfalls and any Net Prepayment Interest
Shortfalls will be allocated first to excess interest on the Mortgage Loans
(meaning the amount in respect of interest otherwise distributable on the Class
X Certificates) for the related Distribution Date and thereafter as a reduction
to the Accrued Certificate Interest for the Principal Certificates on a pro
rata basis based on the respective amounts of interest accrued on those
certificates for that Distribution Date. The holders of the Principal
Certificates will not be entitled to reimbursement for the allocation of any
of
those shortfalls described in the preceding sentence.
Upon
any
exercise of the purchase option set forth in Section 11.01, the Securities
Administrator shall distribute to the holders of the Class RC Certificates
any
amounts required to be distributed on the Class RC Certificates pursuant to
Section 11.01 or 11.02.
Section
4.02 Monthly
Statements to Certificateholders. (a) Not later than
each Distribution Date, the Securities Administrator shall make available to
each Certificateholder, the Depositor, the Trustee, the NIM Insurer and each
Rating Agency a statement based, in part, upon the information provided by
the
Servicers setting forth with respect to the related distribution:
66
(i) the
amount thereof allocable to principal, separately identifying the aggregate
amount of any Principal Prepayments and Liquidation Proceeds included
therein;
(ii) the
amount thereof allocable to interest, any Unpaid Interest Amount included in
such distribution and any remaining Unpaid Interest Amount after giving effect
to such distribution, any Basis Risk Carry Forward Amount for such Distribution
Date and the amount of all Basis Risk Carry Forward Amount covered by
withdrawals from the Excess Reserve Fund Account 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;
(iv) the
Class
Certificate Balance of each Class of Certificates and the notional amount of
the
Class P Certificates after giving effect to the distribution of principal on
such Distribution Date;
(v) the
aggregate Stated Principal Balance of the Mortgage Loans for the following
Distribution Date;
(vi) the
amount of the expenses and fees paid to or retained by the Servicer with respect
to such Distribution Date;
(vii) the
amount of any Administrative Fees paid to the Master Servicer or Securities
Administrator with respect to such Distribution Date;
(viii) the
Pass-Through Rate for each such Class of Certificates with respect to such
Distribution Date;
(ix) 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;
(x) 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;
(xi) the
total
number and principal balance of any REO Properties (and market value, if
available) as of the close of business on the Determination Date preceding
such
Distribution Date;
67
(xii) whether
a
Trigger Event has occurred and is continuing (including the calculation
demonstrating the existence of the Trigger Event and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xiii) the
amount on deposit in the Excess Reserve Fund Account (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 with respect to Unpaid Interest
Amounts;
(xvi) the
Overcollateralized Amount and Specified Overcollateralized Amount;
(xvii) the
Prepayment Premiums collected by or paid by the Servicers;
(xviii) the
percentage equal to the aggregate realized losses divided by the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date;
(xix) the
amount distributed on the Class X and Class P Certificates;
(xx) the
amount of any Subsequent Recoveries for such Distribution Date; and
(xxi) updated
Mortgage Loan information, such as weighted average interest rate, and weighted
average remaining term.
(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 which shall be
initially located at xxxx://xxx.xxxxxxx.xxx. Assistance in using the
website can be obtained by calling the Securities Administrator’s investor
relations desk at 0-000-000-0000. 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.
68
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
4.03 Allocation
of Applied Realized Loss Amounts. Any Applied Realized Loss
Amounts will be allocated to the most junior Class of Subordinated Certificates
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 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
4.04 Certain
Matters Relating to the Determination of LIBOR and the Federal Funds
Rate. 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.
The
Federal Funds Rate shall be calculated by the Securities Administrator in
accordance with the definition of “Federal Funds Rate.”
The
Pass-Through Rate for each Class of Principal Certificates for each Interest
Accrual Period shall be determined by the Securities Administrator on each
LIBOR
Determination Date or each Federal Funds Calculation Date, as applicable, so
long as the Principal Certificates are outstanding. The Pass-Through
Rate for each Class of LIBOR Certificates shall be determined 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 while the Pass-Through Rate for the Class 2A1 Certificates shall
be
determined on the basis of the Federal Funds Rate and the formula appearing
in
the footnote corresponding to the Class 2A1 Certificates. 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, with respect to the LIBOR Certificates,
or
to determine the arithmetic mean or weighted average referred to in the
definition of LIBOR or Federal Funds Rate, as applicable, all as provided for
in
this Section 4.04 and the definition of LIBOR and the Federal Funds Rate, as
applicable. The establishment of LIBOR, the Federal Funds Rate and
each Pass-Through Rate for the Principal 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.
