EXHIBIT 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
AVELO MORTGAGE, L.L.C.,
Servicer,
NEW CENTURY MORTGAGE CORPORATION,
Servicer,
NC CAPITAL CORPORATION,
Responsible Party
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Custodian,
LASALLE BANK NATIONAL ASSOCIATION,
Trustee,
and
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator
-------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2007
-------------------------------
GSAMP TRUST 2007-NC1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-NC1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions......................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.....................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..................
Section 2.03 Representations, Warranties and Covenants of the Responsible
Party, the Servicers and the Custodian.......................
Section 2.04 Execution and Delivery of Certificates...........................
Section 2.05 REMIC Matters....................................................
Section 2.06 Representations and Warranties of the Depositor..................
Section 2.07 Enforcement of Obligations for Breach of Mortgage Loan
Representations..............................................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans..............................
Section 3.02 Subservicing Agreements between a Servicer and Subservicers......
Section 3.03 Successor Subservicers...........................................
Section 3.04 Liability of the Servicer........................................
Section 3.05 No Contractual Relationship between Subservicers, the
Trustee and the Master Servicer..............................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer..............................................
Section 3.07 Collection of Certain Mortgage Loan Payments.....................
Section 3.08 Subservicing Accounts............................................
Section 3.09 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.....................................................
Section 3.10 Collection Account...............................................
Section 3.11 Withdrawals from the Collection Account..........................
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account.........................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions and
Fidelity Coverage............................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements........
Section 3.15 Realization upon Defaulted Mortgage Loans........................
Section 3.16 Release of Mortgage Files........................................
Section 3.17 Title, Conservation and Disposition of REO Property..............
Section 3.18 Notification of Adjustments......................................
Section 3.19 Access to Certain Documentation and Information Regarding
the Mortgage Loans...........................................
Section 3.20 Documents, Records and Funds in Possession of the Servicers
to Be Held for the Securities Administrator for the
Benefit of the Trustee.......................................
Section 3.21 Servicing Compensation...........................................
Section 3.22 Annual Statement as to Compliance................................
Section 3.23 Annual Reports on Assessment of Compliance with Servicing
Criteria; Annual Independent Public Accountants'
Attestation Report...........................................
Section 3.24 Master Servicer to Act as Servicer...............................
Section 3.25 Compensating Interest............................................
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act.........................
Section 3.27 Excess Reserve Fund Account; Distribution Account................
Section 3.28 Optional Purchase of Delinquent Mortgage Loans...................
Section 3.29 Transfer of Servicing of the Mortgage Loans......................
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances.........................................................
Section 4.02 Priorities of Distribution.......................................
Section 4.03 Monthly Statements to Certificateholders.........................
Section 4.04 Certain Matters Relating to the Determination of LIBOR...........
Section 4.05 Allocation of Applied Realized Loss Amounts......................
Section 4.06 Supplemental Interest Trust......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.................................................
Section 5.02 Certificate Register; Registration of Transfer and Exchange
of Certificates..............................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates................
Section 5.04 Persons Deemed Owners............................................
Section 5.05 Access to List of Certificateholders' Names and Addresses........
Section 5.06 Maintenance of Office or Agency..................................
ARTICLE VI
THE DEPOSITOR AND THE SERVICERS
Section 6.01 Respective Liabilities of the Depositor and the Servicers........
Section 6.02 Merger or Consolidation of the Depositor or a Servicer...........
Section 6.03 Limitation on Liability of the Depositor, the Servicers and
Others.......................................................
Section 6.04 Limitation on Resignation of a Servicer..........................
Section 6.05 Additional Indemnification by the Servicers; Third Party
Claims.......................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default................................................
Section 7.02 Master Servicer to Act; Appointment of Successor Servicer........
Section 7.03 Notification to Certificateholders...............................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 8.01 Duties of the Trustee............................................
Section 8.02 Certain Matters Affecting the Custodian and the Trustee..........
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans............
Section 8.04 Trustee May Own Certificates.....................................
Section 8.05 Trustee's Fees and Expenses and Indemnification..................
Section 8.06 Eligibility Requirements for the Trustee.........................
Section 8.07 Resignation and Removal of the Trustee...........................
Section 8.08 Successor Trustee................................................
Section 8.09 Merger or Consolidation of the Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee....................
Section 8.11 Tax Matters......................................................
Section 8.12 Periodic Filings.................................................
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts, Basis
Risk Carry Forward Amounts, the Supplemental Interest
Trust, the Interest Rate Swap Agreement and the Interest
Rate Cap Agreement...........................................
Section 8.14 Custodial Responsibilities.......................................
Section 8.15 Limitations on Custodial Responsibilities........................
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's
Obligations................................................
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance..................................................
Section 9.03 Representations and Warranties of the Master Servicer..........
Section 9.04 Master Servicer Events of Default..............................
Section 9.05 Waiver of Default..............................................
Section 9.06 Successor to the Master Servicer...............................
Section 9.07 Compensation of the Master Servicer............................
Section 9.08 Merger or Consolidation........................................
Section 9.09 Resignation of the Master Servicer.............................
Section 9.10 Assignment or Delegation of Duties by the Master Servicer......
Section 9.11 Limitation on Liability of the Master Servicer.................
Section 9.12 Indemnification; Third Party Claims............................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator.............................
Section 10.02 Certain Matters Affecting the Securities Administrator.........
Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans.............................................
Section 10.04 Securities Administrator May Own Certificates..................
Section 10.05 Securities Administrator's Fees and Expenses...................
Section 10.06 Eligibility Requirements for Securities Administrator..........
Section 10.07 Resignation and Removal of Securities Administrator............
Section 10.08 Successor Securities Administrator.............................
Section 10.09 Merger or Consolidation of Securities Administrator............
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator..............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans......................................................
Section 11.02 Final Distribution on the Certificates.........................
Section 11.03 Additional Termination Requirements............................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment......................................................
Section 12.02 Recordation of Agreement; Counterparts.........................
Section 12.03 Governing Law..................................................
Section 12.04 Intention of Parties...........................................
Section 12.05 Notices........................................................
Section 12.06 Severability of Provisions.....................................
Section 12.07 Assignment; Sales; Advance Facilities..........................
Section 12.08 Limitation on Rights of Certificateholders.....................
Section 12.09 Inspection and Audit Rights....................................
Section 12.10 Certificates Nonassessable and Fully Paid......................
Section 12.11 Waiver of Jury Trial...........................................
Section 12.12 Limitation of Damages..........................................
Section 12.13 Rights of Third Parties........................................
Section 12.14 No Solicitation................................................
Section 12.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness.............................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of the Responsible Party as to
the Individual Mortgage Loans
Schedule III Representations and Warranties of the Responsible Party
Schedule IV Representations and Warranties of Avelo Mortgage, L.L.C., as
Servicer
Schedule V Representations and Warranties of New Century Mortgage
Corporation, as Servicer
Schedule VI Representations and Warranties of Deutsche Bank National Trust
Company, as Custodian
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C [Reserved]
Exhibit D-1 Form of Class R Certificate
Exhibit D-2 Form of Class RC Certificate
Exhibit D-3 Form of Class RX Certificate
Exhibit E Form of Class X Certificate
Exhibit F Form of Initial Certification of the Custodian
Exhibit G Form of Document Certification and Exception Report of the
Custodian
Exhibit H Form of Residual Transfer Affidavit
Exhibit I Form of Transferor Certificate
Exhibit J Form of Rule 144A Letter
Exhibit K Form of Investment Letter (Non-Rule 144A)
Exhibit L Form of Request for Release
Exhibit M Contents of Each Mortgage File
Exhibit N [Reserved]
Exhibit O Form of Certification to be Provided with Form 10-K
Exhibit P Form of Securities Administrator Certification to be Provided to
Depositor
Exhibit Q-1 Form of Servicer Certification to be Provided to Depositor
Exhibit Q-2 Form of Subservicer Certification to be Provided to Depositor
Exhibit Q-3 Form of Master Servicer Certification to be Provided to Depositor
Exhibit R Form of Power of Attorney
Exhibit S Representations and Warranties Agreement
Exhibit T Servicing Criteria
Exhibit U Additional Form 10-D Disclosure
Exhibit V Additional Form 10-K Disclosure
Exhibit W Form 8-K Disclosure Information
Exhibit X Interest Rate Swap Agreement and Interest Rate Cap Agreement
Exhibit Y Form of Servicer Remittance Report
Exhibit Z Form of Monthly Defaulted Loan Report
Exhibit AA Form of Realized Loss Report
THIS POOLING AND SERVICING AGREEMENT, dated as of February 1,
2007, among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor"), NEW CENTURY MORTGAGE CORPORATION, a California corporation, as a
servicer ("New Century"), NC CAPITAL CORPORATION, a California corporation, as
responsible party (the "Responsible Party"), AVELO MORTGAGE, L.L.C., a Delaware
limited liability company, as a servicer ("Avelo," and together with New
Century, the "Servicers"), DEUTSCHE BANK NATIONAL TRUST COMPANY, a national
banking association, as custodian (the "Custodian"), LASALLE BANK NATIONAL
ASSOCIATION, as trustee (the "Trustee") and XXXXX FARGO BANK, N.A., as
securities administrator (in such capacity, the "Securities Administrator") and
as master servicer (in such capacity, the "Master Servicer").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator shall elect that five segregated
asset pools within the Trust Fund (exclusive of (i) the Prepayment Premiums,
(ii) the Interest Rate Swap Agreement and the Interest Rate Cap Agreement, (iii)
the Supplemental Interest Trust, (iv) the Excess Reserve Fund Account and (v)
the right of the LIBOR Certificates to receive Basis Risk Carry Forward Amounts
and, without duplication, Upper-Tier Carry Forward Amounts and the obligation to
pay Class IO Shortfalls) be treated for federal income tax purposes as
comprising five REMICs (each, a "Trust REMIC" or, in the alternative,
Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the Lower-Tier REMIC, the Upper-Tier
REMIC and the Class X REMIC, respectively). The Class X Interest, Class IO
Interest and each Class of LIBOR Certificates (other than the right of each
Class of LIBOR Certificates to receive (i) Basis Risk Carry Forward Amounts and,
without duplication, Upper-Tier Carry Forward Amounts and (ii) the obligation to
pay Class IO Shortfalls) represents ownership of a regular interest in a REMIC
for purposes of the REMIC Provisions.
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 Class RC Certificates represent ownership of the sole class of residual
interest in Pooling-Tier REMIC-1 for purposes of the REMIC Provisions. The Class
R Certificates represent ownership of the sole class of residual interest in
each of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the Upper-Tier REMIC for
purposes of the REMIC Provisions. The Start-up Day for each Trust REMIC is the
Closing Date. The latest possible maturity date for each regular interest is the
latest date referenced in Section 2.05.
The Class X REMIC shall hold as assets the Class UT-X Interest,
the Class UT-IO Interest and the Class UT-3 Interest as set out below. The
Upper-Tier REMIC shall hold as assets the several classes of uncertificated
Lower-Tier Regular Interests, set out below. The Lower-Tier REMIC shall hold as
assets the several classes of uncertificated Pooling-Tier REMIC-2 Regular
Interests. Pooling-Tier REMIC-2 shall hold as assets the several classes of
uncertificated Pooling-Tier REMIC-1 Regular Interests. Pooling-Tier REMIC-1
shall hold as assets the assets of the Trust Fund (exclusive of (i) the
Prepayment Premiums, (ii) the Interest Rate Swap Agreement and the Interest Rate
Cap Agreement, (iii) the Supplemental Interest Trust, (iv) the Excess Reserve
Fund Account and (v) the right of the LIBOR Certificates to receive Basis Risk
Carry Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts
and the obligation to pay Class IO Shortfalls). Each such Lower Tier Regular
Interest is hereby designated as a regular interest in the Lower Tier REMIC. The
Class LT-A-1, Class LT-A-2A, Class LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class
LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6,
Class LT-M-7, Class LT-M-8, Class LT-M-9, Class LT-B-1 and Class LT-B-2
Interests are hereby designated the LT-Accretion Directed Classes (the
"LT-Accretion Directed Classes").
The Class X REMIC shall hold as assets the Class UT-X Interest,
the Class UT-IO Interest and the Class UT-3 Interest issued by the Upper-Tier
REMIC, the Class X Interest and the Class IO Interest shall represent the
regular interests issued by the Class X REMIC and the Class RX Interest shall
represent the sole class residual interest in the Class X REMIC. The Class X
Interest and the Class IO Interest shall be represented by the Class X
Certificates.
For federal income tax purposes, each Class of LIBOR
Certificates, the Class X Certificates, and the Class P Certificates represent
beneficial ownership of portions of the Trust Fund, which shall be treated as a
grantor trust as more fully described in Section 8.11.
Pooling-Tier REMIC-1
Pooling-Tier REMIC-1 shall issue the following interests in
Pooling-Tier REMIC-1, and each such interest is hereby designated as a regular
interest in the Pooling-Tier REMIC-1. Pooling-Tier REMIC-1 Interests with an "I"
in their designation shall relate to Group I Mortgage Loans and Pooling Tier
REMIC-1 Interests with a "II" in their designation shall relate to Group II
Mortgage Loans. Pooling-Tier REMIC-1 shall also issue the Class RC Certificates.
The Class RC Certificates are hereby designated as the sole class of residual
interest in Pooling-Tier REMIC-1. The Class RC Certificates shall have a $100
Class Certificate Balance and shall have no interest rate.
Initial Pooling-Tier
Pooling-Tier Pooling-Tier REMIC-1 REMIC-1 Principal
REMIC-1 Interest Interest Rate Amount
---------------- -------------------- --------------------
Class PT1-I-1 (1) $141,491,020.83
Class PT1-I-2A (2) $ 3,363,556.17
Class PT1-I-2B (3) $ 3,363,556.17
Class PT1-I-3A (2) $ 4,113,020.48
Class PT1-I-3B (3) $ 4,113,020.48
Class PT1-I-4A (2) $ 4,855,334.62
Class PT1-I-4B (3) $ 4,855,334.62
Class PT1-I-5A (2) $ 5,584,036.38
Class PT1-I-5B (3) $ 5,584,036.38
Class PT1-I-6A (2) $ 6,292,469.44
Class PT1-I-6B (3) $ 6,292,469.44
Class PT1-I-7A (2) $ 6,973,665.62
Class PT1-I-7B (3) $ 6,973,665.62
Class PT1-I-8A (2) $ 7,621,059.76
Class PT1-I-8B (3) $ 7,621,059.76
Class PT1-I-9A (2) $ 8,222,894.20
Class PT1-I-9B (3) $ 8,222,894.20
Class PT1-I-10A (2) $ 8,745,957.46
Class PT1-I-10B (3) $ 8,745,957.46
Class PT1-I-11A (2) $ 8,946,306.04
Class PT1-I-11B (3) $ 8,946,306.04
Class PT1-I-12A (2) $ 8,768,029.57
Class PT1-I-12B (3) $ 8,768,029.57
Class PT1-I-13A (2) $ 8,357,842.52
Class PT1-I-13B (3) $ 8,357,842.52
Class PT1-I-14A (2) $ 7,967,007.04
Class PT1-I-14B (3) $ 7,967,007.04
Class PT1-I-15A (2) $ 7,594,603.42
Class PT1-I-15B (3) $ 7,594,603.42
Class PT1-I-16A (2) $ 7,239,756.63
Class PT1-I-16B (3) $ 7,239,756.63
Class PT1-I-17A (2) $ 6,901,633.29
Class PT1-I-17B (3) $ 6,901,633.29
Class PT1-I-18A (2) $ 6,579,439.31
Class PT1-I-18B (3) $ 6,579,439.31
Class PT1-I-19A (2) $ 6,275,019.89
Class PT1-I-19B (3) $ 6,275,019.89
Class PT1-I-20A (2) $ 5,982,227.27
Class PT1-I-20B (3) $ 5,982,227.27
Class PT1-I-21A (2) $ 5,751,183.20
Class PT1-I-21B (3) $ 5,751,183.20
Class PT1-I-22A (2) $ 5,491,646.07
Class PT1-I-22B (3) $ 5,491,646.07
Class PT1-I-23A (2) $ 7,749,058.80
Class PT1-I-23B (3) $ 7,749,058.80
Class PT1-I-24A (2) $ 10,337,768.32
Class PT1-I-24B (3) $ 10,337,768.32
Class PT1-I-25A (2) $ 11,026,837.84
Class PT1-I-25B (3) $ 11,026,837.84
Class PT1-I-26A (2) $ 7,838,206.66
Class PT1-I-26B (3) $ 7,838,206.66
Class PT1-I-27A (2) $ 2,318,715.98
Class PT1-I-27B (3) $ 2,318,715.98
Class PT1-I-28A (2) $ 3,485,059.05
Class PT1-I-28B (3) $ 3,485,059.05
Class PT1-I-29A (2) $ 3,292,819.37
Class PT1-I-29B (3) $ 3,292,819.37
Class PT1-I-30A (2) $ 3,110,788.57
Class PT1-I-30B (3) $ 3,110,788.57
Class PT1-I-31A (2) $ 2,939,683.42
Class PT1-I-31B (3) $ 2,939,683.42
Class PT1-I-32A (2) $ 2,778,743.31
Class PT1-I-32B (3) $ 2,778,743.31
Class PT1-I-33A (2) $ 2,626,883.13
Class PT1-I-33B (3) $ 2,626,883.13
Class PT1-I-34A (2) $ 2,483,604.38
Class PT1-I-34B (3) $ 2,483,604.38
Class PT1-I-35A (2) $ 2,348,206.94
Class PT1-I-35B (3) $ 2,348,206.94
Class PT1-I-36A (2) $ 2,220,527.71
Class PT1-I-36B (3) $ 2,220,527.71
Class PT1-I-37A (2) $ 2,100,075.61
Class PT1-I-37B (3) $ 2,100,075.61
Class PT1-I-38A (2) $ 1,986,457.68
Class PT1-I-38B (3) $ 1,986,457.68
Class PT1-I-39A (2) $ 1,879,200.73
Class PT1-I-39B (3) $ 1,879,200.73
Class PT1-I-40A (2) $ 1,777,948.02
Class PT1-I-40B (3) $ 1,777,948.02
Class PT1-I-41A (2) $ 1,682,279.20
Class PT1-I-41B (3) $ 1,682,279.20
Class PT1-I-42A (2) $ 1,591,993.91
Class PT1-I-42B (3) $ 1,591,993.91
Class PT1-I-43A (2) $ 1,506,744.59
Class PT1-I-43B (3) $ 1,506,744.59
Class PT1-I-44A (2) $ 1,426,256.15
Class PT1-I-44B (3) $ 1,426,256.15
Class PT1-I-45A (2) $ 1,350,233.42
Class PT1-I-45B (3) $ 1,350,233.42
Class PT1-I-46A (2) $ 1,278,423.31
Class PT1-I-46B (3) $ 1,278,423.31
Class PT1-I-47A (2) $ 1,210,580.54
Class PT1-I-47B (3) $ 1,210,580.54
Class PT1-I-48A (2) $ 1,146,487.24
Class PT1-I-48B (3) $ 1,146,487.24
Class PT1-I-49A (2) $ 1,112,216.85
Class PT1-I-49B (3) $ 1,112,216.85
Class PT1-I-50A (2) $ 1,090,877.09
Class PT1-I-50B (3) $ 1,090,877.09
Class PT1-I-51A (2) $ 1,033,522.46
Class PT1-I-51B (3) $ 1,033,522.46
Class PT1-I-52A (2) $ 979,312.00
Class PT1-I-52B (3) $ 979,312.00
Class PT1-I-53A (2) $ 928,067.70
Class PT1-I-53B (3) $ 928,067.70
Class PT1-I-54A (2) $ 879,621.93
Class PT1-I-54B (3) $ 879,621.93
Class PT1-I-55A (2) $ 833,818.17
Class PT1-I-55B (3) $ 833,818.17
Class PT1-I-56A (2) $ 790,504.93
Class PT1-I-56B (3) $ 790,504.93
Class PT1-I-57A (2) $ 749,563.29
Class PT1-I-57B (3) $ 749,563.29
Class PT1-I-58A (2) $ 711,086.85
Class PT1-I-58B (3) $ 711,086.85
Class PT1-I-59A (2) $ 675,176.34
Class PT1-I-59B (3) $ 675,176.34
Class PT1-I-60A (2) $ 640,502.93
Class PT1-I-60B (3) $ 640,502.93
Class PT1-I-61A (2) $ 11,239,342.07
Class PT1-I-61B (3) $ 11,239,342.07
Class PT1-II-1 (4) $266,646,378.49
Class PT1-II-2A (5) $ 6,338,772.83
Class PT1-II-2B (6) $ 6,338,772.83
Class PT1-II-3A (5) $ 7,751,172.02
Class PT1-II-3B (6) $ 7,751,172.02
Class PT1-II-4A (5) $ 9,150,096.38
Class PT1-II-4B (6) $ 9,150,096.38
Class PT1-II-5A (5) $ 10,523,367.62
Class PT1-II-5B (6) $ 10,523,367.62
Class PT1-II-6A (5) $ 11,858,441.56
Class PT1-II-6B (6) $ 11,858,441.56
Class PT1-II-7A (5) $ 13,142,186.38
Class PT1-II-7B (6) $ 13,142,186.38
Class PT1-II-8A (5) $ 14,362,229.74
Class PT1-II-8B (6) $ 14,362,229.74
Class PT1-II-9A (5) $ 15,496,413.80
Class PT1-II-9B (6) $ 15,496,413.80
Class PT1-II-10A (5) $ 16,482,150.04
Class PT1-II-10B (6) $ 16,482,150.04
Class PT1-II-11A (5) $ 16,859,715.96
Class PT1-II-11B (6) $ 16,859,715.96
Class PT1-II-12A (5) $ 16,523,745.93
Class PT1-II-12B (6) $ 16,523,745.93
Class PT1-II-13A (5) $ 15,750,729.98
Class PT1-II-13B (6) $ 15,750,729.98
Class PT1-II-14A (5) $ 15,014,182.96
Class PT1-II-14B (6) $ 15,014,182.96
Class PT1-II-15A (5) $ 14,312,371.58
Class PT1-II-15B (6) $ 14,312,371.58