69
Section
4.05 Supplemental
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 U.S. Bank National
Association 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 Agreements. 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. For so long as the
Swap Provider under each Interest Rate Swap Agreement is the same Person,
amounts payable under the Interest Rate Swap Agreements may be netted to
determine the aggregate Net Swap Payment Amount or Net Swap Receipt Amount
for
each Distribution Date. Funds in the Supplemental Interest Trust
Account 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
Certificateholders, to pay Accrued Certificate Interest and, if applicable,
any
Unpaid Interest Amounts as described in clause (i) of Section 4.01(a), to the
extent unpaid from other Available Funds;
(iii) to
the
Certificateholders, to pay principal as described in clause (ii)(A) and clause
(ii)(B) of Section 4.01(a), but only to the extent necessary to maintain the
Overcollateralized Amount at the Specified Overcollateralized Amount, as a
result of current or prior Realized Losses not previously reimbursed, after
giving effect to payments and distributions from other Available
Funds;
(iv) to
the
Certificateholders, to pay Unpaid Interest Amounts and Basis Risk Carry Forward
Amounts as described in clause (iii) of Section 4.01(a), to the extent unpaid
from other Available Funds (including funds on deposit in the Excess Reserve
Fund Account);
70
(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 X 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
4.05.
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 X 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 X Certificates and second, other than any Defaulted
Swap
Termination Payment, from the Upper-Tier REMIC by the Holders of the applicable
Class or Classes of Principal Certificates as and to the extent provided in
Section 8.14.
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 Class X Certificates and (to the extent remaining after payments
to the Swap Provider) then to the respective Class or Classes of Principal
Certificates. In addition, the Securities Administrator shall account
for the rights of Holders of each Class of Floating Certificates to receive
payments of Tax Basis Risk Carry Forward Amounts from the Supplemental Interest
Trust (along with Tax Basis Risk Carry Forward Amounts payable from the Excess
Reserve Fund Account) as rights in a separate limited recourse interest rate
cap
contract written by the Class X Certificateholders in favor of Holders of each
such Class.
The
Supplemental Interest Trust shall be an “outside reserve fund” for federal
income tax purposes and will not be an asset of any Trust
REMIC. Furthermore, the Holders of the Class X 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
4.06 Trust’s
Obligations under the Interest Rate Swap Agreements; Replacement and Termination
of the Interest Rate Swap Agreements.
(a) Upon
the
Securities Administrator obtaining actual knowledge of an Event of Default,
Termination Event or Additional Termination Event (as each of those terms are
defined in the applicable Interest Rate Swap Agreement) for which the Trust
has
the right to designate an Early Termination Date(as defined in the applicable
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, Termination Event or Additional
Termination Event. Upon the termination of any Interest Rate Swap
Agreement under the circumstances contemplated by this Section 4.06(a), 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 such 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. The Securities Administrator shall be responsible for
selecting any successor swap provider only at the direction and expense of
the
Depositor. To the extent such replacement interest rate swap
agreement can be entered into, any termination payments received by the
Supplemental Interest Trust in respect of the terminated interest rate swap
agreement shall be used, to the extent necessary, by the Supplemental Interest
Trust for the purpose of entering into such replacement interest rate swap
agreement.
71
(b) 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 4.05 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, any Servicer, the Trustee or any other
Person.
(c) The
Securities Administrator 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 Agreements
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
5.01 The
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.
72
The
Depositor hereby directs the Securities Administrator to register the Class
X
and Class P 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 X and Class P Certificates in the name of the NIM Trustee
or
such other name or names as the Depositor shall request, and to deliver the
Class X and Class P Certificates to the NIM Trustee, or to such other person
or
persons as the Depositor shall request.
Subject
to Section 11.02 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.
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
5.02 Certificate
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 X 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.
73
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.
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 X or Class P Certificates on the Closing
Date, (ii) the transfer of the Class X or Class P Certificates to the NIM Issuer
or the NIM Trustee or (iii) a transfer of the Class X or Class P 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.
74
Except
with respect to (i) the initial transfer of the Class X or Class P Certificates
on the Closing Date, (ii) the transfer of the Class X or Class P Certificates
to
the NIM Issuer or the NIM Trustee or (iii) a transfer of the Class X or Class
P
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.
75
During
the period the Supplemental Interest Trust is in effect, no transfer of a
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 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
Certificate. In the event that such representation is violated, such
transfer or acquisition shall be void and of no effect. 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;
76
(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
(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.
77
(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.
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.
78
(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.
Section
5.03 Mutilated,
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
5.04 Persons
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
5.05 Access
to List of Certificateholders’ Names and Addresses. If three (3)
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.
79
Section
5.06 Maintenance
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 and
the
NIM Insurer of any change in such location of any such office or
agency.
ARTICLE
VI
THE
DEPOSITOR
Section
6.01 Liabilities
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
6.02 Merger
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
6.03 Limitation
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.
80
Section
6.04 Servicing
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
6.05 Option
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
7.01 Events
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 and the NIM Insurer),
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.
81
Section
7.02 Master
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 (or P&I) Advances or Servicing Advances pursuant
to such Servicing Agreement (it being understood and agreed that if any Servicer
fails to make an Advance, the Master Servicer shall do so unless a determination
has been made that such Advance would constitute a Nonrecoverable Monthly (or
P&I) Advance or a Nonrecoverable Servicing Advance). 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 (as set forth
in
the Mortgage Loan Schedule with respect to the related Group I Mortgage Loans
and Group II Mortgage Loans, respectively) such Servicing Fee and the income
on
investments or gain related to the Collection Account.
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 (or P&I)
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 and acceptable to the NIM Insurer in its reasonable discretion, 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.
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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
7.03 Master
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
7.04 Notification
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, to the NIM Insurer
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, to the NIM Insurer 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
8.01 Duties
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.
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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.
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
8.02 [Reserved].
Section
8.03 Certain
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;
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(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;
(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;
85
(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;
(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, U.S. Bank in its capacity as Trustee
and a Custodian hereunder, Deutsche 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 Agreements on behalf of the Supplemental Interest Trust; and
(p) the
Securities Administrator is authorized and directed to execute the Interest
Rate
Cap Agreements on behalf of the Trust.
Section
8.04 Trustee
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.
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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.
Section
8.05 Trustee
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
8.06 Trustee’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:
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(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.
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
8.07 Eligibility
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
8.08 Resignation
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,
to the NIM Insurer 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 9.04 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, or shall at the request of the NIM Insurer, 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.
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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
8.09 Successor
Trustee. Any successor trustee appointed as provided in Section
8.08 shall be reasonably acceptable to the NIM Insurer and 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, the NIM Insurer 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
8.10 Merger
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.
89
Section
8.11 Appointment
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.
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
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(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, the
NIM
Insurer and the Depositor.
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
8.12 Tax
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;
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(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);
(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.
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The
Holder of the largest Percentage Interest of the Class R, Class RC and Class
RX
Certificates shall act as Tax Matters Person for the Lower-Tier REMIC and the
Middle-Tier REMIC, the Upper-Tier REMIC and the 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.
The
Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class
X
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 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 the Class X Certificateholders, the Class P 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 X 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 the 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 X Certificates to provide to the Securities
Administrator information identifying “middlemen” (as defined by the WHFIT
Regulations) related to the Class X 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.
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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 X Certificate representing, in whole or in part, beneficial ownership
of
an interest in a WHFIT, by acceptance of its interest in such Class X
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
X
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 X 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.
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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 Section 4.01(a).
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
8.13 [Reserved].
Section
8.14 Tax
Classification of the Excess Reserve Fund Account, the Interest Rate Cap
Agreements and the Interest Rate Swap Agreements. For federal
income tax purposes, the Securities Administrator shall treat the Excess Reserve
Fund Account and the Interest Rate Swap Agreements as beneficially owned by the
holder of the Class X Certificates and shall treat such portion of the Trust
Fund as a grantor trust under subpart E, Part I of subchapter J of the
Code. The Securities Administrator shall treat: (a) 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 the Class X Certificateholders in favor of each Class, and (b) the
rights that the Class 2-A-1 and Class A-5 Certificates have to receive payments
of Basis Risk Carry Forward Amounts from their respective Interest Rate Cap
Agreements as rights to receive payments under an interest rate cap contract
written by the Class X Certificateholders in favor of each such
Class. 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, and the Class X Certificates will
be
comprised of four components—a regular interest in the Class X REMIC, an
interest in the Interest Rate Swap Agreements, 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 Floating Rate Certificate to receive the related Tax Basis Risk
Carry Forward Amount for purposes of allocating the purchase price of an initial
Floating Rate Certificateholder between such right and the related Upper-Tier
Regular Interest.
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Holders
of Principal Certificates shall also be treated as having agreed to pay, on
each
Distribution Date, to the Holders of the Class X 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 X Interest as provided in the
Preliminary Statement hereof (such excess, a “Class IO Shortfall”), first
from interest and then from principal distributable on the Principal
Certificates. A Class IO Shortfall payable from interest collections
shall be allocated among such Principal Certificates based on the amount of
interest otherwise payable to such Class of Principal Certificates, and a Class
IO Shortfall payable from principal collections shall be allocated in reverse
sequential order beginning with the most subordinate Class of Principal
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 Principal Certificates in respect
of
the corresponding Upper-Tier Regular Interest and as having been paid by such
Holders to the Holders of the Class X Certificates through the Supplemental
Interest Trust.
Section
8.15 Custodial
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.
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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, the NIM Insurer 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
9.01 Duties
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, the Trustee and the NIM Insurer 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.
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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.
(b) 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.
(c) 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.
98
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
9.02 Maintenance
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, directors, 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
9.03 Representations
and Warranties of the Master Servicer. (a) The Master
Servicer hereby represents and warrants to the Depositor, the Securities
Administrator and the Trustee, for the benefit of the Certificateholders, as
of
the Closing Date that:
(i) it
is a
national banking association validly existing and in good standing under the
laws of the United States 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);
99
(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(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 (such event, the “Auction Call”), for the purchase of
all of the Mortgage Loans (and REO Properties) 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 the NIM Insurer 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,
for
the purchase of all of the Mortgage Loans (and REO Properties) unless it has
received the NIM Insurers’ prior written consent. In the event that
no NIM Insurer exists with respect to any NIM Issuer, the Depositor hereby
further represents, covenants and agrees with such 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,
for
the purchase of all of the Mortgage Loans (and 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.