Class PT1-II-16A (5) $ 13,643,646.87
Class PT1-II-16B (6) $ 13,643,646.87
Class PT1-II-17A (5) $ 13,006,438.21
Class PT1-II-17B (6) $ 13,006,438.21
Class PT1-II-18A (5) $ 12,399,249.19
Class PT1-II-18B (6) $ 12,399,249.19
Class PT1-II-19A (5) $ 11,825,557.11
Class PT1-II-19B (6) $ 11,825,557.11
Class PT1-II-20A (5) $ 11,273,776.23
Class PT1-II-20B (6) $ 11,273,776.23
Class PT1-II-21A (5) $ 10,838,363.30
Class PT1-II-21B (6) $ 10,838,363.30
Class PT1-II-22A (5) $ 10,349,253.93
Class PT1-II-22B (6) $ 10,349,253.93
Class PT1-II-23A (5) $ 14,603,449.70
Class PT1-II-23B (6) $ 14,603,449.70
Class PT1-II-24A (5) $ 19,481,989.18
Class PT1-II-24B (6) $ 19,481,989.18
Class PT1-II-25A (5) $ 20,780,571.66
Class PT1-II-25B (6) $ 20,780,571.66
Class PT1-II-26A (5) $ 14,771,452.84
Class PT1-II-26B (6) $ 14,771,452.84
Class PT1-II-27A (5) $ 4,369,724.52
Class PT1-II-27B (6) $ 4,369,724.52
Class PT1-II-28A (5) $ 6,567,750.45
Class PT1-II-28B (6) $ 6,567,750.45
Class PT1-II-29A (5) $ 6,205,466.13
Class PT1-II-29B (6) $ 6,205,466.13
Class PT1-II-30A (5) $ 5,862,420.93
Class PT1-II-30B (6) $ 5,862,420.93
Class PT1-II-31A (5) $ 5,539,965.58
Class PT1-II-31B (6) $ 5,539,965.58
Class PT1-II-32A (5) $ 5,236,666.69
Class PT1-II-32B (6) $ 5,236,666.69
Class PT1-II-33A (5) $ 4,950,479.37
Class PT1-II-33B (6) $ 4,950,479.37
Class PT1-II-34A (5) $ 4,680,464.12
Class PT1-II-34B (6) $ 4,680,464.12
Class PT1-II-35A (5) $ 4,425,301.56
Class PT1-II-35B (6) $ 4,425,301.56
Class PT1-II-36A (5) $ 4,184,684.29
Class PT1-II-36B (6) $ 4,184,684.29
Class PT1-II-37A (5) $ 3,957,686.89
Class PT1-II-37B (6) $ 3,957,686.89
Class PT1-II-38A (5) $ 3,743,568.82
Class PT1-II-38B (6) $ 3,743,568.82
Class PT1-II-39A (5) $ 3,541,438.27
Class PT1-II-39B (6) $ 3,541,438.27
Class PT1-II-40A (5) $ 3,350,622.98
Class PT1-II-40B (6) $ 3,350,622.98
Class PT1-II-41A (5) $ 3,170,330.80
Class PT1-II-41B (6) $ 3,170,330.80
Class PT1-II-42A (5) $ 3,000,184.09
Class PT1-II-42B (6) $ 3,000,184.09
Class PT1-II-43A (5) $ 2,839,527.91
Class PT1-II-43B (6) $ 2,839,527.91
Class PT1-II-44A (5) $ 2,687,843.85
Class PT1-II-44B (6) $ 2,687,843.85
Class PT1-II-45A (5) $ 2,544,575.58
Class PT1-II-45B (6) $ 2,544,575.58
Class PT1-II-46A (5) $ 2,409,246.19
Class PT1-II-46B (6) $ 2,409,246.19
Class PT1-II-47A (5) $ 2,281,393.46
Class PT1-II-47B (6) $ 2,281,393.46
Class PT1-II-48A (5) $ 2,160,606.76
Class PT1-II-48B (6) $ 2,160,606.76
Class PT1-II-49A (5) $ 2,096,022.65
Class PT1-II-49B (6) $ 2,096,022.65
Class PT1-II-50A (5) $ 2,055,806.91
Class PT1-II-50B (6) $ 2,055,806.91
Class PT1-II-51A (5) $ 1,947,719.54
Class PT1-II-51B (6) $ 1,947,719.54
Class PT1-II-52A (5) $ 1,845,557.50
Class PT1-II-52B (6) $ 1,845,557.50
Class PT1-II-53A (5) $ 1,748,985.30
Class PT1-II-53B (6) $ 1,748,985.30
Class PT1-II-54A (5) $ 1,657,687.07
Class PT1-II-54B (6) $ 1,657,687.07
Class PT1-II-55A (5) $ 1,571,367.83
Class PT1-II-55B (6) $ 1,571,367.83
Class PT1-II-56A (5) $ 1,489,742.07
Class PT1-II-56B (6) $ 1,489,742.07
Class PT1-II-57A (5) $ 1,412,585.71
Class PT1-II-57B (6) $ 1,412,585.71
Class PT1-II-58A (5) $ 1,340,075.15
Class PT1-II-58B (6) $ 1,340,075.15
Class PT1-II-59A (5) $ 1,272,400.16
Class PT1-II-59B (6) $ 1,272,400.16
Class PT1-II-60A (5) $ 1,207,056.57
Class PT1-II-60B (6) $ 1,207,056.57
Class PT1-II-61A (5) $ 21,181,045.43
Class PT1-II-61B (6) $ 21,181,045.43
Class PT1-R (7) $ 100
---------------
(1) For any Distribution Date (and the related Interest Accrual Period),
this Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per
annum rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the
Pooling-Tier REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group I WAC Rate, subject
to a maximum rate equal to 10.38%.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group I WAC Rate over (B) 10.38%.
(4) For any Distribution Date (and the related Interest Accrual Period),
this Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per
annum rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the
Pooling-Tier REMIC-1 Loan Group II WAC Rate.
(5) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group II WAC Rate, subject
to a maximum rate equal to 10.38%.
(6) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group II WAC Rate over (B) 10.38%.
(7) The Class PT1-R Interest shall not bear interest.
On each Distribution Date, the Securities Administrator shall
first pay from the Trust Fund and charge as an expense of Pooling-Tier REMIC-1
all expenses of the Trust for such Distribution Date. Such expense, other than
Servicing Fees and Trustee Fees, shall be allocated in the same manner as
Realized Losses.
On each Distribution Date, the interest distributable in respect
of the Mortgage Loans from the related Loan Group for such Distribution Date
shall be deemed to be distributed to the Pooling-Tier REMIC-1 Regular Interests
at the rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class RC Certificates (in respect of the Class PT1-R Interest)
pursuant to Section 4.02(a)(iii) until its Class Certificate Balance is reduced
to zero, then to the outstanding Pooling-Tier REMIC-1 Regular Interest relating
to Group I Mortgage Loans with the lowest numerical denomination until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling-Tier REMIC-1 Regular Interests relating
to Group I Mortgage Loans with the same numerical denomination, such Realized
Losses and payments of principal shall be allocated pro rata between such
Pooling-Tier REMIC-1 Regular Interests, until the Pooling-Tier REMIC-1 Principal
Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-1 Regular Interest relating to
Group II Mortgage Loans with the lowest numerical denomination until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling-Tier REMIC-1 Regular Interests relating
to Group II Mortgage Loans with the same numerical denomination, such Realized
Losses and payments of principal shall be allocated pro rata between such
Pooling-Tier REMIC-1 Regular Interests, until the Pooling-Tier REMIC-1 Principal
Amount of such interest is reduced to zero.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
Pooling-Tier REMIC-2 Interests with an "I" in their designation shall relate to
Group I Mortgage Loans and Pooling Tier REMIC-2 Interests with a "II" in their
designation shall relate to Group II Mortgage Loans. The Class PT2-R Interest is
hereby designated as the sole class of residual interest in Pooling-Tier REMIC-2
and shall be represented by the Class R Certificates.
Pooling-Tier Corresponding Corresponding Corresponding
REMIC-2 Pooling-Tier Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier Interest REMIC-2 Initial REMIC-2 IO REMIC-1 Regular Crossover
REMIC-2 Interest Rate Principal Amount Interest Interest Distribution Date
------------------ ------------ ---------------- ------------------ ---------------- -----------------
Class PT2-I-1 (1) $ 141,490,970.83 N/A N/A N/A
Class PT2-I-2A (2) $ 3,363,556.17 Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ 3,363,556.17 N/A N/A N/A
Class PT2-I-3A (2) $ 4,113,020.48 Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ 4,113,020.48 N/A N/A N/A
Class PT2-I-4A (2) $ 4,855,334.62 Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ 4,855,334.62 N/A N/A N/A
Class PT2-I-5A (2) $ 5,584,036.38 Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ 5,584,036.38 N/A N/A N/A
Class PT2-I-6A (2) $ 6,292,469.44 Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ 6,292,469.44 N/A N/A N/A
Class PT2-I-7A (2) $ 6,973,665.62 Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ 6,973,665.62 N/A N/A N/A
Class PT2-I-8A (2) $ 7,621,059.76 Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $ 7,621,059.76 N/A N/A N/A
Class PT2-I-9A (2) $ 8,222,894.20 Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $ 8,222,894.20 N/A N/A N/A
Class PT2-I-10A (2) $ 8,745,957.46 Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ 8,745,957.46 N/A N/A N/A
Class PT2-I-11A (2) $ 8,946,306.04 Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ 8,946,306.04 N/A N/A N/A
Class PT2-I-12A (2) $ 8,768,029.57 Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ 8,768,029.57 N/A N/A N/A
Class PT2-I-13A (2) $ 8,357,842.52 Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ 8,357,842.52 N/A N/A N/A
Class PT2-I-14A (2) $ 7,967,007.04 Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ 7,967,007.04 N/A N/A N/A
Class PT2-I-15A (2) $ 7,594,603.42 Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ 7,594,603.42 N/A N/A N/A
Class PT2-I-16A (2) $ 7,239,756.63 Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ 7,239,756.63 N/A N/A N/A
Class PT2-I-17A (2) $ 6,901,633.29 Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ 6,901,633.29 N/A N/A N/A
Class PT2-I-18A (2) $ 6,579,439.31 Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ 6,579,439.31 N/A N/A N/A
Class PT2-I-19A (2) $ 6,275,019.89 Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ 6,275,019.89 N/A N/A N/A
Class PT2-I-20A (2) $ 5,982,227.27 Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ 5,982,227.27 N/A N/A N/A
Class PT2-I-21A (2) $ 5,751,183.20 Class PT2-I-IO-21 N/A N/A
Class PT2-I-21B (3) $ 5,751,183.20 N/A N/A N/A
Class PT2-I-22A (2) $ 5,491,646.07 Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ 5,491,646.07 N/A N/A N/A
Class PT2-I-23A (2) $ 7,749,058.80 Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ 7,749,058.80 N/A N/A N/A
Class PT2-I-24A (2) $ 10,337,768.32 Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ 10,337,768.32 N/A N/A N/A
Class PT2-I-25A (2) $ 11,026,837.84 Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ 11,026,837.84 N/A N/A N/A
Class PT2-I-26A (2) $ 7,838,206.66 Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ 7,838,206.66 N/A N/A N/A
Class PT2-I-27A (2) $ 2,318,715.98 Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ 2,318,715.98 N/A N/A N/A
Class PT2-I-28A (2) $ 3,485,059.05 Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ 3,485,059.05 N/A N/A N/A
Class PT2-I-29A (2) $ 3,292,819.37 Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ 3,292,819.37 N/A N/A N/A
Class PT2-I-30A (2) $ 3,110,788.57 Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ 3,110,788.57 N/A N/A N/A
Class PT2-I-31A (2) $ 2,939,683.42 Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ 2,939,683.42 N/A N/A N/A
Class PT2-I-32A (2) $ 2,778,743.31 Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ 2,778,743.31 N/A N/A N/A
Class PT2-I-33A (2) $ 2,626,883.13 Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ 2,626,883.13 N/A N/A N/A
Class PT2-I-34A (2) $ 2,483,604.38 Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ 2,483,604.38 N/A N/A N/A
Class PT2-I-35A (2) $ 2,348,206.94 Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ 2,348,206.94 N/A N/A N/A
Class PT2-I-36A (2) $ 2,220,527.71 Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ 2,220,527.71 N/A N/A N/A
Class PT2-I-37A (2) $ 2,100,075.61 Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ 2,100,075.61 N/A N/A N/A
Class PT2-I-38A (2) $ 1,986,457.68 Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ 1,986,457.68 N/A N/A N/A
Class PT2-I-39A (2) $ 1,879,200.73 Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ 1,879,200.73 N/A N/A N/A
Class PT2-I-40A (2) $ 1,777,948.02 Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ 1,777,948.02 N/A N/A N/A
Class PT2-I-41A (2) $ 1,682,279.20 Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ 1,682,279.20 N/A N/A N/A
Class PT2-I-42A (2) $ 1,591,993.91 Class PT2-I-IO-42 N/A N/A
Class PT2-I-42B (3) $ 1,591,993.91 N/A N/A N/A
Class PT2-I-43A (2) $ 1,506,744.59 Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ 1,506,744.59 N/A N/A N/A
Class PT2-I-44A (2) $ 1,426,256.15 Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ 1,426,256.15 N/A N/A N/A
Class PT2-I-45A (2) $ 1,350,233.42 Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ 1,350,233.42 N/A N/A N/A
Class PT2-I-46A (2) $ 1,278,423.31 Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ 1,278,423.31 N/A N/A N/A
Class PT2-I-47A (2) $ 1,210,580.54 Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ 1,210,580.54 N/A N/A N/A
Class PT2-I-48A (2) $ 1,146,487.24 Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ 1,146,487.24 N/A N/A N/A
Class PT2-I-49A (2) $ 1,112,216.85 Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ 1,112,216.85 N/A N/A N/A
Class PT2-I-50A (2) $ 1,090,877.09 Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ 1,090,877.09 N/A N/A N/A
Class PT2-I-51A (2) $ 1,033,522.46 Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ 1,033,522.46 N/A N/A N/A
Class PT2-I-52A (2) $ 979,312.00 Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ 979,312.00 N/A N/A N/A
Class PT2-I-53A (2) $ 928,067.70 Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ 928,067.70 N/A N/A N/A
Class PT2-I-54A (2) $ 879,621.93 Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ 879,621.93 N/A N/A N/A
Class PT2-I-55A (2) $ 833,818.17 Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ 833,818.17 N/A N/A N/A
Class PT2-I-56A (2) $ 790,504.93 Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ 790,504.93 N/A N/A N/A
Class PT2-I-57A (2) $ 749,563.29 Class PT2-I-IO-57 N/A N/A
Class PT2-I-57B (3) $ 749,563.29 N/A N/A N/A
Class PT2-I-58A (2) $ 711,086.85 Class PT2-I-IO-58 N/A N/A
Class PT2-I-58B (3) $ 711,086.85 N/A N/A N/A
Class PT2-I-59A (2) $ 675,176.34 Class PT2-I-IO-59 N/A N/A
Class PT2-I-59B (3) $ 675,176.34 N/A N/A N/A
Class PT2-I-60A (2) $ 640,502.93 Class PT2-I-IO-60 N/A N/A
Class PT2-I-60B (3) $ 640,502.93 N/A N/A N/A
Class PT2-I-61A (2) $ 11,239,342.07 Class PT2-I-IO-61 N/A N/A
Class PT2-I-61B (3) $ 11,239,342.07 N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A March 2007
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A April 2007
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A May 2007
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A June 2007
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A July 2007
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A August 2007
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A September 2007
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A October 2007
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A November 2007
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A December 2007
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A January 2008
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A February 2008
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A March 2008
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A April 2008
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A May 2008
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A June 2008
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A July 2008
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A August 2008
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A September 2008
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A October 2008
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A November 2008
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A December 2008
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A January 2009
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A February 2009
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A March 2009
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A April 2009
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A May 2009
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A June 2009
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A July 2009
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A August 2009
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A September 2009
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A October 2009
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A November 2009
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A December 2009
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A January 2010
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A February 2010
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A March 2010
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A April 2010
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A May 2010
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A June 2010
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A July 2010
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A August 2010
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A September 2010
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A October 2010
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A November 2010
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A December 2010
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A January 2011
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A February 2011
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A March 2011
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A April 2011
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A May 2011
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A June 2011
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A July 2011
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A August 2011
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A September 2011
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A October 2011
Class PT2-I-IO-58 (4) (4) N/A Class PT1-I-58A November 2011
Class PT2-I-IO-59 (4) (4) N/A Class PT1-I-59A December 2011
Class PT2-I-IO-60 (4) (4) N/A Class PT1-I-60A January 2012
Class PT2-I-IO-61 (4) (4) N/A Class PT1-I-61A February 2012
Class PT2-II-1 (5) $ 266,646,378.49 N/A N/A N/A
Class PT2-II-2A (6) $ 6,338,772.83 Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $ 6,338,772.83 N/A N/A N/A
Class PT2-II-3A (6) $ 7,751,172.02 Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $ 7,751,172.02 N/A N/A N/A
Class PT2-II-4A (6) $ 9,150,096.38 Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $ 9,150,096.38 N/A N/A N/A
Class PT2-II-5A (6) $ 10,523,367.62 Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $ 10,523,367.62 N/A N/A N/A
Class PT2-II-6A (6) $ 11,858,441.56 Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $ 11,858,441.56 N/A N/A N/A
Class PT2-II-7A (6) $ 13,142,186.38 Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $ 13,142,186.38 N/A N/A N/A
Class PT2-II-8A (6) $ 14,362,229.74 Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $ 14,362,229.74 N/A N/A N/A
Class PT2-II-9A (6) $ 15,496,413.80 Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $ 15,496,413.80 N/A N/A N/A
Class PT2-II-10A (6) $ 16,482,150.04 Class PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $ 16,482,150.04 N/A N/A N/A
Class PT2-II-11A (6) $ 16,859,715.96 Class PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $ 16,859,715.96 N/A N/A N/A
Class PT2-II-12A (6) $ 16,523,745.93 Class PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $ 16,523,745.93 N/A N/A N/A
Class PT2-II-13A (6) $ 15,750,729.98 Class PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $ 15,750,729.98 N/A N/A N/A
Class PT2-II-14A (6) $ 15,014,182.96 Class PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $ 15,014,182.96 N/A N/A N/A
Class PT2-II-15A (6) $ 14,312,371.58 Class PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $ 14,312,371.58 N/A N/A N/A
Class PT2-II-16A (6) $ 13,643,646.87 Class PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $ 13,643,646.87 N/A N/A N/A
Class PT2-II-17A (6) $ 13,006,438.21 Class PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $ 13,006,438.21 N/A N/A N/A
Class PT2-II-18A (6) $ 12,399,249.19 Class PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $ 12,399,249.19 N/A N/A N/A
Class PT2-II-19A (6) $ 11,825,557.11 Class PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $ 11,825,557.11 N/A N/A N/A
Class PT2-II-20A (6) $ 11,273,776.23 Class PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $ 11,273,776.23 N/A N/A N/A
Class PT2-II-21A (6) $ 10,838,363.30 Class PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $ 10,838,363.30 N/A N/A N/A
Class PT2-II-22A (6) $ 10,349,253.93 Class PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $ 10,349,253.93 N/A N/A N/A
Class PT2-II-23A (6) $ 14,603,449.70 Class PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $ 14,603,449.70 N/A N/A N/A
Class PT2-II-24A (6) $ 19,481,989.18 Class PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $ 19,481,989.18 N/A N/A N/A
Class PT2-II-25A (6) $ 20,780,571.66 Class PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $ 20,780,571.66 N/A N/A N/A
Class PT2-II-26A (6) $ 14,771,452.84 Class PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $ 14,771,452.84 N/A N/A N/A
Class PT2-II-27A (6) $ 4,369,724.52 Class PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $ 4,369,724.52 N/A N/A N/A
Class PT2-II-28A (6) $ 6,567,750.45 Class PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $ 6,567,750.45 N/A N/A N/A
Class PT2-II-29A (6) $ 6,205,466.13 Class PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $ 6,205,466.13 N/A N/A N/A
Class PT2-II-30A (6) $ 5,862,420.93 Class PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $ 5,862,420.93 N/A N/A N/A
Class PT2-II-31A (6) $ 5,539,965.58 Class PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $ 5,539,965.58 N/A N/A N/A
Class PT2-II-32A (6) $ 5,236,666.69 Class PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $ 5,236,666.69 N/A N/A N/A
Class PT2-II-33A (6) $ 4,950,479.37 Class PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $ 4,950,479.37 N/A N/A N/A
Class PT2-II-34A (6) $ 4,680,464.12 Class PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ 4,680,464.12 N/A N/A N/A
Class PT2-II-35A (6) $ 4,425,301.56 Class PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $ 4,425,301.56 N/A N/A N/A
Class PT2-II-36A (6) $ 4,184,684.29 Class PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $ 4,184,684.29 N/A N/A N/A
Class PT2-II-37A (6) $ 3,957,686.89 Class PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $ 3,957,686.89 N/A N/A N/A
Class PT2-II-38A (6) $ 3,743,568.82 Class PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $ 3,743,568.82 N/A N/A N/A
Class PT2-II-39A (6) $ 3,541,438.27 Class PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $ 3,541,438.27 N/A N/A N/A
Class PT2-II-40A (6) $ 3,350,622.98 Class PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $ 3,350,622.98 N/A N/A N/A
Class PT2-II-41A (6) $ 3,170,330.80 Class PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $ 3,170,330.80 N/A N/A N/A
Class PT2-II-42A (6) $ 3,000,184.09 Class PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $ 3,000,184.09 N/A N/A N/A
Class PT2-II-43A (6) $ 2,839,527.91 Class PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $ 2,839,527.91 N/A N/A N/A
Class PT2-II-44A (6) $ 2,687,843.85 Class PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $ 2,687,843.85 N/A N/A N/A