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(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.
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
9.04 Master
Servicer Events of Default. Each of the following shall
constitute a “Master Servicer Event of Default”:
(a) any
failure by the Master Servicer to 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;
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(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;
(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 NIM Insurer or 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.
102
Upon
the
occurrence of a Master Servicer Event of Default, the Securities Administrator
shall (i) provide prompt written notice to the Trustee, the NIM Insurer 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.
Section
9.05 Waiver
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 and
the NIM Insurer 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
9.06 Successor
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, the NIM Insurer 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).
103
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.
At
least
fifteen (15) calendar days prior to the effective date of such appointment,
the
Trustee shall provide written notice to the Depositor and the NIM Insurer 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, to the Trustee and to the NIM
Insurer 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 and the NIM Insurer of such appointment.
Section
9.07 Compensation
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
9.08 Merger
or Consolidation. Any Person into which the Master Servicer may
be merged or consolidated, or any Person resulting from any merger, conversion,
other change in form or consolidation to which the Master Servicer shall be
a
party, or any Person succeeding to the business of the Master Servicer, shall
be
the successor to the Master Servicer hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided,
however, that the successor or resulting Person to the Master Servicer
shall (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.
104
Section
9.09 Resignation
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 and the NIM
Insurer. No such resignation shall become effective until the Trustee
shall have assumed, or a successor master servicer satisfactory to the Trustee,
the NIM Insurer 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 and the NIM Insurer.
At
least
fifteen (15) calendar days prior to the effective date of such resignation,
the
Master Servicer shall provide written notice to the Depositor and the NIM
Insurer 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
9.10 Assignment
or Delegation of Duties by the Master Servicer. Except as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any other Person to perform
any
of the duties, covenants or obligations to be performed by the Master Servicer;
provided, however, that the Master Servicer shall have the right
with the prior written consent of the Depositor and the NIM Insurer (each of
which shall not be unreasonably withheld or delayed), and upon delivery to
the
Trustee, the Depositor and the NIM Insurer 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, the Trustee and the
NIM
Insurer. 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
9.11 Limitation
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.
105
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
9.12 Indemnification; Third Party
Claims. The Master Servicer agrees to indemnify the Depositor,
the Securities Administrator, the Servicers, the Trustee and 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.
106
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.
ARTICLE
X
CONCERNING
THE SECURITIES ADMINISTRATOR
Section
10.01 Duties
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;
107
(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
(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
10.02 Certain
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 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 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 (iv) 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;
108
(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;
(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.
109
Section
10.03 Securities
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.
Section
10.04 Securities
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
10.05 Securities
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 Agreements 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.
110
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.
Section
10.06 Eligibility
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, (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 and
(iv) must be acceptable to the NIM Insurer in its reasonable
discretion. 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.
111
Section
10.07 Resignation
and Removal of the Securities Administrator. The Securities
Administrator may at any time resign by giving written notice of resignation
to
the Depositor, the Trustee, the NIM Insurer 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.
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
a result of the Securities Administrator’s inability or failure to receive, on a
timely basis, any information any other party hereto and under the applicable
Servicing Agreement needed to prepare for execution or file such form not
resulting from its own negligence, bad faith or willful misconduct, and 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, or shall at the request of the NIM Insurer, 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.
112
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
10.08 Successor
Securities Administrator. Any successor Securities Administrator
(which may be the Trustee) appointed as provided in Section 10.07 hereof shall
be reasonably acceptable to the NIM Insurer and 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.
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
10.09 Merger
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.
113
Section
10.10 Assignment
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.
ARTICLE
XI
TERMINATION
Section
11.01 Termination
upon Liquidation or Purchase of the Mortgage Loans. Subject to
Section 11.03, 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 Depositor requesting the Master Servicer to exercise its option to conduct
an Auction Call for the purchase of the Mortgage Loans and all other property
of
the Trust on a non-recourse basis with no representations or warranties of
any
nature whatsoever and the sale of all of the Property of the Trust Fund, on
or
after the Optional Termination Date (The Master Servicer shall accommodate
such
request to conduct an Auction Call at its sole discretion. If the
Master Servicer accommodates such request, the Master Servicer shall be entitled
to reimbursement for all fees and expenses incurred. The Property of
the Trust Fund 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 all of the property of
the
Trust Fund 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 X Certificateholder) 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.); 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. The “Termination Price” shall be equal to the greater
of: (1) the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan (other than in respect of 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 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, in each case plus
accrued and unpaid interest thereon at the applicable Mortgage Interest Rate
and
(iii) any Swap Termination Payment owed to the Swap Provider; and (2) the
aggregate fair market value of each Mortgage Loan and any 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 pursuant to Section 11.02, plus accrued and unpaid interest
on the Mortgage Loans at the applicable Mortgage Interest Rate.