Class PT2-II-45A (6) $ 2,544,575.58 Class PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $ 2,544,575.58 N/A N/A N/A
Class PT2-II-46A (6) $ 2,409,246.19 Class PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $ 2,409,246.19 N/A N/A N/A
Class PT2-II-47A (6) $ 2,281,393.46 Class PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $ 2,281,393.46 N/A N/A N/A
Class PT2-II-48A (6) $ 2,160,606.76 Class PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ 2,160,606.76 N/A N/A N/A
Class PT2-II-49A (6) $ 2,096,022.65 Class PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ 2,096,022.65 N/A N/A N/A
Class PT2-II-50A (6) $ 2,055,806.91 Class PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ 2,055,806.91 N/A N/A N/A
Class PT2-II-51A (6) $ 1,947,719.54 Class PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ 1,947,719.54 N/A N/A N/A
Class PT2-II-52A (6) $ 1,845,557.50 Class PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ 1,845,557.50 N/A N/A N/A
Class PT2-II-53A (6) $ 1,748,985.30 Class PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ 1,748,985.30 N/A N/A N/A
Class PT2-II-54A (6) $ 1,657,687.07 Class PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ 1,657,687.07 N/A N/A N/A
Class PT2-II-55A (6) $ 1,571,367.83 Class PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ 1,571,367.83 N/A N/A N/A
Class PT2-II-56A (6) $ 1,489,742.07 Class PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ 1,489,742.07 N/A N/A N/A
Class PT2-II-57A (6) $ 1,412,585.71 Class PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ 1,412,585.71 N/A N/A N/A
Class PT2-II-58A (6) $ 1,340,075.15 Class PT2-II-IO-58 N/A N/A
Class PT2-II-58B (7) $ 1,340,075.15 N/A N/A N/A
Class PT2-II-59A (6) $ 1,272,400.16 Class PT2-II-IO-59 N/A N/A
Class PT2-II-59B (7) $ 1,272,400.16 N/A N/A N/A
Class PT2-II-60A (6) $ 1,207,056.57 Class PT2-II-IO-60 N/A N/A
Class PT2-II-60B (7) $ 1,207,056.57 N/A N/A N/A
Class PT2-II-61A (6) $ 21,181,045.43 Class PT2-II-IO-61 N/A N/A
Class PT2-II-61B (7) $ 21,181,045.43 N/A N/A N/A
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A March 2007
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A April 2007
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A May 2007
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A June 2007
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A July 2007
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A August 2007
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A September 2007
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A October 2007
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A November 2007
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A December 2007
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A January 2008
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A February 2008
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A March 2008
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A April 2008
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A May 2008
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A June 2008
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A July 2008
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A August 2008
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A September 2008
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A October 2008
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A November 2008
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A December 2008
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A January 2009
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A February 2009
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A March 2009
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A April 2009
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A May 2009
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A June 2009
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A July 2009
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A August 2009
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A September 2009
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A October 2009
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A November 2009
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A December 2009
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A January 2010
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A February 2010
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A March 2010
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A April 2010
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A May 2010
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A June 2010
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A July 2010
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A August 2010
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A September 2010
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A October 2010
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A November 2010
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A December 2010
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A January 2011
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A February 2011
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A March 2011
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A April 2011
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A May 2011
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A June 2011
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A July 2011
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A August 2011
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A September 2011
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A October 2011
Class PT2-II-IO-58 (4) (4) N/A Class PT1-II-58A November 2011
Class PT2-II-IO-59 (4) (4) N/A Class PT1-II-59A December 2011
Class PT2-II-IO-60 (4) (4) N/A Class PT1-II-60A January 2012
Class PT2-II-IO-61 (4) (4) N/A Class PT1-II-61A February 2012
Class PT2-R (8) $50.00 N/A N/A N/A
--------
(1) For any Distribution Date (and the related Interest Accrual Period),
this Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per
annum rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the
Pooling-Tier REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period),
this Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per
annum rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the
weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Group I Mortgage
Loans and having an "A" in their class designation, provided that, on
each Distribution Date on which interest is distributable on the
Corresponding Pooling-Tier REMIC-2 IO Interest, this Pooling-Tier
REMIC-2 Regular Interest shall bear interest at a per annum rate equal
to Swap LIBOR subject to a maximum rate equal to the weighted average of
the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier REMIC-1
Regular Interests relating to Group I Mortgage Loans and having an "A"
in their class designation.
(3) For any Distribution Date (and the related Interest Accrual Period),
this Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per
annum rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the
weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Group I Mortgage
Loans and having a "B" in their class designation.
(4) Each Pooling-Tier REMIC-2 IO is an interest-only interest and does not
have a principal balance but has a notional balance ("Pooling-Tier
REMIC-2 IO Notional Balance") equal to the Pooling-Tier REMIC-2
Principal Amount of the Corresponding Pooling-Tier REMIC-1 Regular
Interest. From the Closing Date through and including the Corresponding
Actual Crossover Distribution Date, each Pooling-Tier REMIC-2 IO
Interest shall be entitled to receive interest that accrues on the
Corresponding Pooling-Tier REMIC-1 Regular Interest at a rate equal to
the excess, if any, of (i) the Pooling-Tier REMIC-1 Interest Rate for
the Corresponding Pooling-Tier REMIC-1 Regular Interest over (ii) Swap
LIBOR. After the Corresponding Actual Crossover Distribution Date, the
Pooling-Tier REMIC-2 IO Interest shall not accrue interest.
(5) For any Distribution Date (and the related Interest Accrual Period),
this Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per
annum rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the
Pooling-Tier REMIC-1 Loan Group II WAC Rate.
(6) For any Distribution Date (and the related Interest Accrual Period),
this Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per
annum rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the
weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Group II Mortgage
Loans and having an "A" in their class designation, provided that, on
each Distribution Date on which interest is distributable on the
Corresponding Pooling-Tier REMIC-2 IO Interest, this Pooling-Tier
REMIC-2 Regular Interest shall bear interest at a per annum rate equal
to Swap LIBOR subject to a maximum rate equal to the weighted average of
the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier REMIC-1
Regular Interests relating to Group II Mortgage Loans and having an "A"
in their class designation.
(7) For any Distribution Date (and the related Interest Accrual Period),
this Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per
annum rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the
weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Group II Mortgage
Loans and having a "B" in their class designation.
(8) The Class PT2-R Interest shall not bear interest.
On each Distribution Date, the interest distributable in respect
of the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling-Tier REMIC-2 Regular Interests at the Pooling-Tier REMIC-2 Interest
Rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class R Certificates (in respect of the Class PT2-R Interest)
pursuant to Section 4.02(a)(iii) until its Class Certificate Balance is reduced
to zero, then to the outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the Pooling-Tier REMIC-2 IO Interests) relating to Group I Mortgage Loans
with the lowest numerical denomination until the Pooling-Tier REMIC-2 Principal
Amount of such interest is reduced to zero, provided that, for Pooling-Tier
REMIC-2 Regular Interests relating to Group I Mortgage Loans with the same
numerical denomination, such Realized Losses and payments of principal shall be
allocated pro rata between such Pooling-Tier REMIC-2 Regular Interests, until
the Pooling-Tier REMIC-2 Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-2 Regular Interests (other than
the Pooling-Tier REMIC-2 IO Interests) relating to Group II Mortgage Loans with
the lowest numerical denomination until the Pooling-Tier REMIC-2 Principal
Amount of such interest is reduced to zero, provided that, for Pooling-Tier
REMIC-2 Regular Interests relating to Group II Mortgage Loans with the same
numerical denomination, such Realized Losses and payments of principal shall be
allocated pro rata between such Pooling-Tier REMIC-2 Regular Interests, until
the Pooling-Tier REMIC-2 Principal Amount of such interest is reduced to zero.
Lower-Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and
each such interest, other than the Class LT-R Interest, is hereby designated as
a regular interest in the Lower-Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower-Tier REMIC and
shall be represented by the Class R Certificates.
Corresponding
Lower-Tier Lower-Tier Initial Lower-Tier Upper-Tier REMIC
REMIC Interest Interest Rate Principal Amount Regular Interest
------------------- ------------- --------------------------------- ----------------
Class LT-A-1 (1) 1/2 initial Class Certificate A-1
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-A-2A (1) 1/2 initial Class Certificate A-2A
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-A-2B (1) 1/2 initial Class Certificate A-2B
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-A-2C (1) 1/2 initial Class Certificate A-2C
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-A-2D (1) 1/2 initial Class Certificate A-2D
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-1 (1) 1/2 initial Class Certificate M-1
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-2 (1) 1/2 initial Class Certificate M-2
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-3 (1) 1/2 initial Class Certificate M-3
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-4 (1) 1/2 initial Class Certificate M-4
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-5 (1) 1/2 initial Class Certificate M-5
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-6 (1) 1/2 initial Class Certificate M-6
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-7 (1) 1/2 initial Class Certificate M-7
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-8 (1) 1/2 initial Class Certificate M-8
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-9 (1) 1/2 initial Class Certificate M-9
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-B-1 (1) 1/2 initial Class Certificate B-1
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-B-2 (1) 1/2 initial Class Certificate B-2
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-Accrual (1) 1/2 Pool Principal Balance plus 1/2 N/A
Overcollateralized Amount, less
the Initial Lower-Tier Principal
Amounts of the Class LT-Group I,
Class LT-Group II and Class LT-3
Interests, less $50
Class LT-Group I (2) 0.001% aggregate Stated Principal N/A
Balance of Group I Mortgage
Loans(4)
Class LT-Group II (3) 0.001% aggregate Stated Principal N/A
Balance of Group II Mortgage
Loans(4)
Class LT-IO (5) (5) N/A
Class LT-3 (6) $50.00
Class LT-R (7) (7) N/A
-----------------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the weighted average of
the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests).
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted
average of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier
REMIC-2 Regular Interests (other than the Pooling Tier REMIC-2 IO
Interests) relating to Group I Mortgage Loans.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted
average of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier
REMIC-2 Regular Interests (other than the Pooling Tier REMIC-2 IO
Interests) relating to Group II Mortgage Loans.
(4) For all Distribution Dates, the Lower-Tier Principal Amount of these
Lower-Tier Regular Interests shall be rounded to eight decimal places.
(5) This Lower-Tier Regular Interest is an interest-only interest and does
not have a Lower-Tier Principal Amount. On each Distribution Date, this
Lower-Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling-Tier REMIC-2 IO Interests.
(6) This Lower-Tier Regular Interest shall not be entitled to interest and
shall have a Lower-Tier Principal Amount at all times equal to the Class
Certificate Balance of the Class RX Certificates.
(7) The Class LT-R Interest does not have a principal amount or an interest
rate.
Each Lower-Tier Regular Interest is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class LT-A-1, Class LT-A-2A, Class
LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class LT-M-2, Class LT-M-3,
Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7, Class LT-M-8, Class
LT-M-9, Class LT-B-1 and Class LT-B-2 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes").
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount shall be payable as a reduction of the Lower-Tier
Principal Amount of the LT-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 shall be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
shall not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans and all Subsequent Recoveries allocable to principal shall be allocated
(i) 50% to the Class LT-Accrual Interest, the Class LT-Group I Interest and
Class LT-Group II Interest (and further allocated among these Lower-Tier Regular
Interests in the manner described below) and (ii) 50% to the LT-Accretion
Directed Classes (such principal payments and Subsequent Recoveries shall be
allocated among such LT-Accretion Directed Classes in an amount equal to 50% of
the principal amounts and Subsequent Recoveries 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 LT-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 Lower-Tier
Principal Amount of each of the LT-Accretion Directed Classes is equal to 50% of
the Class Certificate Balance of their Corresponding Class, and (ii) the Class
LT-Accrual Interest, the Class LT-Group I and the Class LT-Group II Interest
(and further allocated among these Lower-Tier Regular Interests in the manner
described below) is equal to 50% of the aggregate Stated Principal Balance of
the Mortgage Loans plus 50% of the Overcollateralized Amount. Any increase in
the Class Certificate Balance of a Class of LIBOR Certificates as a result of a
Subsequent Recovery shall increase the Lower-Tier Principal Amount of the
Corresponding Lower-Tier Regular Interest by 50% of such increase, and the
remaining 50% of such increase shall increase the Lower-Tier Principal Amount of
the Class LT-Accrual Interest. As among the Class LT-Accrual Interest, the Class
LT-Group I Interest and the Class LT-Group II Interest, all payments of
scheduled principal and prepayments of principal generated by the Mortgage
Loans, all Subsequent Recoveries and all Realized Losses, allocable to such
Lower-Tier Regular Interests shall be allocated (i) to the Class LT-Group I
Interest and the Class LT-Group II Interest, each from the related Loan Group so
that their respective Lower-Tier 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 Loan Group and (ii) the remainder to the Class
LT-Accrual Interest.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following interests, and
each such interest, other than the Class UT-R Interest, is hereby designated as
a regular interest in the Upper-Tier REMIC. The Class UT-R Interest is hereby
designated as the sole class of residual interests in the Upper-Tier REMIC and
shall be represented by the Class R Certificates.
Upper-Tier REMIC Upper-Tier Initial Principal Corresponding Class
Interest Interest Rate Upper-Tier Amount of Certificates
-------------------- ------------- ----------------- -------------------
Class A-1 (1) $ 479,787,000 Class A-1
Class A-2A (2) $ 482,234,000 Class A-2A
Class A-2B (2) $ 145,757,000 Class A-2B
Class A-2C (2) $ 196,365,000 Class A-2C
Class A-2D (2) $ 79,824,000 Class A-2D
Class M-1 (3) $ 76,022,000 Class M-1
Class M-2 (3) $ 75,106,000 Class M-2
Class M-3 (3) $ 40,301,000 Class M-3
Class M-4 (3) $ 38,469,000 Class M-4
Class M-5 (3) $ 34,805,000 Class M-5
Class M-6 (3) $ 24,730,000 Class M-6
Class M-7 (3) $ 22,898,000 Class M-7
Class M-8 (3) $ 15,571,000 Class M-8
Class M-9 (3) $ 21,982,000 Class M-9
Class B-1 (3) $ 32,058,000 Class B-1
Class B-2 (3) $ 26,562,000 Class B-2
Class UT-IO (4) (4) N/A
Class UT-X (5) (5) N/A
Class UT-3 (6) $50 N/A
Class UT-R (7) (7) Class R
-----------------
(1) For any Distribution Date (and the related Interest Accrual Period),
this interest shall bear interest at the least of (i) the Pass-Through
Rate (determined without regard to the Loan Group I Cap or WAC Cap) for
the Corresponding Class of Certificates, (ii) the Lower-Tier Interest
Rate for the Class LT-Group I Interest (the "Upper-Tier REMIC Loan Group
I Rate") and (iii) the Upper-Tier REMIC WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period),
this interest shall bear interest at the least of (i) the Pass-Through
Rate (determined without regard to the Loan Group II Cap or WAC Cap) for
the Corresponding Class of Certificates, (ii) the Lower-Tier Interest
Rate for the Class LT-Group II Interest (the "Upper-Tier REMIC Loan
Group II Rate") and (iii) the Upper-Tier REMIC WAC Rate.
(3) For any Distribution Date (and the related Interest Accrual Period),
this interest shall bear interest at the lesser of (i) the Pass-Through
Rate (determined without regard to the applicable WAC Cap) for the
Corresponding Class of Certificates and (ii) the Upper-Tier REMIC WAC
Rate.
(4) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class UT-IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest.
(5) The Class UT-X Interest has an initial principal balance of
$40,853,848.01 but will not accrue interest on such balance but will
accrue interest on a notional principal balance. As of any Distribution
Date, the Class UT-X Interest shall have a notional principal balance
equal to the aggregate of the Lower-Tier Principal Amounts of the
Lower-Tier Regular Interests (other than the Class LT-IO and Class LT-3
Interests) as of the first day of the related Interest Accrual Period.
With respect to any Interest Accrual Period, the Class UT-X Interest
shall bear interest at a rate equal to the excess, if any, of the
Upper-Tier REMIC WAC Rate over the product of (i) 2 and (ii) the
weighted average of the Lower-Tier Interest Rates of the Lower-Tier
REMIC Interests (other than the Class LT-IO and Class LT-3 Interests),
where the Lower-Tier Interest Rate on each of the Class LT-Accrual
Interest, Class LT-Group I Interest and Class LT-Group II Interest is
subject to a cap equal to zero and each LT-Accretion Directed Class is
subject to a cap equal to the Upper-Tier Interest Rate on its
Corresponding Class of Upper-Tier Regular Interest. With respect to any
Distribution Date, interest that so accrues on the notional principal
balance of the Class UT-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.
(6) This Upper-Tier Regular Interest shall not be entitled to interest and
shall have a principal balance equal to the Class Certificate Balance of
the Class RX Certificates.
(7) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of
the Lower-Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper-Tier REMIC at the rates shown above,
provided that the Class UT-IO Interest shall be entitled to receive interest
before any other interest in the Upper-Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper-Tier
Interests until the outstanding principal balance of each such interest equals
the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Class X REMIC
The Class X REMIC shall issue the following classes of interests.
The Class X Interest and the Class IO Interest shall each 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
Class X REMIC Designation Interest Rate Principal Amount
------------------------- ------------- ----------------
Class X Interest (1) (1)
Class IO Interest (2) (2)
Class RX Certificates (3) $50.00
--------
(1) The Class X Interest has an initial principal balance equal to the
initial principal balance of the Class UT-X Interest and is entitled to
100% of the interest and principal on the Class UT-X Interest on each
Distribution Date.
(2) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date the Class IO Interest shall be
entitled to receive 100% of the interest distributable on the Class
UT-IO Interest.
(3) The Class RX Certificates do not have an interest rate.