114
The
proceeds of the purchase or sale of such assets of the Trust pursuant to the
Auction Call described in this Section 11.01 (other than, with respect to any
mortgage loan and the related property, an amount equal to the excess, if any,
of the amount in Section 11.01(2) over the sum of the amount in Section 11.01(1)
(such excess, the “Fair Market Value Excess”)) will be distributed to the
holders of the Certificates in accordance with Section 4.01. Any Fair
Market Value Excess received in connection with the purchase of the Mortgage
Loans and REO Properties will be distributed to the holders of the Class RC
Certificates.
Except
to
the extent provided above with regard to allocating any Fair Market Value Excess
to the holders of the Class RC Certificates, the proceeds of such a purchase
or
sale will be treated as a prepayment of the Mortgage Loans for purposes of
distributions to Certificateholders. Accordingly, the sale of the
Mortgage Loans and the REO Properties as a result of the exercise of the Auction
Call will result in the final distribution on the Certificates on that
Distribution Date.
Section
11.02 Final
Distribution on the Certificates. If, on any Remittance Date, the
Servicers notify the Securities Administrator that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
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 such
Section, 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, the Swap Provider and
the
Securities Administrator of the final Distribution Date and of the applicable
sale price of the Mortgage Loans and REO Properties.
A
Notice
of Final Distribution, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders 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 will be made upon presentation
and
surrender of 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 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.
115
In
the
event the Mortgage Loans (and REO Properties) and all rights and obligations
under the Servicing Agreements are 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 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.
Upon
presentation and surrender of the Certificates, 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,
in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i)
as
to each Class of Regular Certificates (except the Class X Certificates), the
Certificate Balance thereof plus for each such Class and the Class X
Certificates accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant
to
Section 4.01 and (ii) as to the Residual Certificates, the amount, if any,
which
remains on deposit in the Distribution Account 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 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 Trust Fund.
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 (6) 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. If
within one (1) year after the second notice all Certificates shall not have
been
surrendered for cancellation, the Class R Certificateholders shall be entitled
to all unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
116
Section
11.03 Additional
Termination Requirements. In the event the Auction Call is
exercised as provided in Section 11.01, the Trust Fund shall be terminated
in
accordance with the following additional requirements, unless the Trustee,
the
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
11.03 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:
(a) The
Securities Administrator on behalf of the Trustee shall sell all of the assets
of the Trust Fund 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 the proceeds of such sale in complete
liquidation of each of the Trust REMICs; and
(b) The
Securities Administrator shall attach a statement to the final federal income
tax return for each of the Trust REMICs 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 to
the
entity with the highest bid received pursuant to the Auction Call.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Amendment. 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 Sale 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.
117
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, 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, the NIM Insurer 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, the Swap Provider,
the Master Servicer and the NIM Insurer) of such amendment, stating the
provisions of the Agreement to be amended.
118
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.
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 and the Cap Provider, if such amendment materially
and adversely affects the rights or interests of the Swap Provider or the Cap
Provider, as applicable.
119
Section
12.02 Recordation
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
12.03 Governing
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.
Section
12.04 Intention
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
12.05 Notices. (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;
120
(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 4.02;
(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.
(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 2007-7, 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
Xxxxx Fargo as a Responsible Party and as a Servicer, Xxxxx Fargo Bank, National
Association, 0000 Xxx Xxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: GSAA 2007-7, or such other address as may be hereafter
furnished to the Depositor, the Securities Administrator and the Swap Provider
by Xxxxx Fargo in writing; (f) 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; (g) 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 2007-7 (or for
overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000
Attention: Client Manager - GSAA 2007-7), 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; (h) in the case of Xxxxx Fargo,
as a
Custodian, to Xxxxx Fargo Bank, National Association, 0000 00xx Xxxxxx XX,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: GSAA 2007-7, 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 Deutsche Bank as a Custodian, Deutsche Bank National Trust Company, 0000
Xxxx
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attention: Mortgage Custody
–
GS07DC, or such other address as may be hereafter furnished to the Depositor,
the Securities Administrator and the Swap Provider by Deutsche Bank in writing;
(j) 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 2007-7, 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; (k) 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; (l) in the case of the Cap Provider, to the related Cap Provider
addressed to it at the address specified in the Interest Rate Cap Agreements
or
at any other address previously furnished in writing to the Trust by the related
Cap Provider; and (m) 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.
121
Section
12.06 Severability
of Provisions. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of
this
Agreement and shall in no way affect the validity or enforceability of the
other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
Section
12.07 Limitation
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.
122
Section
12.08 Certificates
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
12.09 Waiver
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
12.10 Rights
of the Swap Provider and the Cap Provider. The Swap Provider and
the Cap 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 or the
Cap Provider, the Depositor shall furnish written notification of the substance
or a copy of each amendment to the Swap Provider or the Cap Provider, as
applicable.
Section
12.11
|
Rights
of NIM Insurer.
|
(a) The
rights of the NIM Insurer under this Agreement shall exist only so long as
either:
(i) the
notes
certain payments on which are guaranteed by the NIM Insurer remain outstanding
or
(ii) the
NIM
Insurer is owed amounts paid by it with respect to that guaranty.
(b) The
rights of the NIM Insurer under this Agreement are exercisable by the NIM
Insurer only so long as no default by the NIM Insurer under its guaranty of
certain payments under notes backed or secured by the Class X or Class P
Certificates has occurred and is continuing. If the NIM Insurer is the subject
of any insolvency proceeding, the rights of the NIM Insurer under this Agreement
will be exercisable by the NIM Insurer only so long as:
123
(i) the
obligations of the NIM Insurer under its guaranty of notes backed or secured
by
the Class X or Class P Certificates have not been disavowed and
(ii) the
Depositor, the Trustee and the Securities Administrator have received reasonable
assurances that the NIM Insurer will be able to satisfy its obligations under
its guaranty of notes backed or secured by the Class X or Class P
Certificates.
(c) The
NIM
Insurer is a third party beneficiary of this Agreement to the same extent as
if
it were a party to this Agreement and may enforce any of those rights under
this
Agreement.
(d) A
copy of
any documents of any nature required by this Agreement to be delivered to the
Trustee, the Securities Administrator, the Certificateholders or the Rating
Agencies, shall in each case at the same time also be delivered to the NIM
Insurer. Any notices required to be given to the Trustee, the
Certificateholders, the Securities Administrator or the Rating Agencies, shall
in each case at the same time also be given to the NIM Insurer. If
such document is an Opinion of Counsel, the NIM Insurer shall be an addressee
thereof or such Opinion of Counsel shall contain language permitting the NIM
Insurer to rely thereon as if the NIM Insurer were an addressee
thereof.
(e) Anything
in this Agreement that is conditioned on not resulting in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies shall also be conditioned on not resulting in the downgrading or
withdrawal of the ratings then assigned by the Rating Agencies to the notes
backed or secured by the Class X or Class P Certificates (without giving effect
to any policy or guaranty provided by the NIM Insurer).
ARTICLE
XIII
EXCHANGE
ACT REPORTING
Section
13.01 Filing
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.
124
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.
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.
125
Section
13.02 Form
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.
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
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 2007-7, by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile (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.
126
Section
13.03 Form
10-D Filings.
Within
fifteen (15) 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.
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 2007-7
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 2007-7, by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile (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.
127
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.
Section
13.04 Form
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.
128
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.
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 2007-7 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
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.
129
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
13.05 Form
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
13.06 Xxxxxxxx-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.
130
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.
Section
13.07 Report
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 until 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.
131
(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.
(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
13.08 Use
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.
* * * * * * *
132
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/ Xxxx X.
Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Vice President
U.S.
BANK NATIONAL ASSOCIATION,
solely
in its capacity as Trustee and a Custodian
and
not in its individual capacity
By:
/s/ Xxxxxxxx X'Xxxxx
Name:
Xxxxxxxx X'Xxxxx
Title:
Vice President
XXXXX
XXXXX BANK, NATIONAL
ASSOCIATION,
as Master Servicer and
Securities
Administrator
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
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
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as a Custodian
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
Associate
By:
/s/ Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Vice President
XXXXX
FARGO BANK, NATIONAL
ASSOCIATION,
as a Custodian
By:
/s/ Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
|
SCHEDULE
I
Mortgage
Loan Schedule
[On
File
with the Securities Administrator as provided by the Depositor]
Sched.
I-1
EXHIBIT
A
FORM
OF
CLASS 1A1, CLASS 1A2, CLASS 2A1, CLASS A4, CLASS A5, CLASS M1, CLASS M2, CLASS
M3, CLASS M4, CLASS M5, CLASS M6, CLASS B1 AND CLASS B2
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
|
:
|
June
1, 2007
|
First
Distribution Date
|
:
|
July
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 2007-7
Asset-Backed
Certificates, Series 2007-7
[Class
1A1][Class 1A2][Class 2A1][Class A4][Class A5]
[Class
M1][Class M2][Class M3][Class M4][Class M5][Class M6]
[Class
B1][Class B2]
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”), U.S. Bank National Association, 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 Deutsche Bank National Trust Company,
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.
* * *
A-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
|
A-4
GS
MORTGAGE SECURITIES CORP.
GSAA
Home
Equity Trust 2007-7
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
GSAA
Home Equity Trust 2007-7 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.
A-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 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 and all property acquired in respect of the Mortgage Loans 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 11.01 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
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
A-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.