Certificates
------------
Class Pass-Through Class Certificate
Class Designation Rate Balance
----------------- ------------------ -----------------
Class A-1(21) (1) $ 479,787,000
Class A-2A(21) (2) $ 482,234,000
Class A-2B(21) (3) $ 145,757,000
Class A-2C(21) (4) $ 196,365,000
Class A-2D(21) (5) $ 79,824,000
Class M-1(21) (6) $ 76,022,000
Class M-2(21) (7) $ 75,106,000
Class M-3(21) (8) $ 40,301,000
Class M-4(21) (9) $ 38,469,000
Class M-5(21) (10) $ 34,805,000
Class M-6(21) (11) $ 24,730,000
Class M-7(21) (12) $ 22,898,000
Class M-8(21) (13) $ 15,571,000
Class M-9(21) (14) $ 21,982,000
Class B-1(21) (15) $ 32,058,000
Class B-2(21) (16) $ 26,562,000
Class X (17) 0(17)
Class R (18) $ 50
Class RC (19) $ 100
Class RX (20) $ 50
--------
(1) The Class A-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group I Cap
and (3) the WAC Cap.
(2) The Class A-2A Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(3) The Class A-2B Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(4) The Class A-2C Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(5) The Class A-2D Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(6) The Class M-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(7) The Class M-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(8) The Class M-3 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(9) The Class M-4 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(10) The Class M-5 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(11) The Class M-6 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(12) The Class M-7 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(13) The Class M-8 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(14) The Class M-9 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(15) The Class B-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(16) The Class B-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(17) The Class X Certificates will represent beneficial ownership of (i) the
Class X Interest, (ii) the Class IO Interest, (iii) the right to receive
Class IO Shortfalls, (iv) the Interest Rate Cap Agreement, (v) amounts
in the Supplemental Interest Trust, including the Interest Rate Swap
Agreement subject to the obligation to pay Net Swap Payments and Swap
Termination Payments to the Swap Provider and Basis Risk Carry Forward
Amounts and, without duplication, Upper-Tier Carry Forward Amounts and
(vi) amounts in the Excess Reserve Fund Account, subject to the
obligation to make payments from the Excess Reserve Fund Account in
respect of Basis Risk Carry Forward Amounts. For federal income tax
purposes, the Securities Administrator will treat a Class X
Certificateholder's obligation to make payments of Basis Risk Carry
Forward Amounts and, without duplication, Upper-Tier Carry Forward
Amounts to the LIBOR Certificates from the Excess Reserve Fund Account
and the Supplemental Interest Trust and, without duplication, Upper-Tier
Carry-Forward Amounts from the Supplemental Interest Trust and the right
to receive Class IO Shortfalls as payments made pursuant to a notional
principal contract between the Class X Certificateholders and each Class
of LIBOR Certificates. Such rights of the Class X Certificateholders and
LIBOR Certificateholders shall be treated as held in a portion of the
Trust Fund that is treated as a grantor trust under subpart E, Part I of
subchapter J of the Code.
(18) The Class R Certificates do not have an interest rate. The Class R
Certificates represent ownership of the Class PT2-R Interest, the Class
LT-R Interest and the Class UT-R Interest.
(19) The Class RC Certificates do not have an interest rate. The Class RC
Certificates represent the residual interest in Pooling-Tier REMIC-1.
(20) The Class RX Certificates do not have an interest rate. The Class RX
Certificates represent the residual interest in the Class X REMIC.
(21) Each of these Certificates will represent not only the ownership of a
regular interest in the Corresponding REMIC but also the right to
receive payments from the Excess Reserve Fund Account and the
Supplemental Interest Trust. Each of these Certificates will also be
subject to the obligation to pay Class IO Shortfalls as described in
Section 8.13. For federal income tax purposes, any amount distributed on
the LIBOR Certificates on any such Distribution Date in excess of the
amount distributable on the regular interest in the Upper-Tier REMIC on
such Distribution Date shall be treated as having been paid from the
Excess Reserve Fund Account or the Supplemental Interest Trust, as
applicable, and any amount distributable on such regular interest on
such Distribution Date in excess of the amount distributable on the
LIBOR 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 8.13. The Securities Administrator will
treat a LIBOR Certificateholder's right to receive payments from the
Excess Reserve Fund Account and the Supplemental Interest Trust, subject
to the obligation to pay Class IO Shortfalls as payments made pursuant
to a notional principal contract between the Class X Certificateholders
and each Class of LIBOR Certificateholders.
The minimum denomination for the LIBOR Certificates will be
$25,000, 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 Certificates will be $25, representing a 50%
Percentage Interest in the related Class, (b) the Class RC Certificates will be
$25, representing a 25% Percentage Interest in the related Class, (c) the Class
RX Certificates will be $25, representing a 50% Percentage Interest in the
related Class, (d) the Class P Certificates will be a 1% Percentage Interest in
such Class and (e) the Class X Certificates will be a 1% Percentage Interest in
such Class.
It is expected that each Class Certificates will receive its
final distribution on or prior to the applicable Final Scheduled Distribution
Date.
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............... Class A-1, Class A-2A, Class A-2B, Class A-2C and
Class A-2D Certificates.
Class A-2 Certificates............. Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates.
Class B Certificates............... Class B-1 and Class B-2 Certificates.
Class M Certificates............... Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8 and
Class M-9 Certificates.
ERISA-Restricted
Certificates..................... Class B-1, Class B-2, Class R, Class RC,
Class RX, Class P and Class X Certificates;
and any Certificate with a rating below the
lowest applicable permitted rating under the
Underwriter's Exemption.
LIBOR Certificates................. Class A, Class M and Class B Certificates.
Offered Certificates............... All Classes of Certificates other than the
Private Certificates.
Physical Certificates.............. Class P, Class X and Residual Certificates.
Private Certificates............... Class B, Class P Certificates and Class X
Certificates.
Rating Agencies.................... Xxxxx'x and Standard & Poor's.
Regular Certificates............... All Classes of Certificates other than the
Class P and Residual Certificates.
Residual Certificates.............. The Class R, Class RC and Class RX Certificates.
Sequential Class M Certificates.... Class M-1, Class M-2 and Class M-3 Certificates.
Subordinated Certificates.......... Class M and Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices set forth in Section 3.01(a) of this
Agreement.
Account: Any of the Collection Account, the Distribution Account,
any Escrow Account, the Excess Reserve Fund Account or the Supplemental Interest
Trust. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of LIBOR Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Additional Form 10-D Disclosure: As defined in Section 8.12(b).
Additional Form 10-K Disclosure: As defined in Section 8.12(c).
Adjustable-Rate Mortgage Loan: An adjustable-rate Mortgage Loan.
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.
Adjustment Date: As to any Adjustable-Rate Mortgage Loan, the
first Due Date on which the related Mortgage Interest Rate adjusts as set forth
in the related Mortgage Note and each Due Date thereafter on which the Mortgage
Interest Rate adjusts as set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 12.07.
Advance Facility Notice: As defined in Section 12.07.
Advance Financing Person: The Person or Lender to whom any
Servicer's rights under this Agreement to be reimbursed for any P&I Advances or
Servicing Advances have been assigned pursuant to Section 12.07.
Advance Reimbursement Amounts: As defined in Section 12.07.
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 Pooling and Servicing Agreement and all
amendments or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on
any Distribution Date, the aggregate amount held in the Collection Account at
the close of business on the related Determination Date on account of (i)
Principal Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds on the Mortgage Loans received after the end of the related Prepayment
Period and (ii) all Scheduled Payments on the Mortgage Loans due after the end
of the related Due Period.
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Securities Administrator by the
Depositor.
Applied Realized Loss Amount: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class Certificate Balance of
the LIBOR Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Appraised Value: (i) With respect to any First Lien Mortgage
Loan, the value of the related Mortgaged Property based upon the appraisal made
for the originator at the time of origination of the Mortgage Loan or the sale
price of the Mortgaged Property at such time of origination, whichever is less,
and (ii) with respect to any Second Lien Mortgage Loan, the value, determined
pursuant to the applicable Underwriting Guidelines, of the related Mortgaged
Property as of the origination of the Second Lien Mortgage Loan; provided,
however, that in the case of a refinanced Mortgage Loan, such value is based
solely upon the appraisal made at the time of origination of such refinanced
Mortgage Loan.
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 Trust.
Auction Call: As defined in Section 9.03(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 (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
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related 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 on the Mortgage Loans received during the related Prepayment
Period together with all Compensating Interest paid by the Servicers in
connection therewith (excluding Prepayment Premiums); (iv) all amounts received
with respect to such Distribution Date as the Substitution Adjustment Amount or
the Repurchase Price in respect of a Deleted Mortgage Loan substituted for or a
Mortgage Loan repurchased by the Sponsor, the Responsible Party or the
Depositor, as applicable, as of such Distribution Date; and (v) the proceeds
received with respect to the termination of the Trust Fund pursuant to clause
(a) of Section 11.01, reduced by (y) all amounts in reimbursement for Advances
previously made with respect to the Mortgage Loans, and other amounts as to
which the Servicers, the Master Servicer, the Securities Administrator, the
Depositor, the Trustee (or co-trustee) or the Custodian 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.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the 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
LIBOR Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon a Loan Group Cap or the WAC Cap, the excess, if any, of (i) the
Accrued Certificate Interest Distribution Amount on such Class of LIBOR
Certificates would otherwise be entitled to receive on such Distribution Date
had such Pass-Through Rate not been subject to the Loan Group Cap or the WAC
Cap, over (ii) the Accrued Certificate Interest Distribution Amount on such
Class of LIBOR Certificates on such Distribution Date giving effect to (a) with
respect to the Class A-1 Certificates, the lesser of the WAC Cap and the Loan
Group I Cap, (b) with respect to the Class A-2 Certificates, the lesser of the
WAC Cap and the Loan Group II Cap, and (c) with respect to each other Class of
LIBOR Certificates, the WAC Cap, and (B) the Basis Risk Carry Forward Amount for
such Class of LIBOR 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 LIBOR Certificates for such
Distribution Date (without giving effect to the WAC Cap, Loan Group I Cap or
Loan Group II Cap, as applicable).
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 and (ii) the Class X Distributable Amount (prior to any
reduction for (x) amounts paid to the Excess Reserve Fund Account to pay any
Basis Risk Carry Forward Amount or (y) any Defaulted Swap Termination Payment).
Best's: Best's Key Rating Guide, as the same shall be amended
from time to time.
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, Maryland and Minnesota, (b) the State in which any
Servicer's servicing operations are located, or (c) the State in which any
Corporate Trust Office is located, are authorized or obligated by law or
executive order to be closed.
Cap Payment: With respect to the Interest Rate Cap Agreement and
for any Distribution Date, the amount, if any, required to be paid by the Cap
Provider with respect to such Distribution Date under the Interest Rate Cap
Agreement.
Cap Provider: Xxxxxxx Xxxxx Mitsui Marine Derivative Products,
L.P., a Delaware limited partnership, and its successors in interest, and any
successor cap provider under any replacement Interest Rate Cap Agreement.
Certificate: Any one of the Certificates executed by the
Securities Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of LIBOR
Certificates or Residual 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 reduced by the amount of any Applied
Realized Loss Amounts previously allocated to such Class of Certificates
pursuant to Section 4.05; 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 X and Class P Certificates have no
Certificate Balance.
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.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: Either the Class A-1 Certificate Group
or the Class A-2 Certificate Group, as applicable.
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 A-1 Certificate Group, 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 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 A-2 Certificate
Group, 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 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 Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 51.10% 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 A-1 Certificate Group: The Class A-1 Certificates.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificate Group: The Class A-2 Certificates.
Class A-2 Certificates: As specified in the Preliminary
Statement.
Class A-2A Certificates: All Certificates bearing the class
designation of "Class A-2A."
Class A-2B Certificates: All Certificates bearing the class
designation of "Class A-2B."
Class A-2C Certificates: All Certificates bearing the class
designation of "Class A-2C."
Class A-2D Certificates: All Certificates bearing the class
designation of "Class A-2D."
Class B Certificates: As specified in the Preliminary Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-5 Certificates (after
taking into account the distribution of the Class M-5 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class M-6 Certificates (after taking into account the distribution of the Class
M-6 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-8 Certificates (after
taking into account the distribution of the Class M-8 Principal Distribution
Amount on such Distribution Date), (H) the Class Certificate Balance of the
Class M-9 Certificates (after taking into account the distribution of the Class
M-9 Principal Distribution Amount on such Distribution Date) and (I) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 92.80% 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 B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-5 Certificates (after
taking into account the distribution of the Class M-5 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class M-6 Certificates (after taking into account the distribution of the Class
M-6 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-8 Certificates (after
taking into account the distribution of the Class M-8 Principal Distribution
Amount on such Distribution Date), (H) the Class Certificate Balance of the
Class M-9 Certificates (after taking into account the distribution of the Class
M-9 Principal Distribution Amount on such Distribution Date), (I) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date) and (J) the Class Certificate Balance of the Class B-2 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.
Class Certificate Balance: With respect to any Class and as to
any date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfall: As defined in Section 8.13. 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 amounts payable on the Class X Interest and Class IO
Interest (prior to any reduction for Basis Risk Payments or Defaulted Swap
Termination Payments) from Available Funds on such Distribution Date, all as
further provided in Section 8.13.
Class LT-R Interest: The residual interest in the Lower-Tier
REMIC as described in the Preliminary Statement and the related footnote
thereto.
Class M Certificates: As specified in the Preliminary Statement.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-4 Certificates: All Certificates bearing the class
designation of "Class M-4."
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), and (C) the Class
Certificate Balance of the Class M-4 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 76.20% 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 M-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (D) the Class Certificate Balance of the Class M-5 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 80.00% 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 M-6 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-5 Certificates (after
taking into account the distribution of the Class M-5 Principal Distribution
Amount on such Distribution Date) and (E) the Class Certificate Balance of the
Class M-6 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 82.70% 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 M-7 Certificates: All Certificates bearing the class
designation of "Class M-7."
Class M-7 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-5 Certificates (after
taking into account the distribution of the Class M-5 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class M-6 Certificates (after taking into account the distribution of the Class
M-6 Principal Distribution Amount on such Distribution Date) and (F) the Class
Certificate Balance of the Class M-7 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 85.20% 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 M-8 Certificates: All Certificates bearing the class
designation of "Class M-8."
Class M-8 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-5 Certificates (after
taking into account the distribution of the Class M-5 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class M-6 Certificates (after taking into account the distribution of the Class
M-6 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date) and (G) the Class Certificate Balance of the Class M-8 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 86.90% 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.
Class M-9 Certificates: All Certificates bearing the class
designation of "Class M-9."
Class M-9 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-5 Certificates (after
taking into account the distribution of the Class M-5 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class M-6 Certificates (after taking into account the distribution of the Class
M-6 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-8 Certificates (after
taking into account the distribution of the Class M-8 Principal Distribution
Amount on such Distribution Date) and (H) the Class Certificate Balance of the
Class M-9 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 89.30% 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 P Certificates: All Certificates bearing the class
designation of "Class P."
Class PT1-R Interest: The residual interest in Pooling-Tier
REMIC-1 as described in the Preliminary Statement and the related footnote
thereto.
Class PT2-R Interest: The residual interest in Pooling-Tier
REMIC-2 as described in the Preliminary Statement and the related footnote
thereto.
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 UT-3 Interest: A regular interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class UT-IO Interest: A regular interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class UT-R Interest: The residual interest in the Upper-Tier
REMIC as described in the Preliminary Statement and the related footnote
thereto.
Class UT-X Interest: A regular interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class
designation of "Class X."
Class X Distributable Amount: On any Distribution Date, the sum
of (i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class UT-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 UT-X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid from the
Excess Reserve Fund Account to pay Basis Risk Carry Forward Amounts, and any
Defaulted Swap Termination Payment payable from Available Funds to the Swap
Provider.
Class X Interest: The regular interest in the Class X REMIC
represented by the Class X Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Class X REMIC: As defined in the Preliminary Statement.
Class X REMIC Regular Interest: Each of the Class X Interest and
Class IO Interest issued by the Class X REMIC.
Closing Date: February 20, 2007.
Code: The Internal Revenue Code of 1986, including any successor
or amendatory provisions.
Collection Accounts: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of the date of
origination and as to any Second Lien Mortgage Loan, the ratio, expressed as a
percentage, of (a) the sum of (i) the outstanding principal balance of the
Second Lien Mortgage Loan as of the date of origination and (ii) the outstanding
principal balance as of the date of origination of any mortgage loan or mortgage
loans that are senior to or equal in priority to the Second Lien Mortgage Loan
and which are secured by the same Mortgaged Property to (b) the Appraised Value.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date and each
Servicer, the lesser of (a) the Prepayment Interest Shortfall, if any, for such
Distribution Date, with respect to voluntary Principal Prepayments in Full
(excluding any payments made upon liquidation of the Mortgage Loan) during the
related Prepayment Period, and (b) one-half of the Servicing Fee payable to the
Servicer for such Distribution Date.
Condemnation Proceeds: All awards, compensation and/or
settlements in respect of a Mortgaged Property, whether permanent or temporary,
partial or entire, by exercise of the power of eminent domain or condemnation,
to the extent not required to be released to a Mortgagor in accordance with the
terms of the related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator: (i) for certificate transfer purposes, the office of the
Securities Administrator at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Services, GSAMP 2007-NC1, (ii) for
all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager GSAMP 07-NC1, or (iii) 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 designated office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, 00000, Attn: Global Securities and Trust Services--GSAMP
2007-NC1, and which is the address to which notices to and correspondence with
the Trustee should be directed.
Corresponding Actual Crossover Distribution Date: For each
Pooling-Tier REMIC-2 IO Interest, the related Corresponding Scheduled Crossover
Distribution Date, unless on such date two times the aggregate Pooling-Tier
REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2 IO Interest then
outstanding is less than the scheduled swap notional amount of the Interest Rate
Swap Agreement applicable for such Distribution Date, in which case the
Corresponding Actual Crossover Distribution Date for such Pooling-Tier REMIC-2
IO Interest shall be the first Distribution Date thereafter on which two times
the aggregate Pooling-Tier REMIC-2 IO Notional Balance of each other
Pooling-Tier REMIC-2 IO Interest then outstanding is greater than or equal to
the scheduled swap notional amount of the Interest Rate Swap Agreement.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in
another such Trust REMIC or to a Class of Certificates in the manner set out
below.
Lower-Tier Upper-Tier REMIC Corresponding
Class Designation Regular Interest Class of Certificates
----------------- ---------------- ---------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2A Class A-2A Class A-2A
Class LT-A-2B Class A-2B Class A-2B
Class LT-A-2C Class A-2C Class A-2C
Class LT-A-2D Class A-2D Class A-2D
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-M-7 Class M-7 Class M-7
Class LT-M-8 Class M-8 Class M-8
Class LT-M-9 Class M-9 Class M-9
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Corresponding Pooling-Tier REMIC-2 IO Interest: As described in
the Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling-Tier REMIC-2 IO Interest.
Cumulative Loss Event: With respect to any Distribution Date and
each Servicer, a Cumulative Loss Event occurs if the Cumulative Realized Loss
Percentage for such Servicer exceeds the applicable percentage set forth below
with respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
-------------------------------- ------------------------------------------------
March 2010 through February 2011 4.85% of the Cut-off Date Pool Principal Balance
of the Mortgage Loans serviced by such Servicer
March 2011 through February 2012 6.85% of the Cut-off Date Pool Principal Balance
of the Mortgage Loans serviced by such Servicer
March 2012 through February 2013 8.50 % of the Cut-off Date Pool Principal Balance
of the Mortgage Loans serviced by such Servicer
March 2013 and thereafter 9.25% of the Cut-off Date Pool Principal Balance
of the Mortgage Loans serviced by such Servicer
Cumulative Realized Loss Percentage: With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Realized Losses incurred from the Cut-off Date
to the last day of the calendar month preceding the month in which such
Distribution Date occurs and the denominator of which is the Cut-off Date Pool
Principal Balance.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the Custodian or which at any time comes
into the possession of the Custodian.
Custodian: Deutsche Bank National Trust Company, a national
banking association, and its successors in interest.
Cut-off Date: February 1, 2007.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-off
Date Principal Balances of all Mortgage Loans.
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 or prior to that date,
whether or not received).