A-8
EXHIBIT
B
FORM
OF
CLASS P CERTIFICATE
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
|
:
|
June
1, 2007
|
First
Distribution Date
|
:
|
July
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 2007-7
Asset-Backed
Certificates, Series 2007-7
Class
P
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”), U.S. Bank National Association, 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 Deutsche Bank National Trust Company,
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 2007-7
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
GSAA
Home Equity Trust 2007-7 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 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 and all property acquired in respect of the Mortgage Loans 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 11.01 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 R, CLASS RC AND CLASS RX 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.
|
:
|
[R][RC][RX]
|
Cut
off Date
|
:
|
June
1, 2007
|
First
Distribution Date
|
:
|
July
25, 2007
|
Initial
Certificate Balance of this
Certificate
(“Denomination”)
|
:
|
$100
|
Initial
Certificate Balance of all Certificates of this Class
|
:
|
$100
|
CUSIP
|
:
|
|
ISIN
|
:
|
C-1
GS
MORTGAGE SECURITIES CORP.
GSAA
Home
Equity Trust 2007-7
Asset
Backed Certificates, Series 2007-7
Class
[R][RC][RX]
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 [R][RC][RX]
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”), U.S. Bank National
Association, 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 Deutsche Bank National Trust Company,
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 [R][RC][RX] Certificate
at the office designated by the Securities Administrator for such
purposes.
No
transfer of a Class [R][RC][RX] 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 [R][RC][RX] Certificate shall be deemed by the acceptance
or acquisition an Ownership Interest in this Class [R][RC][RX] Certificate
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class [R][RC][RX] Certificate
are expressly subject to the following provisions: (i) each Person
holding or acquiring any Ownership Interest in this Class [R][RC][RX]
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 [R][RC][RX]
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 [R][RC][RX] 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 [R][RC][RX] 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 [R][RC][RX] Certificate, (C) not
to
cause income with respect to the Class [R][RC][RX] 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 [R][RC][RX]
Certificate or to cause the Transfer of the Ownership Interest in this Class
[R][RC][RX] 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 [R][RC][RX] 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 2007-7
Asset
Backed Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
GSAA
Home Equity Trust 2007-7 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 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 and all property acquired in respect of the Mortgage Loans 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 11.01 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 X 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.
|
:
|
X-1
|
Cut-off
Date
|
:
|
June
1, 2007
|
First
Distribution Date
|
:
|
July
25, 2007
|
Percentage
Interest of this
Certificate
(“Denomination”)
|
:
|
|
100%
|
||
CUSIP
|
:
|
|
ISIN
|
:
|
D-2
GS
MORTGAGE SECURITIES CORP.
GSAA
Home
Equity Trust 2007-7
Asset-Backed
Certificates, Series 2007-7
Class
X
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”), U.S. Bank National Association, 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 Deutsche Bank National Trust Company,
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 2007-7
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
GSAA
Home Equity Trust 2007-7 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 is less than or equal to 10% of the Cut-off Date Pool Principal
Balance, the Person or Persons 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 and all property acquired in respect of the Mortgage
Loans 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 11.01 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 June 1, 2007 (the “Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”), U.S.
Bank National Association, as trustee (in such capacity, the “Trustee”)
and as a custodian, The Bank of New York Trust Company, National
Association and Deutsche Bank National Trust Company, 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 June 1, 2007 (the
“Agreement”), among GS Mortgage Securities Corp., as depositor (the
“Depositor”), U.S. Bank National Association, as trustee (in such
capacity, the “Trustee”) and as a custodian, The Bank of New York
Trust Company, National Association and Deutsche Bank National Trust
Company, 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, 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);
4. the
related original Mortgage and evidence of its recording or a certified copy
of
the Mortgage with evidence of recording thereof;
F-1
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. an
original or copy of a title insurance policy or evidence of title;
8. to
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. 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, 33 and 34 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.
F-2
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:
|
F-3
EXHIBIT
G
FORM
OF
RESIDUAL TRANSFER AFFIDAVIT
GSAA
Home
Equity Trust 2007-7,
Asset-Backed
Certificates, Series 2007-7
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 [R][RC][RX] Certificate (the “Certificate”)
issued pursuant to the Master Servicing and Trust Agreement (the
“Agreement”), among GS Mortgage Securities Corp., as depositor (the
“Depositor”), U.S. Bank National Association, 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,
Deutsche Bank National Trust Company, as a custodian and The Bank of New York
Trust Company, 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:
¨
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.
¨
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.
¨
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.
85
Xxxxx
Xxxxxx
New
York,
New York 10004
Attention:
Xxxxx
Fargo Bank, National Association
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
Attention:
Corporate Trust Services – GSAA 2007-7
|
Re:
|
GSAA
Home Equity Trust 2007-7, Asset-Backed Certificates
Series
2007-7, 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.
85
Xxxxx
Xxxxxx
New
York,
New York 10004
Attention:
Xxxxx
Fargo Bank, National Association
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
Attention:
Corporate Trust Services – GSAA 2007-7
|
Re:
|
GSAA
Home Equity Trust 2007-7, Asset-Backed Certificates, Series 2007-7,
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 1A1, Class 1A2, Class 2A1,
Class A4, Class A5, Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class B1 or a Class B2 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 X Certificate or Class
P
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.
_______________________________________
Print
Name of Transferee
By:_____________________________________
Name:
Title:
Date:____________________________________
|
I-3
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-4
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-5
EXHIBIT
J-1
FORM
OF
BACK-UP CERTIFICATION
(Master
Servicer)
|
Re:
|
Master
Servicing and Trust Agreement, dated as of June 1, 2007 (the
“Agreement”), among GS Mortgage Securities Corp., as depositor (the
“Depositor”), U.S. Bank National Association, as trustee (in such
capacity, the “Trustee”) and as a custodian, The Bank of New York Trust
Company, National Association and Deutsche Bank National Trust Company,
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 2006 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 June 1, 2007 (the “Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”), U.S.
Bank National Association, as trustee (in such capacity, the “Trustee”)
and as a custodian, The Bank of New York Trust Company, National
Association and Deutsche Bank National Trust Company, 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.
|
|||
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
K-5
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodians
|
|
Reference
|
Criteria
|
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:
|
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 June 1, 2007 (the “Agreement”), among
GS Mortgage Securities Corp., as depositor (the “Depositor”), U.S. Bank National
Association, as trustee (in such capacity, the “Trustee”) and as a custodian,
The Bank of New York Trust Company, National Association and Deutsche Bank
National Trust Company, 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, 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
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 – GS07DC
|
RE: Master
Servicing and Trust Agreement, dated as of June 1, 2007 (the “Agreement”), among
GS Mortgage Securities Corp., as depositor (the “Depositor”), U.S. Bank National
Association, as trustee (in such capacity, the “Trustee”) and as a custodian,
The Bank of New York Trust Company, National Association and Deutsche Bank
National Trust Company, each as a custodian, and Xxxxx Fargo Bank, National
Association, as master servicer (in such capacity, the “Master Servicer”), as
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:
|
U.S.
Bank National Assoc.
0000
Xxxxxx Xxxxx 000
XX-XX-XXXX
Xx.
Xxxx, XX 00000
|
Attention:
FAX: |
Document
Custody Services
Receiving
Unit
(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: ,
Mortgagor’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-3-1
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-3-2
EXHIBIT
L-4
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx
Fargo Bank, National Association
1000
00xx Xxxxxx XX,
Xxxxxxxxxxx
Minnesota
55414
Attention: GSAA
2007-7
RE: Master
Servicing and Trust Agreement, dated as of June 1, 2007 (the
“Agreement”), among GS Mortgage Securities Corp., as depositor (the
“Depositor”), U.S. Bank National Association, as trustee (in such
capacity, the “Trustee”) and as a custodian, The Bank of New York Trust
Company, National Association and Deutsche Bank National Trust Company, 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
________3. Loan
being substituted
L-4-1
________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-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
|
•Significant
Obligor
|
Depositor
|
•Credit
Enhancer (10% or more)
|
Depositor
|
•Derivative
Counterparty
|
Depositor
|
•Custodian
|
Custodian
|
M-1
FORM
8-K DISCLOSURE INFORMATION
|
|
Item
on Form 8-K
|
Responsible
Party
|
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
|
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.
|
|
Item
6.04- Failure to Make a Required Distribution
|
Depositor
|
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
|
M-2
FORM
8-K DISCLOSURE INFORMATION
|
|
Item
on Form 8-K
|
Responsible
Party
|
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
|
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
|
N-1
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
Item
on Form 10-D
|
Responsible
Party
|
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
|
* 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-2
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
|
Depositor
|
Significant
Obligor Financial Information*
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
• Determining
applicable disclosure threshold
|
Depositor
|
• Requesting
required financial information (including any required accountants’
consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
• Determining
current maximum probable exposure
|
Depositor
|
• Determining
current significance percentage
|
Depositor
|
• Requesting
required financial information (including any required accountants’
consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
O-1
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
Item
on Form 10-K
|
Responsible
Party
|
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
|
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
and
that are material to a Certificateholder’s understanding of the
Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
O-2
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
Item
on Form 10-K
|
Responsible
Party
|
• 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 May 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 March 14, 2006, Accession
No.
0000905148-06-00297]
Q-1
EXHIBIT
R
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 May 14, 2006, Accession
No.
0000905148-06-001326]
R-1
EXHIBIT
S
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 May 14, 2006, Accession
No. 0000905148-06-001326]
S-1
EXHIBIT
T
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]
T-1
EXHIBIT
U
Form
of
LIBOR Interest Rate Swap Agreement
[On
File
with the Depositor]
U-1
EXHIBIT
V
Form
of
Federal Funds Interest Rate Swap Agreement
[On
File
with the Depositor]
V-1
EXHIBIT
W
Form
of
Class 2A1 Interest Rate Cap Agreement
[On
File
with the Depositor]
W-1
EXHIBIT
X
Form
of
Class 2A1 Interest Rate Cap Agreement
[On
File
with the Depositor]
X-1