Data Tape Information: The information provided by the
Responsible Party as of the Cut-off Date to the Depositor setting forth the
following information with respect to each Mortgage Loan: (1) the Responsible
Party's Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the
street address of the Mortgaged Property including the city, state and zip code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a second
home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development or a manufactured housing unit); (6) the original months to maturity
or the remaining months to maturity from the Cut-off Date, in any case based on
the original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (7) with respect
to First Lien Mortgage Loans, the Loan-to-Value Ratio at origination, and with
respect to Second Lien Mortgage Loans, the Combined Loan-to-Value Ratio at
origination; (8) the Mortgage Interest Rate as of the Cut-off Date; (9) the date
on which the Scheduled Payment was due on the Mortgage Loan and, if such date is
not consistent with the Due Date currently in effect, such Due Date; (10) the
stated maturity date; (11) the amount of the Scheduled Payment as of the Cut-off
Date; (12) the last payment date on which a Scheduled Payment was actually
applied to pay interest and the outstanding principal balance; (13) the original
principal amount of the Mortgage Loan; (14) the principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date, after deduction
of payments of principal due and collected on or before the Cut-off Date; (15)
with respect to Adjustable-Rate Mortgage Loans, the Adjustment Date; (16) with
respect to Adjustable-Rate Mortgage Loans, the Gross Margin; (17) with respect
to Adjustable-Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (18) with respect to Adjustable-Rate Mortgage Loans, a code
indicating the type of Index; (19) with respect to Adjustable-Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Cap under the terms of the Mortgage
Note; (20) with respect to Adjustable-Rate Mortgage Loans, the Periodic Mortgage
Interest Rate Floor under the terms of the Mortgage Note; (21) the type of
Mortgage Loan (i.e., fixed-rate, adjustable-rate, first lien, second lien); (22)
a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full documentation, limited documentation or stated income); (24)
the loan credit classification (as described in the Underwriting Guidelines);
(25) whether such Mortgage Loan provides for a Prepayment Premium; (26) the
Prepayment Premium period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score) at origination;
(30) the date of origination; (31) the date of the purchase of the Mortgage
Loan, if applicable; (32) a code indicating whether the Mortgage Loan is
assumable; (33) the Mortgage Interest Rate adjustment period; (34) the Mortgage
Interest Rate floor; (35) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (36) a code indicating whether the Mortgage
Loan has been modified; (37) the one-year payment history; (38) the Due Date for
the first Scheduled Payment; (39) the original Scheduled Payment due; (40) with
respect to the related Mortgagor, the debt-to-income ratio; (41) the Appraised
Value of the Mortgaged Property; (42) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (43) whether the Mortgage Loan is covered by PMI policy and
name of insurer; (44) a code indicating if a Mortgage Loan is or has had a
30-Day Delinquency; (45) a code indicating if the Mortgage Loan is an Interest
Only Mortgage Loan and (46) with respect to each MERS Designated Mortgage Loan,
the MERS identification number. 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.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement)) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the United
States Bankruptcy Code.
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 that is removed from the
Trust pursuant to the terms of this Agreement or the Representation and
Warranties Agreement.
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.
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 Moody's, "F1+" by
Fitch and "A-1" by Standard & Poor's (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement).
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.
Determination Date: With respect to each Distribution Date, the
18th day of the calendar month in which such Distribution Date occurs or, if
such day is not a Business Day, the immediately preceding Business Day.
Deutsche Bank: Deutsche Bank National Trust Company, a national
banking association, and its successors in interest.
Distribution Account: The separate Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.27(b) in the name of the
Securities Administrator as paying agent on behalf of LaSalle Bank NA, for the
benefit of the Certificateholders and designated "Xxxxx Fargo Bank, N.A., in
trust for registered Holders of GSAMP Trust 2007-NC1 Mortgage Pass-Through
Certificates, Series 2007-NC1." Funds in the Distribution Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in this
Agreement and may be invested in Permitted Investments.
Distribution Date: The 25th day of each calendar month or, if
such day is not a Business Day, the next succeeding Business Day, commencing in
March 2007.
Document Certification and Exception Report: The report attached
as Exhibit G hereto.
Due Date: The day of the month on which the Scheduled 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
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal
or state-chartered depository institution or trust company that complies with
the definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account acceptable to
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Securities Administrator. Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated "A-1+" by Standard & Poor's if
the amounts on deposit are to be held in the account for no more than 365 days
(or at least "A-2" by Standard & Poor's if the amounts on deposit are to be held
in the account for no more than 30 days), or the long-term unsecured debt
obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Master Servicer, the Servicers, the Securities Administrator and the
Trustee), in each case, to the extent they are designated as Rating Agencies in
the Preliminary Statement.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of 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.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this Agreement.
Event of Default: As defined in Section 7.01.
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
3.27(a) in the name of the Securities Administrator for the benefit of the
Regular Certificateholders and designated "Xxxxx Fargo Bank, N.A. in trust for
registered Holders of GSAMP Trust 2007-NC1 Mortgage Pass-Through Certificates,
Series 2007-NC1." 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.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate
equal to the sum of the Servicing Fee Rate and the Master Servicing Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing
Fee and the Master Servicing Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Fair Market Value Excess: As defined in Section 11.01.
Xxxxxx Mae: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Xxx Guides: The Xxxxxx Mae Seller's Guide and the Xxxxxx
Xxx Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its
successors in interest.
Final Recovery Determination: With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Depositor, the Sponsor or the Responsible Party as contemplated
by this Agreement), a determination made by the applicable Servicer that all
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and other
payments or recoveries which the applicable Servicer, in its reasonable good
faith judgment, expects to be finally recoverable in respect thereof have been
so recovered. Each Servicer shall maintain records, prepared by a Servicing
Officer, of each Final Recovery Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled
Distribution Date for each Class of LIBOR Certificates and the Class P
Certificates is the Distribution Date occurring in February 2037 and for the
Class X Certificates and the Residual Certificates is the Distribution Date
occurring in December 2046.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first
lien Mortgage on the related Mortgaged Property.
Fitch: Fitch, Inc., and its successors in interest. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 12.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAMP
Trust 2007-NC1, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicers, the Master Servicer, the Securities Administrator and
the Trustee.
Fixed-Rate Mortgage Loan: A fixed-rate Mortgage Loan.
Forbearance: As defined in Section 3.07(a).
Form 8-K Disclosure Information: As defined in Section 8.12(g).
40-Year Trigger Event: If on the 241st Distribution Date or any
Distribution Date thereafter, (i) the aggregate Stated Principal Balance of the
Mortgage Loans with 40-year original terms to maturity, exceeds (ii) the actual
Overcollateralized Amount for such Distribution Date (after giving effect to
principal distributions on such Distribution Date other than principal
distributions resulting from this event).
Xxxxxxx 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.
Gross Margin: With respect to each Adjustable-Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note to be added
to the applicable Index to determine the Mortgage Interest Rate.
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.
High Cost Mortgage Loan: A Mortgage Loan that is (a) covered by
the Home Ownership and Equity Protection Act of 1994, (b) identified, classified
or characterized as "high cost," "threshold," "covered," or "predatory" under
any other applicable state, federal or local law (or a similarly identified,
classified or characterized loan using different terminology under an applicable
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(c) categorized as "High Cost" or "Covered" pursuant to Appendix E of the
Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to
Appendix E of Standard & Poor's Glossary.
Index: As to each Adjustable-Rate Mortgage Loan, the index from
time to time in effect for the adjustment of the Mortgage Interest Rate set
forth as such on the related Mortgage Note.
Initial Certification: The Initial Certification submitted by the
Custodian substantially in the form of Exhibit F.
Insurance Policy: With respect to any Mortgage Loan included in
the Trust Fund, any insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for any
Insurance Policies.
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 each Class of LIBOR
Certificates and each Corresponding Class of Lower-Tier Regular Interests and
each Corresponding Class of Upper-Tier Regular Interests for any Distribution
Date, the period commencing on the immediately preceding Distribution Date (or,
for the initial Distribution Date, the Closing Date) and ending on the day
immediately preceding the current Distribution Date. With respect to the Class
LT-Accrual, Class LT-IO, Class UT-X, Class UT-IO, Class X, Class IO, Class
LT-Group I, Class LT-Group II and each Pooling-Tier REMIC-1 Regular Interest and
Pooling-Tier REMIC-2 Regular Interest and any Distribution Date, the calendar
month preceding such Distribution Date. For purposes of computing interest
accruals on each Class of LIBOR Certificates, each Corresponding Class of
Lower-Tier Regular Interest and each Corresponding Class of Upper-Tier Regular
Interest, each Interest Accrual Period has the actual number of days in such
period and each year is assumed to have 360 days.
Interest Only Mortgage Loan: A Mortgage Loan for which the
related Mortgage Note provides for Scheduled Payments of interest only for a
period of time as specified in the related Mortgage Note.
Interest Rate Cap Agreement: The interest rate cap agreement,
dated as of February 20, 2007, between Xxxxxxx Xxxxx Capital Markets, L.P. (as
assigned to and assumed by the Cap Provider) and Xxxxxxx Sachs Mortgage Company
or any other cap agreement (including any related schedules) entered into by the
Securities Administrator on behalf of the Trust pursuant to Section 2.01(d), a
copy of which is attached hereto as Exhibit X.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of February 20, 2007, between Xxxxxxx Xxxxx Capital Markets, L.P. (as
assigned to and assumed by the Swap Provider) and Xxxxxxx Sachs Mortgage Company
or any other swap agreement (including any related schedules) entered into by
the Securities Administrator on behalf of the Trust pursuant to Section 2.01(d),
a copy of which is attached hereto as Exhibit X.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest received or advanced with respect to the Mortgage Loans
in such Loan Group (net of the applicable fees payable to the Servicer and
Master Servicer) for such Distribution Date, net of any Net Swap Payments and
Swap Termination Payments other than Defaulted Swap Termination Payments payable
to the Swap Provider from Available Funds attributable to such Loan Group with
respect to such Distribution Date.
Interim Servicing Agreement: The Second Amended and Restated Flow
Interim Servicing Agreement, dated as of May 1, 2006, between the Sponsor and
New Century.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Investor-Based Exemption: Any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 91-38 (for transactions by bank collective
investment funds), XXXX 00-0 (for transactions by insurance company pooled
separate accounts), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Law.
Late Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received after the Determination Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
Lender: As defined in Section 12.07.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, however, that if such rate does not appear
on Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date 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 date 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 such date for one-month U.S. dollar loans 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.
Lifetime Rate Cap: The provision of each Mortgage Note related to
an Adjustable-Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable-Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable-Rate Mortgage Loan by more
than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a defaulted Mortgage Loan (including any REO Property) which was liquidated or
charged-off in the calendar month preceding the month of such Distribution Date
and as to which the applicable Servicer has certified (in accordance with this
Agreement) that it has made a Final Recovery Determination.
Liquidation Event: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold or replaced pursuant to or as contemplated by this Agreement. With respect
to any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from coverage under this Agreement by reason of its being purchased
pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance Proceeds,
Condemnation Proceeds or those received following the acquisition of REO
Property, received in connection with the liquidation of a defaulted Mortgage
Loan, whether through a trustee's sale, foreclosure sale or otherwise, including
any Subsequent Recoveries.
Loan Group: The Group I Mortgage Loans or the Group II Mortgage
Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap, as
applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as
of any Distribution Date, a per annum rate equal to the product of (i) 30
divided by the actual number of days in the applicable Interest Accrual Period
and (ii) the sum of (A) the weighted average of the Mortgage Interest Rates for
each Group I Mortgage Loan (in each case, less the applicable Expense Fee Rate)
then in effect on the beginning of the related Due Period and (B) Cap Payments,
if any plus Net Swap Receipts, if any, less Net Swap Payments if any, for that
Distribution Date, divided by the Stated Principal Balance of the Mortgage Loans
at the beginning of the related Due Period, multiplied by 12.
Loan Group II Cap: With respect to the Group II Mortgage Loans as
of any Distribution Date, a per annum rate equal to the product of (i) 30
divided by the actual number of days in the applicable Interest Accrual Period
and (ii) the sum of (A) the weighted average of the Mortgage Interest Rates for
each Group II Mortgage Loan (in each case, less the applicable Expense Fee Rate)
then in effect on the beginning of the related Due Period and (B) Cap Payments,
if any, plus Net Swap Receipts, if any, less Net Swap Payments if any, for that
Distribution Date, divided by the Stated Principal Balance of the Mortgage Loans
at the beginning of the related Due Period, multiplied by 12.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, at
any time, the ratio (expressed as a percentage) of the principal balance of the
Mortgage Loan as of the date of determination, to the Appraisal Value of the
related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank market.
Lower-Tier Interest Rate: As described in the Preliminary
Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class
LT-A-2A, Class LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class
LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7,
Class LT-M-8, Class LT-M-9, Class LT-B-1, Class LT-B-2, Class LT-IO, Class LT-3,
Class LT-Group I, Class LT-Group II, and Class LT-Accrual Interests as described
in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Master Servicer: Xxxxx Fargo, and if a successor master servicer
is appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Master Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage
Loan as of the first day of the related Due Period. Such fee shall be payable
monthly.
Master Servicing Fee Rate: With respect to any Mortgage Loan, a
per annum rate equal to 0.0035%.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: As defined in Section 2.01(b).
MERS Designated Mortgage Loan: Mortgage Loans for which the
Responsible Party has designated or will designate MERS as, and has taken or
will take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for the Responsible Party, in accordance with the MERS
Procedures Manual and (b) the Responsible Party has designated or will designate
the Trust as the Investor on the MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc., and its successors in
interest. 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, the Securities Administrator,
the Servicers and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note, including
all riders thereto.
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 this Agreement, each Mortgage Loan originally sold and subject to this
Agreement being identified on the Mortgage Loan Schedule, which Mortgage Loan
includes, without limitation, the Mortgage File, the Custodial File, the
Servicing File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
Prepayment Premiums and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents pertaining
to each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Securities Administrator on the Closing Date and referred to on Schedule I,
such schedule setting forth the following information with respect to each
Mortgage Loan as of the Cut-off Date: (1) the Responsible Party's Mortgage Loan
identifying number; (2) the Mortgagor's name; (3) the street address of the
Mortgaged Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or investment
property; (5) the number and type of residential units constituting the
Mortgaged Property (i.e., a single family residence, a 2-4 family residence, a
unit in a condominium project or a unit in a planned unit development or a
manufactured housing unit); (6) the original months to maturity or the remaining
months to maturity from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule; (7) with respect to First
Lien Mortgage Loans, the Loan-to-Value Ratio at origination, and with respect to
Second Lien Mortgage Loans, the Combined Loan-to-Value Ratio at origination; (8)
the Mortgage Interest Rate as of the Cut-off Date; (9) the date on which the
Scheduled Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, such Due Date; (10) the stated
maturity date; (11) the amount of the Scheduled Payment as of the Cut-off Date;
(12) the last payment date on which a Scheduled Payment was actually applied to
pay interest and the outstanding principal balance; (13) the original principal
amount of the Mortgage Loan; (14) the principal balance of the Mortgage Loan as
of the close of business on the Cut-off Date, after deduction of payments of
principal due and collected on or before the Cut-off Date; (15) with respect to
Adjustable-Rate Mortgage Loans, the Adjustment Date; (16) with respect to
Adjustable-Rate Mortgage Loans, the Gross Margin; (17) with respect to
Adjustable-Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (18) with respect to Adjustable-Rate Mortgage Loans, a code
indicating the type of Index; (19) with respect to Adjustable-Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Cap under the terms of the Mortgage
Note; (20) with respect to Adjustable-Rate Mortgage Loans, the Periodic Mortgage
Interest Rate Floor under the terms of the Mortgage Note; (21) the type of
Mortgage Loan (i.e., fixed-rate, adjustable-rate, first lien, second lien); (22)
a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full documentation, limited documentation or stated income); (24)
the loan credit classification (as described in the Underwriting Guidelines);
(25) whether such Mortgage Loan provides for a Prepayment Premium; (26) the
Prepayment Premium period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score) at origination;
(30) the date of origination; (31) the date of the purchase of the Mortgage
Loan, if applicable; (32) a code indicating whether the Mortgage Loan is
assumable; (33) the Mortgage Interest Rate adjustment period; (34) the Mortgage
Interest Rate floor; (35) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (36) a code indicating whether the Mortgage
Loan has been modified; (37) the one-year payment history; (38) the Due Date for
the first Scheduled Payment; (39) the original Scheduled Payment due; (40) with
respect to the related Mortgagor, the debt-to-income ratio; (41) the Appraised
Value of the Mortgaged Property; (42) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (43) whether the Mortgage Loan is covered by PMI policy and
name of insurer; (44) a code indicating whether the Mortgage Loan is a Group I
Mortgage Loan or a Group II Mortgage Loan; (45) a code indicating if a Mortgage
Loan is or has had a 30 Day Delinquency; (46) a code indicating if the Mortgage
Loan is an Interest Only Mortgage Loan; (47) a code indicating whether such
Mortgage Loan is a Home Loan; (48) the Original Purchase Date and (49) with
respect to each MERS Designated Mortgage Loan, the MERS identification number.
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.
Mortgage Note: The note or other evidence of the indebtedness of
a Mortgagor under a Mortgage Loan, including all riders thereto.
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(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the
amount remaining for distribution pursuant to Section 4.02(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 for such
Distribution Date exceeds the sum of the Compensating Interest payments made
with respect to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) payable by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed
by some or all of the Class X and Class P Certificates that are rated by one or
more Rating Agencies.
NIM Trustee: The trustee for the NIM Securities.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect
to which any portion of a Scheduled Payment is, as of the last day of the prior
Due Period, three months or more delinquent, and each REO Property.
Non-Permitted Transferee: As defined in Section 8.11(e).
Nonrecoverable P&I Advance: Any P&I 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 applicable Servicer, the Master Servicer or
any successor Master Servicer including the Trustee, will not or, in the case of
a proposed P&I 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 Advances
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 applicable Servicer,
the Master Servicer or any successor Master Servicer including the Trustee, 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.
Non-Rule 144A Investment Letter: As defined in Section 5.02(b).
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 an officer of any
Servicer or the Master Servicer, as applicable, with responsibility for the
servicing of the Mortgage Loans required to be serviced by such Servicer and
listed on a list delivered to the Trustee and Securities Administrator pursuant
to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for a Servicer or a Subservicer, reasonably acceptable to the
Trustee and/or the Securities Administrator; provided, that any Opinion of
Counsel relating to (a) qualification of any Trust REMIC as a REMIC or (b)
compliance with the REMIC Provisions, must (unless otherwise stated in such
Opinion of Counsel) be an opinion of counsel who (i) is in fact independent of
such Servicer or the Master Servicer of the Mortgage Loans, (ii) does not have
any material direct or indirect financial interest in such Servicer or the
Master Servicer of the Mortgage Loans or in an Affiliate of such Servicer and
(iii) is not connected with such 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% or less of the Cut-off Date Pool
Principal Balance.
Original Purchase Date: With respect to any Mortgage Loan, the
date on which the Responsible Party sold such Mortgage Loan to the Sponsor
pursuant to the Purchase Agreement.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled 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.
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.
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 LIBOR Certificates and the Residual Certificates as of such
Distribution Date (after giving effect to the payment of the Principal
Remittance Amount on such Certificates on such Distribution Date).
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 Advance: As to any Mortgage Loan or REO Property, any advance
made by the applicable Servicer in respect of any Remittance Date representing
the aggregate of all payments of principal and interest, net of the Servicing
Fee, that were due during the related Due Period on the Mortgage Loans and that
were delinquent on the related Remittance Date, plus certain amounts
representing assumed payments not covered by any current net income on the
Mortgaged Properties acquired by foreclosure or deed-in-lieu of foreclosure as
determined pursuant to Section 4.01(a).
Pass-Through Margin: Except as set forth in the following
sentence, with respect to each Class of LIBOR Certificates, the following
percentages: Class A-1 Certificates, 0.130%; Class A-2A Certificates, 0.050%;
Class A-2B Certificates, 0.100%; Class A-2C Certificates, 0.150%; Class A-2D
Certificates, 0.230%; Class M-1 Certificates, 0.240%; Class M-2 Certificates,
0.270%; Class M-3 Certificates, 0.300%; Class M-4 Certificates, 0.370%; Class
M-5 Certificates, 0.390%; Class M-6 Certificates, 0.450%; Class M-7
Certificates, 0.950%; Class M-8 Certificates, 1.450%; Class M-9 Certificates,
2.500%; Class B-1 Certificates, 2.500%; and Class B-2 Certificates, 2.500%. On
the first possible Optional Termination Date, the Pass-Through Margins shall
increase to: Class A-1 Certificates, 0.260%; Class A-2A Certificates, 0.100%;
Class A-2B Certificates, 0.200%; Class A-2C Certificates, 0.300%; Class A-2D
Certificates, 0.460%; Class M-1 Certificates, 0.360%; Class M-2 Certificates,
0.405%; Class M-3 Certificates, 0.450%; Class M-4 Certificates, 0.555%; Class
M-5 Certificates, 0.585%; Class M-6 Certificates, 0.675%; Class M-7
Certificates, 1.425%; Class M-8 Certificates, 2.175%; Class M-9 Certificates,
3.750%; Class B-1 Certificates, 3.750%; and Class B-2 Certificates, 3.750%.
Pass-Through Rate: For each Class of Regular Certificates, each
Pooling-Tier REMIC-1 Regular Interest, each Pooling-Tier REMIC-2 Regular
Interest, each Lower-Tier Regular Interest, each Upper-Tier Regular Interest and
each Class X REMIC Regular Interest, the per annum rate set forth or calculated
in the manner described in the Preliminary Statement.
PCAOB: The Public Company Accounting Oversight Board.
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.
Periodic Mortgage Interest Rate Cap: With respect to each
Adjustable-Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute maximum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Cap for each Adjustable-Rate Mortgage Loan is the rate set forth on the Mortgage
Loan Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Adjustable-Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute minimum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Floor for each Adjustable-Rate Mortgage Loan is the rate set forth on the
Mortgage Loan Schedule.
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 any 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 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated "P-1" by Moody's, "A-1+"
by Standard & Poor's and "F1+" by Fitch (in each case, to the extent
they are designated as Rating Agencies in the Preliminary Statement);
(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 30 days after the date of
acquisition thereof) that is rated by each Rating Agency that rates such
securities in its highest short-term unsecured debt rating available at
the time of such investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Securities Administrator or an Affiliate
thereof, that have been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by
Standard & Poor's and at least "AA" by Fitch (in each case, to the
extent they are designated as Rating Agencies in the Preliminary
Statement and such funds are so rated by such Rating Agency); and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or
"AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Securities
Administrator Float Period), only the obligations or securities (or instruments
which invest in the obligations or securities) specified in clause (i) above
shall constitute Permitted Investments.
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, or a U.S. Person treated as a partnership for
federal income tax purposes, any direct or indirect beneficial owner of which
(other than through a U.S. corporation) is (or is permitted to be under the
related partnership agreement) a non-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 Xxxxxxx 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.
Plan: As defined in Section 5.02(b).
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.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Loan Group I WAC Rate: With respect to the
Group I Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Loan Group II WAC Rate: With respect to the
Group II Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Prepayment Interest Shortfall: With respect to any Distribution
Date, the sum of, for each Mortgage Loan that was, during the related Prepayment
Period, the subject of a Principal Prepayment that was applied by the applicable
Servicer to reduce the outstanding principal balance of such Mortgage Loan on a
date preceding the Due Date in the succeeding Prepayment Period, an amount equal
to the product of (a) the Mortgage Interest Rate net of the 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 Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
calendar month preceding the calendar month in which such Distribution Date
occurs.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by any Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any voluntary Principal Prepayment pursuant to the terms of the
related Mortgage Note.
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, excluding
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 Remittance Amount: With respect to any Distribution
Date, the amount equal to the sum of the following amounts (without duplication)
with respect to the related Due Period: (i) each Scheduled Payment of principal
on a Mortgage Loan due during such Due Period and received by the applicable
Servicer on or prior to the related Determination Date or advanced by the
applicable Servicer for the related Remittance Date, (ii) all Principal
Prepayments received during the related Prepayment Period, (iii) all Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceeds on the Mortgage Loans
allocable to principal actually collected by the applicable Servicer during the
related Prepayment Period, (iv) the portion of the Repurchase Price allocable to
principal with respect to each Deleted Mortgage Loan, the repurchase obligation
for which arose during the related Prepayment Period, that was repurchased
during the period from the prior Distribution Date through the Remittance Date
for the current Distribution Date, (v) the portion of all Substitution
Adjustment Amounts allocable to principal with respect to the substitutions of
Mortgage Loans that occur during the calendar month in which such Distribution
Date occurs, and (vi) the allocable portion of the proceeds received with
respect to the termination of the Trust Fund pursuant to clause (a) of Section
9.01 (to the extent such proceeds relate to principal).
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as
amended, and all applicable regulations promulgated thereunder.
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated February
15, 2007, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Second Amended and Restated Flow Mortgage
Loan Purchase and Warranties Agreement, dated as of May 1, 2006, between the
Sponsor and the Responsible Party.
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, the Securities
Administrator, the Trustee and the Servicers.
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 applicable Servicer in connection
with the liquidation of such Liquidated Mortgage Loan and net of the amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date and any Class
of Certificates, the close of business on the last Business Day of the related
Interest Accrual Period; provided, however, that for any Definitive Certificate,
the Record Date shall be the close of business on the last Business Day of the
month preceding the month in which the applicable 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. ss.ss.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. 1,506-1,631 (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, or any similar state or
local statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 1:30 PM New York City Time on the Business Day immediately preceding such
Distribution Date.
REO Disposition: The final sale by the applicable Servicer of any
REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.17 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement Swap Provider Payment: Any payments that have been
received by the Trust as a result of entering into a replacement interest rate
swap agreement following an Additional Termination Event described in Part
5(n)(iii) of the Schedule to the Interest Rate Swap Agreement.
Reportable Event: As defined in Section 8.12(g).
Reporting Date: The 10th day of each calendar month in which a
Distribution Date occurs, or the immediately following Business Day if the 10th
is not a Business Day.
Representations and Warranties Agreement: The Representations and
Warranties Agreement, dated as of February 20, 2007, by and between the
Depositor and the Sponsor, a copy of which is attached hereto as Exhibit S.
Repurchase Price: With respect to any Mortgage Loan, an amount
equal to the sum of (i) the unpaid principal balance of such Mortgage Loan as of
the date of repurchase, (ii) interest on such unpaid principal balance of such
Mortgage Loan at the Mortgage Interest Rate from the last date through which
interest has been paid and distributed to the Securities Administrator to the
date of repurchase, (iii) all unreimbursed Servicing Advances, (iv) all expenses
incurred by the applicable Servicer, the Master Servicer, the Trust or the
Trustee, as the case may be, in respect of a breach or defect, including,
without limitation, expenses arising out of any Servicer's, the Master
Servicer's or the Trustee's, as the case may be, enforcement of the Responsible
Party's repurchase obligations, to the extent not included in clause (iii), and
(v) any costs and damages incurred by the Trust in connection with any violation
by such Mortgage Loan of any predatory lending law or abusive lending law.
Request for Release: The Request for Release submitted by the
applicable Servicer to the Custodian substantially in the form of Exhibit L.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, the
Master Servicer, or the Securities Administrator, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, any
associate assigned, with respect to the Trustee, to the Global Securities and
Trust Services Group (or successor group) or any other officer of the Trustee,
the Master Servicer or the Securities Administrator 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.
Responsible Party: NC Capital Corporation, a California
corporation, and its successors in interest.
Rule 144A Letter: As defined in Section 5.02(b).
Sarbanes Certification: As defined in Section 8.12(c).
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan due on any Due Date allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified herein, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second
lien Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo, and its successors in
interest, if any, and, if a successor securities administrator is appointed
hereunder, such successor.
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Business Day immediately preceding such Distribution
Date and ending on such Distribution Date.
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
distribution of the Principal Distribution Amount, including any principal
payments on those Classes of Certificates from the Supplemental Interest Trust,
for such Distribution Date) by (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 48.90%.
Sequential Class M Certificates: As specified in the Preliminary
Statement.
Sequential Class M Principal Distribution Amount: With respect to
any Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances 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 aggregate Class Certificate Balance of the Sequential Class M
Certificates immediately prior to such Distribution Date, over (ii) the lesser
of (A) the product of (x) 72.00% 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.
Servicer: When the term "Servicer" is used in this Agreement
prior to the Servicing Transfer Date, New Century, and on and after the
Servicing Transfer Date, Avelo, unless the context otherwise requires.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicer's Assignee: As defined in Section 12.07.
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the applicable Servicer in the
performance of its servicing obligations in connection with a default,
delinquency or other unanticipated event, including, but not limited to, the
cost of (i) the preservation, restoration, inspection and protection of a
Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures and litigation, in respect of a particular Mortgage Loan, (iii) the
management (including reasonable fees in connection therewith) and liquidation
of any REO Property and (iv) the performance of its obligations under Sections
3.01, 3.09, 3.13 and 3.15. None of the Servicers shall be required to make any
Nonrecoverable Servicing Advances.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit T
hereto.
Servicing Fee: With respect to each Servicer, each Mortgage Loan
serviced by such Servicer and for any Distribution Date, an amount equal to the
product of (i) one-twelfth of the Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan as of the first day of the related Due
Period. Such fee shall be payable monthly. The Servicing Fee is payable solely
from the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds
received with respect to REO Properties, to the extent permitted by Section
3.11) of such Scheduled Payment collected by such Servicer or as otherwise
provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the applicable Servicer consisting of originals or copies of all
documents in the Mortgage File which are not delivered to the Custodian in the
Custodial File and copies of the Mortgage Loan Documents set forth in Exhibit M
hereto.
Servicing Function Participant: As defined in Section 3.23(a).
Servicing Officer: Any officer of any Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Master Servicer and the Trustee by such Servicer on the Closing Date
pursuant to this Agreement, as such list may from time to time be amended.
Servicing Rights: Any and all of the following: (a) all rights
and obligations to service the Mortgage Loans; (b) any compensation for
servicing the Mortgage Loans; (c) any late fees, penalties or similar payments
with respect to the Mortgage Loans (other than prepayment penalties); (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights; (e) any interest on
Escrow Accounts allowed by law or other similar payments with respect to the
Mortgage Loans and any amounts actually collected with respect thereto; (f) all
accounts and other rights to payment related to any of the property described in
this paragraph; (g) the right to possess and use any and all servicing files,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans to the extent relating to the past, present or prospective
servicing of the Mortgage Loans; and (h) all rights, powers and privileges
incident to any of the foregoing.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Master Servicer or Trustee in connection with the
transfer of servicing from a terminated Servicer, including, without limitation,
any such costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Master Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Master Servicer
(or any successor Servicer appointed pursuant to Section 7.02) to service the
Mortgage Loans properly and effectively.
Servicing Transfer Date: With respect to each applicable Mortgage
Loan, the date previously identified in writing to the Securities Administrator
and the related Servicer by the Depositor or its designee, on which servicing of
the applicable Mortgage Loans will be transferred to Avelo.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect
to which any portion of a Scheduled Payment is, as of the last day of the prior
Due Period, two months or more delinquent, each Mortgage Loan in foreclosure,
each REO Property and each Mortgage Loan for which the Mortgagor has filed for
bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date,
an amount equal to 2.15% of the Cut-off Date Pool Principal Balance. On and
after the Stepdown Date, an amount equal to 4.30% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, subject,
until the Class Certificate Balance of each Class of LIBOR 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 exists,
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 will instead remain the same as the prior period's Specified
Overcollateralized Amount until the Distribution Date on which a Trigger Event
is no longer in effect. When the Class Certificate Balance of each Class of
LIBOR Certificates has been reduced to zero, the Specified Overcollateralized
Amount will thereafter equal zero.
Sponsor: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest.
SPV: As defined in Section 12.07.
Standard & Poor's: Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc., and its successors in interest. 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 - GSAMP Trust 2007-NC1, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Securities Administrator, the Servicers, the Custodian and the Trustee.
Standard & Poor's Glossary: Version 5.7 of the Standard & Poor's
LEVELS(R) Glossary.
Start-up Day: As defined in Section 2.05.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (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 by the related Servicer on or prior to the
related Determination Date or advanced by the related Servicer for the related
Remittance Date and any unscheduled principal payments and other unscheduled
principal collections received during the related 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 Prepayment Period shall be
zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
March 2010, and (ii) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
Subcontractor: Any third-party or Affiliated vendor,
subcontractor or other Person utilized by a Servicer, a Subservicer, the Trustee
or the Custodian, as applicable, 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.
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.
Subservicer: Any Person that services Mortgage Loans on behalf of
a Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by a Servicer under
this Agreement, with respect to some or all of the Mortgage Loans, that are
identified in Item 1122(d) of Regulation AB.
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan eligible to be
substituted by the Responsible Party for a Deleted Mortgage Loan pursuant to the
terms of the Purchase Agreement or the Representations and Warranties Agreement,
as applicable.
Substitution Adjustment Amount: Any amount required to be paid in
connection with a Substitute Mortgage Loan pursuant to the Purchase Agreement or
the Representations and Warranties Agreement, as applicable.
Supplemental Interest Trust: The corpus of a trust created
pursuant to Section 4.06 of this Agreement, consisting of the Interest Rate Cap
Agreement, the Interest Rate Swap Agreement, the Class IO Interest and the right
to receive Class IO Shortfalls, subject to the obligation to pay amounts
specified in Section 4.06.
Swap LIBOR: With respect to any Distribution Date (and the
related Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in
the Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the LIBOR Certificates
divided by (b) 30.
Swap Provider: Xxxxxxx Xxxxx Mitsui Marine Derivative Products,
L.P., a Delaware limited partnership, and its successors in interest, and any
successor swap provider under any replacement Interest Rate Swap Agreement.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the (i) Class RC, (ii) Class R
and (iii) Class RX Certificates designated as "tax matters person" of (i)
Pooling-Tier REMIC-1, (ii) Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC, and (iii) the Class X REMIC respectively, in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on
the Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 11.01.
30-Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on a Due Date, which failure
continues unremedied for a period of one month after the following Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an
amount equal to the excess if any, of (i) the interest on the Mortgage Loans
received by the Servicers on or prior to the related Determination Date or
advanced by the Servicers for the related Remittance Date (net of Expense Fees)
and plus any Cap Payments and Net Swap Receipts and less any Net Swap Payments
and Swap Termination Payments, other than Defaulted Swap Termination Payments
from Available Funds, for such Distribution Date, over (ii) the sum of the
interest payable to the LIBOR Certificates on such Distribution Date pursuant to
Section 4.02(a)(i), provided however that Net Swap Receipts and Cap Payments
shall be included in Total Monthly Excess Spread (and correspondingly any Extra
Principal Distribution Amount) only to the extent of current or prior Realized
Losses not previously reimbursed.
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).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) the quotient (expressed as a percentage) of (x) the rolling
three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (y) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 32.70% of the Senior Enhancement Percentage as of the last day of the
prior Due Period or (ii) the quotient (expressed as a percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Prepayment Period divided by (y) the Cut-off Date Pool
Principal Balance, exceeds the applicable percentages set forth below with
respect to such Distribution Date:
Distribution Dates Cumulative Realized Loss Percentage
-------------------------- ------------------------------------------------------------
March 2009 - February 2010 1.60% for the first month,
plus an additional 1/12th of 2.00% for each month thereafter
March 2010 - February 2011 3.60% for the first month,
plus an additional 1/12th of 2.00% for each month thereafter
March 2011 - February 2012 5.60% for the first month,
plus an additional 1/12th of 1.65% for each month thereafter
March 2012 - February 2013 7.25% for the first month,
plus an additional 1/12th of 0.85% for each month thereafter
March 2013 and thereafter 8.10%
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 with respect thereto
received on or 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
Collection Account, the Excess Reserve Fund Account, the Distribution Account
and all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Interest Rate
Swap Agreement; (v) the Interest Rate Cap Agreement; (vi) the Trust's rights
under the Representations and Warranties Agreement; (vii) the Supplemental
Interest Trust; and (viii) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing.
Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC-2,
the Lower-Tier REMIC, the Upper-Tier REMIC or the Class X REMIC, as applicable.
Trustee: LaSalle Bank National Association, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
Underwriter's Exemption: Any exemption listed in footnote 1 of,
and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to
the applicable Purchase Agreement.
Unpaid Interest Amount: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on the amount in clause
(a) above at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Upper-Tier Carry Forward Amount: With respect to each Class of
LIBOR Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Upper-Tier Interest Rate for the Class of Corresponding
Upper-Tier REMIC Regular Interest is based upon the Upper-Tier REMIC Loan Group
I Rate or Upper-Tier REMIC Loan Group II Rate, as and if applicable, or the
Upper-Tier REMIC WAC Rate, the excess, if any, of (i) the amount of interest
such Class of Upper-Tier Regular Interest would otherwise be entitled to receive
on such Distribution Date had such Upper-Tier REMIC Regular Interest not been
subject to the Upper-Tier REMIC Loan Group I Rate or Upper-Tier REMIC Loan Group
II Rate, as and if applicable, or the Upper-Tier REMIC WAC Rate, over (ii) the
amount of interest payable on such Class of Upper-Tier Regular Interest on such
Distribution Date taking into account the Upper-Tier REMIC Loan Group I Rate or
Upper-Tier REMIC Loan Group II Rate, as and if applicable, or the Upper-Tier
REMIC WAC Rate and (B) the Upper-Tier 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 Upper-Tier Interest Rate
for such Class of Certificates for such Distribution Date, without giving effect
to the Upper-Tier REMIC Loan Group I Rate or Upper-Tier REMIC Loan Group II
Rate, as and if applicable, or the Upper-Tier REMIC WAC Rate.
Upper-Tier Interest Rate: As described in the Preliminary
Statement.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC Loan Group I Rate: As described in the
Preliminary Statement.
Upper-Tier REMIC Loan Group II Rate: As described in the
Preliminary Statement.
Upper-Tier REMIC WAC Rate: For any Distribution Date, the
weighted average of the Lower-Tier Interest Rates on the Lower-Tier Regular
Interests (other than the Class LT-IO and Class LT-3 Interests), as of the first
day of the related Interest Accrual Period, weighted on the basis of the
Lower-Tier Principal Amounts of such Lower-Tier Regular Interests as of the
first day of the related Interest Accrual Period.
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, 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) 30 divided by
the actual number of days in the applicable Interest Accrual Period and (ii) the
sum of (A) the weighted average of the Adjusted Net Mortgage Interest Rates then
in effect at the beginning of the related Due Period on the Mortgage Loans, and
(B) Cap Payments, if any, plus Net Swap Receipts, if any, less Net Swap
Payments, if any, for that Distribution Date, divided by the Stated Principal
Balance of the Mortgage Loans at the beginning of the related Due Period,
multiplied by 12.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., a national banking
association, and its successors in interest.
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, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund. On the Closing Date, the Depositor shall pay,
without any right of reimbursement from the Trust, to the Cap Provider the
"Fixed Amount" (as defined in the related Interest Rate Cap Agreement) due and
payable to the Cap Provider pursuant to the terms of each Interest Rate Cap
Agreement.
(b) In connection with the transfer and assignment of each
Mortgage Loan, the Depositor has delivered or caused to be delivered to the
Custodian for the benefit of the Certificateholders the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 1.00% of the
Mortgage Notes for which there is a lost note affidavit and a copy of
the Mortgage Note) bearing all intervening endorsements, endorsed "Pay
to the order of _________, without recourse" and signed in the name of
the last endorsee. To the extent that there is no room on the face of
the Mortgage Notes for endorsements, the endorsement may be contained on
an allonge unless the Trustee (and Custodian) is advised by the
Responsible Party that state law does not so allow. If the Mortgage Loan
was acquired by the Responsible Party in a merger, the endorsement must
be by "[last endorsee], successor by merger to [name of predecessor]".
If the Mortgage Loan was acquired or originated by the last endorsee
while doing business under another name, the endorsement must be by
"[last endorsee], formerly known as [previous name]";
(ii) the original of any guarantee executed in connection with
the Mortgage Note, if provided;
(iii) the original Mortgage with evidence of recording thereon or
a certified true copy of such Mortgage submitted for recording. If in
connection with any Mortgage Loan, the Responsible Party cannot deliver
or cause to be delivered the original Mortgage with evidence of
recording thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost or
because such public recording office retains the original recorded
Mortgage, the Responsible Party shall deliver or cause to be delivered
to the Custodian, a photocopy of such Mortgage, together with (A) in the
case of a delay caused by the public recording office, an officer's
certificate of (or certified by) the Responsible Party (or certified by
the title company, escrow agent, or closing attorney) stating that such
Mortgage has been dispatched to the appropriate public recording office
for recordation and that the original recorded Mortgage or a copy of
such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Responsible
Party, or (B) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage
is lost after recordation in a public recording office, a copy of such
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon or a
certified true copy of such agreement submitted for recording;
(v) except with respect to each MERS Designated Mortgage Loan,
the original Assignment of Mortgage for each Mortgage Loan endorsed in
blank and in recordable form;
(vi) the originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the originator (or
MERS with respect to each MERS Designated Mortgage Loan) to the last
endorsee with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or
has been lost or if such public recording office retains the original
recorded Assignments of Mortgage, the Responsible Party shall deliver or
cause to be delivered to the Custodian, a photocopy of such intervening
assignment, together with (A) in the case of a delay caused by the
public recording office, an officer's certificate of (or certified by)
the Responsible Party (or certified by the title company, escrow agent,
or closing attorney) stating that such intervening Assignment of
Mortgage has been dispatched to the appropriate public recording office
for recordation and that such original recorded intervening Assignment
of Mortgage or a copy of such intervening Assignment of Mortgage
certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening Assignment of
Mortgage will be promptly delivered to the Custodian upon receipt
thereof by the Responsible Party, or (B) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is
lost after recordation in a public recording office, a copy of such
intervening assignment certified by such public recording office to be a
true and complete copy of the original recorded intervening assignment;
(vii) original or copy of mortgagee policy of title insurance or
a copy of the related policy binder or commitment for title certified
from the title insurance company; and;
(viii) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
The Depositor shall use reasonable efforts to assist the Trustee
in enforcing the obligations of the Sponsor under the Representations and
Warranties Agreement.
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event, for
purposes of the Closing Date, one or more lost note affidavits are provided to
cover multiple missing Mortgage Notes, the Responsible Party shall deliver to
the Custodian the applicable individual lost note affidavits within ten (10)
Business Days of the Closing Date. If the Responsible Party fails to deliver the
required individual lost note affidavits within the specified period of time,
the Trustee, upon receipt of notification of such failure from the Custodian or
exception report noting such missing document from the Custodian, shall notify
(which may be an exception report) the Responsible Party to take such remedial
actions, including, without limitation, the repurchase by the Responsible Party
of such Mortgage Loan within 30 days of the Closing Date.
The Responsible Party shall deliver to the 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.
If any Mortgage has been recorded in the name of Mortgage
Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of
Mortgage in favor of the Trustee will be required to be prepared or delivered
and instead, the Servicer shall take all reasonable actions as are necessary at
the expense of the Depositor to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for the purpose of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
From time to time, the Responsible Party shall forward, with
respect to the Mortgage Loans, to the Custodian additional original documents,
and additional documents evidencing an assumption, modification, consolidation
or extension of a Mortgage Loan approved by the Responsible Party, in accordance
with the terms of this Agreement. All such mortgage documents held by the
Custodian as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Responsible Party shall
deliver to the Custodian Assignments of Mortgages, in blank, for each Mortgage
Loan (except with respect to each MERS Designated Mortgage Loan). The
Responsible Party shall cause the Assignments of Mortgage with completed
recording information to be provided to the Depositor in a reasonably acceptable
manner. Subject to the following sentence, no later than thirty (30) Business
Days following the later of the Closing Date and the date of receipt by the
Depositor of the fully completed Assignments of Mortgages in recordable form,
the Depositor shall promptly submit or cause to be submitted for recording, at
the expense of the Responsible Party or the Depositor, at no expense to the
Trust Fund, the Servicers, the Custodian or the Trustee in the appropriate
public office for real property records, each Assignment of Mortgage referred to
in Section 2.01(b)(v). Notwithstanding the foregoing, however, for
administrative convenience and facilitation of servicing and to reduce closing
costs, the Assignments of Mortgage shall not be required to be completed and
submitted for recording with respect to any Mortgage Loan (i) if the Trustee and
each Rating Agency has received an opinion of counsel (which opinion should not
be an expense of the Trustee, any Servicer or the Trust Fund), satisfactory in
form and substance to the Trustee and each Rating Agency, to the effect that the
recordation of such Assignments of Mortgage in any specific jurisdiction is not
necessary to protect the Trustee's interest in the related Mortgage Note or (ii)
if such Mortgage Loan is a MERS Designated Mortgage Loan.. The Mortgage shall be
assigned by the Responsible Party at the Responsible Party's or the Depositor's
expense to "LaSalle Bank National Association, as trustee under the Pooling and
Servicing Agreement dated as of February 1, 2007, GSAMP Trust 2007-NC1. In the
event that any such assignment is lost or returned unrecorded because of a
defect therein, the Responsible Party shall promptly prepare a substitute
assignment to cure such defect and thereafter cause each such assignment to be
duly recorded at the expense of the Responsible Party or the Depositor.
On or prior to the Closing Date, the Depositor shall deliver to
the Custodian, the Trustee, the Master Servicer and the applicable Servicer a
copy of the Data Tape Information in electronic, machine readable medium in a
form mutually acceptable to the Depositor, the Custodian, the Master Servicer
and the Trustee. Within ten (10) Business Days of the Closing Date, the
Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the
Custodian, the Master Servicer, the Securities Administrator, the Trustee and
each Servicer, and the Custodian shall promptly, upon receipt of the Mortgage
Loan Schedule (or any other mortgage loan schedules received by the Custodian
from the Depositor), inform the Depositor of receipt thereof.
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 90 days following the Closing Date, and in the event
that the Responsible Party does not cure such failure within 30 days of
discovery or receipt of written notification of such failure from the Depositor,
the related Mortgage Loan shall, upon the request of the Depositor, be
repurchased by the Responsible Party at the price and in the manner specified in
Section 2.03 or repurchased by the Sponsor pursuant to the Representations and
Warranties Agreement, at the price and in the manner specified in the
Representations and Warranties Agreement. The foregoing repurchase obligation
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 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 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 Sponsor shall be deemed to have been satisfied upon delivery
by the Sponsor to the 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 "GSAMP Trust 2007-NC1" and
LaSalle Bank National Association is hereby appointed as Trustee in accordance
with the provisions of this Agreement. The Trust's fiscal year is the calendar
year.
(d) The Trust shall have the capacity, power and authority, and the Trustee on
behalf of the Trust is hereby authorized, to accept the sale, transfer,
assignment, set over and conveyance by the Depositor to the Trust of all the
right, title and interest of the Depositor in and to the Trust Fund (including,
without limitation, the Mortgage Loans, the Representations and Warranties
Agreement, the Interest Rate Cap Agreement and the Interest Rate Swap Agreement)
pursuant to Section 2.01(a). The parties hereby acknowledge and agree that the
execution and delivery of the Interest Rate Cap Agreement and the Interest Rate
Swap Agreement by the Securities Administrator on behalf of the Trust was
authorized and is hereby ratified and confirmed.
(e) It is agreed and understood by the Depositor and the Trustee that it is the
policy and intention of the Trust to acquire only Mortgage Loans meeting the
requirements set forth in this Agreement, including without limitation,
including the requirement that no Mortgage Loan be a High Cost Mortgage Loan and
no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 be
governed by the Georgia Fair Lending Act.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee, on behalf of the Trust, hereby accepts the Trust Fund and assumes
(solely in its capacity as Trustee hereunder) the obligations of the Depositor
under the Representations and Warranties Agreement from and after the Closing
Date and solely insofar as they relate to the Mortgage Loans. For avoidance of
doubt, the parties acknowledge that all obligations so assumed are obligations
of the Trust and, to the extent such obligations are payment or monetary
obligations, are payable solely from the Trust Fund, and not of the Trustee in
its individual capacity. The Custodian acknowledges receipt of the documents
identified in the Initial Certification in the form annexed hereto as Exhibit F,
subject to any exceptions listed on the exception report attached thereto, and
that the Custodian, on the Trustee's behalf, holds and will hold such documents
and the other documents delivered to the Custodian pursuant to Section 2.01, and
that the Custodian 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. The Custodian acknowledges that it will maintain possession
of the related Mortgage Notes in the State of California, unless otherwise
permitted by the Rating Agencies.
As a condition to the Closing, on the Closing Date, the Custodian
shall deliver via facsimile (with original to follow the next Business Day) to
the Depositor, the Trustee, the Master Servicer and the applicable Servicer 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 for each Mortgage Loan with any exceptions noted on the exception
report attached thereto. The Custodian shall not be responsible to verify the
validity, sufficiency or genuineness of any document in any Custodial File.
On the Closing Date, the Custodian shall ascertain that all
documents required to be reviewed by it are in its possession, and shall deliver
to the Depositor, the Trustee, the Master Servicer and the applicable Servicer
an Initial Certification, in the form annexed hereto as Exhibit F, and shall
deliver to the Depositor, the Trustee, the Master Servicer and such Servicer a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit G, within 90 days (or with respect to any Substitute Mortgage Loan
delivered to the Custodian, within 30 days after the receipt of the Mortgage
File by the Custodian) after the Closing Date to the effect that, as to each
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 reviewed by 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, the
information set forth in items (1), (2) and (13) of the Mortgage Loan Schedule
and items (1), (2) and (13) of the Data Tape Information respecting such
Mortgage Loan is correct; and (iv) each Mortgage Note has been endorsed as
provided in Section 2.01 of this Agreement. The Custodian shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
The 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 applicable Servicer shall promptly deliver to
the 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 such Servicer from time to time.
The Responsible Party shall deliver to the Servicer copies of all
trailing documents required to be included in the Custodial File at the same
time the original or certified copies thereof are delivered to the Custodian,
including but not limited to such documents as the title insurance policy and
any other Mortgage Loan Documents upon return from the public recording office.
The Responsible Party shall deliver such documents, at the Responsible Party's
expense, to the Servicer and in no event shall the Servicer be responsible for
any expenses relating to such delivery obligation.
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party, the Servicers and the Custodian (a) The Responsible Party
hereby makes the representations and warranties set forth in Schedule II hereto
to the Depositor, the Master Servicer, the Securities Administrator, the Trustee
and the Custodian as of the Closing Date. The Responsible Party hereby makes the
representations and warranties set forth in Schedule III hereto to the
Depositor, the Master Servicer, the Securities Administrator, the Trustee and
the Custodian as of the dates set forth in such Schedule. Avelo hereby makes the
representations and warranties set forth in Schedule IV hereto to the Depositor,
the Master Servicer, the Securities Administrator, the Trustee and the Custodian
as of the dates set forth in such Schedule. New Century hereby makes the
representations and warranties set forth in Schedule V hereto to the Depositor,
the Master Servicer, the Securities Administrator, the Trustee and the Custodian
as of the dates set forth in such Schedule. Deutsche Bank hereby makes the
representations and warranties set forth in Schedule VI hereto to the Depositor,
each Servicer, the Master Servicer, the Securities Administrator and the Trustee
as of the Closing Date.
(b) It is understood and agreed by each Servicer, the Responsible
Party and the Custodian that the representations and warranties set forth in
this Section 2.03 shall survive the transfer of the Mortgage Loans by the
Depositor to the Trustee, and shall inure to the benefit of the Depositor, the
Servicers and the Trustee notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination or
failure to examine any Mortgage File. Upon discovery by any of the Depositor,
the Responsible Party, the Master Servicer, the Securities Administrator, the
Trustee, the Custodian or each Servicer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
(c) Within 30 days of the earlier of either discovery by or
notice to the Responsible Party that any Mortgage Loan does not conform to the
requirements as determined in the Custodian's review of the related Custodial
File or within 60 days of the earlier of either discovery by or notice to the
Responsible Party of any breach of a representation or warranty set forth in
Section 2.03(a) that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein, the
Responsible Party shall use its best efforts to cause to be remedied a material
defect in a document constituting part of a Mortgage File or promptly to cure
such breach in all material respects and, if such defect or breach cannot be
remedied, the Responsible Party shall, at the Depositor's option as specified in
writing and provided to the Responsible Party and the Securities Administrator,
(i) if such 30 or 60 day period, as applicable, expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage
Loan") from the Trust Fund and substitute in its place a Substitute Mortgage
Loan, in the manner and subject to the conditions set forth in this Section
2.03, or (ii) at the Depositor's option, repurchase such Mortgage Loan at the
Repurchase Price; provided, however, that any such substitution pursuant to
clause (i) above shall not be effected prior to the delivery to the Custodian a
Request for Release substantially in the form of Exhibit L, and the Mortgage
File for any such Substitute Mortgage Loan. In the event that a breach shall
involve any representation or warranty set forth in Schedule II, and such breach
cannot be cured within 60 days of the earlier of either discovery by or notice
to the Responsible Party of such breach, all of the Mortgage Loans shall, at the
Depositor's option, be repurchased by the Responsible Party at the Repurchase
Price. Notwithstanding the foregoing, a breach (x) which causes a Mortgage Loan
not to constitute a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code or (y) by the Responsible Party of any of the
representations and warranties set forth in paragraphs (47), (49), (50), (51),
(53), (59), (60), (62) or (63) of Schedule II, each case, will be deemed
automatically to materially and adversely affect the value of such Mortgage Loan
and the interests of the Trustee and Certificateholders in such Mortgage Loan.
In the event that a Responsible Officer of the Trustee receives written notice
of a breach by the Responsible Party of any of the representations and
warranties set forth in paragraphs (47), (49), (50), (51), (53), (59), (60),
(62) or (63) of Schedule II, the Trustee shall give notice of such breach to the
Responsible Party and request the Responsible Party to repurchase the Mortgage
Loan at the Repurchase Price within 30 days of the Responsible Party's receipt
of such notice. The Responsible Party shall repurchase each such Deleted
Mortgage Loan within 30 days of the earlier of discovery or receipt of notice
with respect to each such Deleted Mortgage Loan.
(d) With respect to any Substitute Mortgage Loan or Loans, the
Responsible Party shall deliver to the Custodian for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution is permitted to be made in any calendar month
after the Determination Date for such month. Scheduled Payments due with respect
to Substitute Mortgage Loans in the Due Period of substitution shall not be part
of the Trust Fund and will be retained by the Responsible Party on the next
succeeding Distribution Date. For the Due Period of substitution, distributions
to Certificateholders will include the Scheduled Payment due on any Deleted
Mortgage Loan for such Due Period and thereafter the Responsible Party shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan.
(e) The Servicer shall, based on information provided by the
Responsible Party, amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Substitute Mortgage Loan or Loans and the Servicer shall
deliver the amended Mortgage Loan Schedule to the Custodian and the Trustee. The
Servicer shall have no liability with respect to the information provided by the
Responsible Party related to the Substitute Mortgage Loan. Upon such
substitution, the Substitute Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Responsible Party shall be
deemed to have made with respect to such Substitute Mortgage Loan or Loans, as
of the date of substitution, the representations and warranties made pursuant to
Section 2.03(b) with respect to such Mortgage Loan. Upon any such substitution
and the deposit to the Collection Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Custodian shall release the Mortgage File held for the benefit of
the Certificateholders relating to such Deleted Mortgage Loan to the Responsible
Party and shall execute and deliver at the Responsible Party's direction such
instruments of transfer or assignment prepared by the Responsible Party, in each
case without recourse, representation or warranty as shall be necessary to vest
title in the Responsible Party, or its designee, the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
(f) For any month in which the Responsible Party substitutes one
or more Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Servicer will determine the amount (if any) by which the aggregate unpaid
principal balance of all such Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of the scheduled principal portion of
the Scheduled Payments due in the Due Period of substitution). The amount of
such shortage (the "Substitution Adjustment Amount") plus, if the Responsible
Party is not the Servicer, an amount equal to the aggregate of any unreimbursed
Advances and Servicing Advances with respect to such Deleted Mortgage Loans
shall be deposited into the Collection Account by the Responsible Party on or
before the next Remittance Date.
(g) In addition to such repurchase obligation, the Responsible
Party shall indemnify the Depositor, its Affiliates, the Servicers, the Master
Servicer, the Securities Administrator and the Trustee and hold such parties
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach by the Responsible Party of any of
its representations and warranties contained in the Purchase Agreement or this
Agreement.
(h) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement or the Representations and Warranties Agreement, the
Repurchase Price thereof shall be deposited in the Collection Account by the
applicable Servicer pursuant to Section 3.10 on or before the next Remittance
Date and upon such deposit of the Repurchase Price, and receipt of a Request for
Release in the form of Exhibit L hereto, the Custodian shall release the related
Custodial File held for the benefit of the Certificateholders to such Person as
directed by such Servicer, and the Trustee, upon receipt of a copy of the
Request for Release from the Servicer, shall execute and deliver at such
Person's direction such instruments of transfer or assignment prepared by such
Person, in each case without recourse, as shall be necessary to transfer title
from the Trustee. It is understood and agreed that the obligation under this
Agreement of any Person to cure, repurchase or replace any Mortgage Loan as to
which a breach has occurred and is continuing together with satisfaction of any
related indemnification obligations shall constitute the sole remedy against
such Persons respecting such breach available to Certificateholders, the
Depositor, each Servicer, the Master Servicer, the Securities Administrator, the
Custodian or the Trustee on their behalf.
(i) In the event a Mortgage Loan is required to be repurchased
pursuant to paragraph M of the purchase price and terms agreements, dated
September 14, 2006, October 19, 2006 and November 7, 2006, respectively
(collectively, the "Terms Letters"), each between the Responsible Party and the
Sponsor, the Company shall pay to the Trust the Repurchase Price (as defined in
the Purchase Agreement), and the Responsible Party shall pay to the Sponsor the
amount by which the repurchase price set forth in Section O of each of the Terms
Letters, exceeds such Repurchase Price.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Custodial Files to the Custodian
for the benefit of the Certificateholders.
Section 2.04 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 2.05 REMIC Matters. The Preliminary Statement sets forth
the designations for federal income tax purposes of all interests created
hereby. The "Start-up Day" of each Trust REMIC for purposes of the REMIC
Provisions shall be the Closing Date. The "latest possible maturity date" of the
regular interests in each Trust REMIC is the Distribution Date in December 2046,
which is the Distribution Date in the month following the month in which the
latest maturity date of any Mortgage Loan occurs. Amounts distributable to the
Class X Certificates (prior to any reduction for any Basis Risk Payment or Swap
Termination Payment), exclusive of any amounts received from the Swap Provider,
shall be deemed paid from the Upper-Tier REMIC to the Class X REMIC in respect
of the Class UT-X Interest and the Class UT-IO Interest and then from the Class
X REMIC in respect of the Class X Interest and the Class IO Interest to the
Holders of the Class X Certificates prior to distribution of any Basis Risk
Payments to the LIBOR Certificates or Net Swap Payments or Swap Termination
Payments to the Swap Provider.
For federal income tax purposes, any amount distributed on the
LIBOR Certificates on any Distribution Date in excess of the amount
distributable on their Corresponding Class of Upper-Tier Regular Interest on
such Distribution Date shall be treated as having been paid from the Excess
Reserve Fund Account or the Supplemental Interest Trust, as applicable, and any
amount distributable on such Corresponding Class of Upper-Tier Regular Interest
on such Distribution Date in excess of the amount distributable on the
Corresponding Class of LIBOR 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 8.13.
Section 2.06 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Responsible Party,
the Trustee, the Master Servicer, the Securities Administrator and each Servicer
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) of 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;
(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.
It is understood and agreed that the representations, warranties
and covenants set forth in this Section 2.06 shall survive delivery of the
respective Custodial Files to the Custodian and shall inure to the benefit of
the Trustee and each Servicer.
Section 2.07 Enforcement of Obligations for Breach of Mortgage
Loan Representations. Upon discovery by any of the parties hereto of a breach of
a representation or warranty made by the Responsible Party or the Sponsor
pursuant to the Representations and Warranties Agreement, the party discovering
such breach shall give prompt written notice thereof to the other parties to
this Agreement and the Sponsor, as applicable. The Trustee shall take such
action, with the Depositor's consent, with respect to such breach under the this
Agreement or the Representations and Warranties Agreement, as applicable, as may
be necessary or appropriate to enforce the rights of the Trust with respect
thereto. 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 Trustee shall be entitled to be reimbursed therefor out of
the Collection Account.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, each Servicer shall service and administer the
related Mortgage Loans in accordance with the terms of this Agreement and the
respective Mortgage Loans, to the extent consistent with such terms, in
compliance with all applicable federal, state and local laws, and in the same
manner in which it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of practice
of mortgage lenders and loan servicers administering similar mortgage loans but
without regard to:
(i) any relationship that such Servicer, any Subservicer or any
Affiliate of such Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by such
Servicer or any Affiliate of such Servicer;
(iii) such Servicer's obligation to make P&I Advances or
Servicing Advances; or
(iv) such Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the foregoing, each Servicer shall
seek to maximize the timely and complete recovery of principal and interest on
the Mortgage Notes. Subject only to the above described servicing standards and
the terms of this Agreement and of the respective Mortgage Loans, each Servicer
shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each Servicer in
its own name or in the name of the Trustee, solely in its capacity as Trustee
for the Trust, or in the name of a Subservicer is hereby authorized and
empowered by the Trustee when the applicable Servicer believes it appropriate in
its best judgment in accordance with Accepted Servicing Practices, to execute
and deliver any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties and to institute
foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert
the ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and in the name of the Trust. Each Servicer
shall service and administer the Mortgage Loans in accordance with applicable
state and federal law and shall provide to the Mortgagors any reports required
to be provided to them thereby. Each Servicer shall also comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any standard hazard insurance policy. Subject to Section 3.16, the
Trustee shall execute, at the written request of a Servicer, and the Custodian
and/or the Trustee, as applicable, shall furnish to such Servicer and any
Subservicer such documents as are necessary or appropriate to enable such
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to each Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee and in the name of the Trust. The Trustee
shall execute a separate power of attorney in the form attached hereto as
Exhibit R in favor of each Servicer for the purposes described herein to the
extent necessary or desirable to enable each Servicer to perform its duties
hereunder. The Trustee shall not be liable for the actions of any Servicer or
any Subservicers under such powers of attorney.
Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor any Servicer shall, without the Trustee's
written consent: (i) initiate any action, suit or proceeding directly relating
to the servicing of the Mortgage Loan solely under the Trustee's name without
indicating the Master Servicer's or Servicer's, as applicable, representative
capacity (provided that such Servicer shall not be required to sign the Power of
Attorney in order to perform the functions enumerated therein), (ii) initiate
any other action, suit or proceeding not directly relating to the servicing of
any Mortgage Loan (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Seller for breaches of
representations and warranties) solely under the Trustee's name, (iii) engage
counsel to represent the Trustee in any action, suit or proceeding not directly
related to the servicing of any Mortgage Loan (including but not limited to
actions, suits or proceedings against Certificateholders, or against the
applicable Original Loan Seller for breaches of representations and warranties),
or (iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any action with the intent to cause,
and that actually causes, the Trustee to be registered to do business in any
state.
(b) Subject to Section 3.09(b), in accordance with Accepted
Servicing Practices, each Servicer shall advance or cause to be advanced funds
as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by a Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary, a
Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.01 and except for Servicing Advances) and none
of the Servicers shall (i) permit any modification with respect to any Mortgage
Loan that would change the Mortgage Interest Rate, reduce or increase the
principal balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (except for
(A) a reduction of interest or principal payments resulting from the application
of the Servicemembers Civil Relief Act or any similar state statutes or (B) as
provided in Section 3.07(a), if the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of such Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to
fail to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions after the start-up day" under the
REMIC Provisions, or (iii) except as provided in Section 3.07(a), waive any
Prepayment Premiums.
(d) Each Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release that
Servicer from the responsibilities or liabilities arising under this Agreement.
Section 3.02 Subservicing Agreements between a Servicer and
Subservicers. (a) Each Servicer may enter into subservicing agreements with
Subservicers, for the servicing and administration of the Mortgage Loans
("Subservicing Agreements"). Each Servicer represents and warrants to the other
parties hereto that no Subservicing Agreement is in effect as of the Closing
Date with respect to any Mortgage Loans required to be serviced by it hereunder.
Each Servicer shall give notice to the Depositor, the Master Servicer, the
Securities Administrator and the Custodian of any such Subservicer and
Subservicing Agreement, which notice shall contain all information (including
without limitation a copy of the Subservicing Agreement) reasonably necessary to
enable the Securities Administrator, pursuant to Section 8.12(g), to accurately
and timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act). During the period when reports are required to be filed for the
Trust under the Exchange Act, no Subservicing Agreement shall be effective until
30 days after such written notice is received by the Depositor, the Master
Servicer, the Custodian and the Securities Administrator and thereafter shall be
effective at the time the applicable Servicer and any Subservicer enter into any
such Subservicing Agreement. Neither the Securities Administrator nor the Master
Servicer shall be required to review or consent to such Subservicing Agreements
and shall have no liability in connection therewith.
(b) Each Subservicer shall be (i) authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law to enable
the Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
Each Servicer will examine each Subservicing Agreement and will be familiar with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. Each Servicer and the
respective Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to such Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. Each Servicer shall deliver to the
Trustee, the Master Servicer, the Securities Administrator and the Depositor
copies of all Subservicing Agreements, and any amendments or modifications
thereof, promptly upon such Servicer's execution and delivery of such
instruments.
(c) As part of its servicing activities hereunder, each Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee (solely in its individual capacity) and the
Certificateholders, shall enforce the obligations of each Subservicer engaged by
such Servicer under the related Subservicing Agreement, including, without
limitation, any obligation to make advances in respect of delinquent payments as
required by a Subservicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Subservicing
Agreements and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as such Servicer, in its good
faith business judgment, would require were it the owner of the related Mortgage
Loans. Each Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement, to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
(d) Each Servicer shall cause any Subservicer engaged by such
Servicer (or by any Subservicer) for the benefit of the Depositor, the Master
Servicer, the Securities Administrator and the Trustee to comply with the
provisions of this Section 3.02 and with Sections 3.22, 3.23, 6.02 and 6.05 of
this Agreement to the same extent as if such Subservicer were such Servicer, and
to provide the information required with respect to such Subservicer under
Section 8.12(g) of this Agreement. Each Servicer shall be responsible for
obtaining from each such Subservicer and delivering to applicable Persons any
servicer compliance statement required to be delivered by such Subservicer under
Section 3.22 and any assessment of compliance report and related accountant's
attestation required to be delivered by such Subservicer under Section 3.23, in
each case as and when required to be delivered.
(e) Subject to the conditions set forth in this Section 3.02(e),
each Servicer and any Subservicer engaged by such Servicer is permitted to
utilize one or more Subcontractors to perform certain of its obligations
hereunder. Such Servicer shall promptly upon request provide to the Depositor or
the Master Servicer a written description (in form and substance satisfactory to
the Depositor) of the role and function of each Subcontractor utilized by such
Servicer or any such Subservicer, specifying, not later than the date specified
for delivery of the annual report on assessment of compliance set forth in
Section 3.23(b) (i) the identity of each such Subcontractor, if any, that is
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (ii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (i) of this paragraph. As a condition to the utilization by
such Servicer or any such Subservicer of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, such Servicer shall cause any such Subcontractor used by such
Servicer (or by any such Subservicer) for the benefit of the Depositor, the
Master Servicer, the Securities Administrator and the Trustee to comply with the
provisions of Section 3.23 of this Agreement to the same extent as if such
Subcontractor were such Servicer. Such Servicer shall be responsible for
obtaining from each such Subcontractor and delivering to the applicable Persons
any assessment of compliance report and related accountant's attestation
required to be delivered by such Subcontractor under Section 3.23, in each case
as and when required to be delivered.
Notwithstanding anything in this Agreement to the contrary, if a
Servicer engages a Subcontractor in connection with the performance of any of
its duties under this Agreement, such Servicer shall be responsible for
determining whether such Subcontractor is a "servicer" within the meaning of
Item 1101 of Regulation AB and whether any such affiliate or third-party vendor
meets the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB. If a
Servicer determines, pursuant to the preceding sentence, that such Subcontractor
is a "servicer" within the meaning of Item 1101 of Regulation AB and meets the
criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB, then such
Subcontractor shall be deemed to be a Subservicer for purposes of this Agreement
(and shall not be required to meet the requirements of a Subservicer set forth
in Section 3.02(b)), the engagement of such Subservicer shall not be effective
unless and until notice is given pursuant to Section 3.02(a) and such Servicer
shall comply with Section 3.02(d) with respect thereto.
Section 3.03 Successor Subservicers. Each Servicer shall be
entitled to terminate any Subservicing Agreement and the rights and obligations
of any Subservicer pursuant to any Subservicing Agreement in accordance with the
terms and conditions of such Subservicing Agreement; provided, however, that
during the period when reports are required to be filed for the Trust under the
Exchange Act, the termination, resignation or removal of a Subservicer shall not
be effective until 30 days after written notice is received by each of the
Depositor, the Master Servicer and the Securities Administrator that contains
all information reasonably necessary to enable the Securities Administrator,
pursuant to Section 8.12(g), to accurately and timely report the event under
Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the
Exchange Act are required to be filed under the Exchange Act). In the event of
termination of any Subservicer, all servicing obligations of such Subservicer
shall be assumed simultaneously by the applicable Servicer without any act or
deed on the part of such Subservicer or such Servicer, and such Servicer either
shall service directly the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies under
Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor or the Master Servicer
without fee, in accordance with the terms of this Agreement, in the event that
the Servicer shall, for any reason, no longer be a Servicer (including
termination due to an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between a Servicer and a Subservicer or reference to
actions taken through a Subservicer or otherwise, such Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
such Servicer alone were servicing and administering such Mortgage Loans. Each
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of such Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers,
the Trustee and the Master Servicer. Any Subservicing Agreement that may be
entered into and any transactions or services relating to the Mortgage Loans
involving a Subservicer in its capacity as such shall be deemed to be between
the Subservicer and the related Servicer alone, and neither the Trustee nor the
Master Servicer (or any successor to such Servicer) shall be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Subservicer except as set forth in Section 3.06. Each
Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing Agreements
by Master Servicer. In the event a Servicer at any time shall for any reason no
longer be a Servicer (including by reason of the occurrence of an Event of
Default), the Master Servicer, or its designee, or the successor Servicer if the
successor Servicer is not the Master Servicer, shall thereupon assume all of the
rights and obligations of such Servicer under each Subservicing Agreement that
such Servicer may have entered into, with copies thereof provided to the Master
Servicer prior to the Master Servicer assuming such rights and obligations,
unless the Master Servicer elects to terminate any Subservicing Agreement in
accordance with its terms as provided in Section 3.03.
Upon such assumption, the Master Servicer, its designee or the
successor servicer shall be deemed, subject to Section 3.03, to have assumed all
of such Servicer's interest therein and to have replaced such Servicer as a
party to each Subservicing Agreement to the same extent as if each Subservicing
Agreement had been assigned to the assuming party, except that (i) such Servicer
shall not thereby be relieved of any liability or obligations under any
Subservicing Agreement that arose before it ceased to be a Servicer and (ii)
none of the Depositor, the Master Servicer, the Trustee, their designees or any
successor Servicer shall be deemed to have assumed any liability or obligation
of such Servicer that arose before it ceased to be a Servicer.
Each Servicer at its expense shall, upon request of the Master
Servicer, deliver to the assuming party all documents and records relating to
each Subservicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a)
Each Servicer shall make reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans and shall, to the extent
such procedures shall be consistent with this Agreement and the terms and
provisions of any applicable Insurance Policy, follow such collection procedures
as it would follow with respect to mortgage loans comparable to the Mortgage
Loans and held for its own account. Consistent with the foregoing and Accepted
Servicing Practices, each Servicer may (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the Due Dates for the Scheduled
Payments due on a Mortgage Note for a period of not greater than 180 days;
provided, that any extension pursuant to clause (ii) above shall not affect the
amortization schedule of any Mortgage Loan for purposes of any computation
hereunder, except as provided below. In the event of any such arrangement
pursuant to clause (ii) above, the applicable Servicer shall make timely
advances on such Mortgage Loan during such extension pursuant to Section 4.01
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to Section 4.01(d)
pursuant to which such Servicer shall not be required to make any such advances
that are Nonrecoverable P&I Advances. Notwithstanding anything in this agreement
to the contrary, in the event that any Mortgage Loan is in default or, in the
judgment of such Servicer, such default is reasonably foreseeable, such
Servicer, consistent with the standards set forth in Section 3.01, may also
waive, modify or vary any term of such Mortgage Loan (including modifications
that would change the Mortgage Interest Rate, forgive the payment of principal
or interest, extend the final maturity date of such Mortgage Loan or waive, in
whole or in part, a Prepayment Premium), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements or indulgences collectively referred to herein as
"Forbearance"); provided, however, that the final maturity date of any Mortgage
Loan may not be extended beyond the Final Scheduled Distribution Date for the
LIBOR Certificates. The applicable Servicer's analysis supporting any
Forbearance and the conclusion that any Forbearance meets the standards of
Section 3.01 shall be reflected in writing in the applicable Servicing File.
Notwithstanding the foregoing, a Servicer may waive, in whole or in part, a
Prepayment Premium only under the following circumstances: (i) such waiver
relates to a default or a reasonably foreseeable default and would, in the
reasonable judgment of the applicable Servicer, maximize recovery of total
proceeds taking into account the value of such Prepayment Premium and the
related Mortgage Loan; (ii) collection of such Prepayment Premium is limited by
or is not permitted to be collected by applicable federal, state or local law or
regulation; (iii) the collection of such Prepayment Premium would be considered
"predatory" pursuant to written guidance published or issued by any applicable
federal, state or local regulatory authority acting in its official capacity and
having jurisdiction over such matters; (iv) the enforceability thereof is
limited (1) by bankruptcy, insolvency, moratorium, receivership or other similar
laws relating to creditors' rights generally or (2) due to acceleration in
connection with a foreclosure or other involuntary payment; or (v) if the
applicable Servicer has not been provided with information sufficient to enable
it to collect the Prepayment Premium; provided, however, that with respect to
any Group I Mortgage Loan, the Servicer shall waive such Prepayment Premium if
the Mortgage Loan is accelerated or paid-off in connection with the workout of a
delinquent Mortgage Loan or due to the related Mortgagor's default,
notwithstanding that the terms of the Mortgage Loan or federal or state law
might permit the imposition of such Prepayment Premium. If a Prepayment Premium
is waived other than as permitted in this Section 3.07(a), then the applicable
Servicer is required to pay the amount of such waived Prepayment Premium, for
the benefit of the Holders of the Class P Certificates, by depositing such
amount into the Collection Account as soon as possible after the date of payoff,
but in no event later than five (5) Business Days from such date.
(b) The applicable Servicer shall give notice to the Master
Servicer, the Securities Administrator, the Trustee, each Rating Agency and the
Depositor of any proposed change of the location of the Collection Account
within a reasonable period of time prior to any change thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more
segregated accounts (collectively, the "Subservicing Account"). The Subservicing
Account shall be an Eligible Account and shall otherwise be acceptable to the
related Servicer. The Subservicer shall deposit in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Subservicer's receipt thereof, all proceeds of Mortgage Loans received by
the Subservicer less its servicing compensation to the extent permitted by the
Subservicing Agreement, and shall thereafter deposit such amounts in the
Subservicing Account, in no event more than two Business Days after the deposit
of such funds into the clearing account. The Subservicer shall thereafter
deposit such proceeds in the Collection Account or remit such proceeds to the
applicable Servicer for deposit in the Collection Account not later than two
Business Days after the deposit of such amounts in the Subservicing Account. For
purposes of this Agreement, such Servicer shall be deemed to have received
payments on the Mortgage Loans when the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) Each Servicer shall ensure that each First Lien Mortgage
Loan shall be covered by a paid-in-full, life-of-the-loan tax service contract
(each, a "Tax Service Contract"); provided, that the Responsible Party
transferred a fully transferable Tax Service Contract to such Servicer at no
expense to that Servicer. Each Tax Service Contract shall be assigned to the
Master Servicer (or successor servicer), as applicable, at the applicable
Servicer's expense in the event that a Servicer is terminated as Servicer of the
related Mortgage Loan.
(b) To the extent that the services described in this paragraph
(b) are not otherwise provided pursuant to the Tax Service Contracts described
in paragraph (a) above, each Servicer undertakes to perform such functions. To
the extent the related Mortgage Loan provides for Escrow Payments, the related
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated accounts (the "Escrow Accounts"), which shall
be Eligible Accounts. Each Servicer shall deposit in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
such Servicer's receipt thereof, all collections from the Mortgagors (or related
advances from Subservicers) for the payment of taxes, assessments, hazard
insurance premiums and comparable items for the account of the Mortgagors
("Escrow Payments") collected on account of the Mortgage Loans and shall
thereafter deposit such Escrow Payments in the Escrow Accounts, in no event more
than two Business Days after the deposit of such funds in the clearing account,
for the purpose of effecting the payment of any such items as required under the
terms of this Agreement. Withdrawals of amounts from an Escrow Account may be
made only to (i) effect payment of taxes, assessments, hazard insurance
premiums, and comparable items, (ii) reimburse such Servicer (or a Subservicer
to the extent provided in the related Subservicing Agreement) out of related
collections for any advances made pursuant to Section 3.01 (with respect to
taxes and assessments) and Section 3.13 (with respect to hazard insurance),
(iii) refund to Mortgagors any sums as may be determined to be overages, (iv)
pay interest, if required and as described below, to Mortgagors on balances in
the Escrow Account, (v) clear and terminate the Escrow Account at the
termination of such Servicer's obligations and responsibilities in respect of
the Mortgage Loans under this Agreement, or (vi) recover amounts deposited in
error. As part of its servicing duties, each Servicer or Subservicer shall pay
to the Mortgagors interest on funds in Escrow Accounts, to the extent required
by law and, to the extent that interest earned on funds in the Escrow Accounts
is insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. To the extent that a Mortgage does not provide for
Escrow Payments, the applicable Servicer shall determine whether any such
payments are made by the Mortgagor in a manner and at a time that is necessary
to avoid the loss of the Mortgaged Property due to a tax sale or the foreclosure
as a result of a tax lien. If any such payment has not been made and the
applicable Servicer receives notice of a tax lien with respect to the Mortgage
Loan being imposed, such Servicer will, promptly and to the extent required to
avoid loss of the Mortgaged Property, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property. The applicable
Servicer assumes full responsibility for the payment of all such bills within
such time and shall effect payments of all such bills irrespective of the
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments; provided, however, that such advances are deemed to be Servicing
Advances.
Section 3.10 Collection Account. (a) On behalf of the Trustee,
each Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (such account or accounts,
the "Collection Account"), held in trust for the benefit of the Trustee for the
benefit of the Certificateholders. Funds in the Collection Account shall not be
commingled with any other funds of the applicable Servicer. On behalf of the
Trustee, each Servicer shall deposit or cause to be deposited in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after such Servicer's receipt thereof, and shall thereafter
deposit in the Collection Account, as soon as the proper cash application can be
determined, generally within two Business Days (but in no event later than 5
Business Days) after the deposit of such funds into the clearing account, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date), or payments (other than Principal Prepayments) received by it
on or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the express requirements of
law or in accordance with Accepted Servicing Practices) and all
Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12 in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by such Servicer
pursuant to the second paragraph of Section 3.13(a) in respect of any
blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased
in accordance with this Agreement and any Substitution Adjustment
Amount; and
(vii) all Prepayment Premiums collected by such Servicer or
required to be paid by such Servicer pursuant to Section 3.07.
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by each Servicer in the Collection Account and shall, upon
collection, belong to the applicable Servicer as additional compensation for its
servicing activities. In the event a Servicer shall deposit in the Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Collection Account, any provision herein to the
contrary notwithstanding.
(b) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. Each
Servicer shall give notice to the Master Servicer, the Securities Administrator,
the Trustee and the Depositor of the location of the Collection Account
maintained by it when established and prior to any change thereof.
Section 3.11 Withdrawals from the Collection Account. (a) Each
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the
Securities Administrator for deposit in the Distribution Account, all
Available Funds (which solely for purposes of this Section 3.11(a)(i)
shall not be net of the Master Servicing Fee) in respect of the related
Distribution Date together with all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Prepayment
Period;
(ii) to reimburse the applicable Servicer for P&I Advances, but
only to the extent of amounts received which represent Late Collections
(net of the related Servicing Fees) of Scheduled Payments on Mortgage
Loans with respect to which such P&I Advances were made in accordance
with the provisions of Section 4.01;
(iii) to pay such Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect
to each Mortgage Loan, but in each case only to the extent of any Late
Collections, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds or other amounts as may be collected by such Servicer from a
Mortgagor, or otherwise received with respect to such Mortgage Loan (or
the related REO Property);
(iv) to pay to such Servicer as servicing compensation (in
addition to the Servicing Fee) on the Remittance Date any interest or
investment income earned on funds deposited in the Collection Account;
(v) to pay the Responsible Party or the Depositor, as applicable,
with respect to each Mortgage Loan that has previously been repurchased
or replaced pursuant to this Agreement all amounts received thereon
subsequent to the date of purchase or substitution, as the case may be;
(vi) to reimburse such Servicer for (A) any xxxxxxxxxxxx X&X
Advance or Servicing Advance previously made which such Servicer has
determined to be a Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance in accordance with the provisions of Section 4.01, (B)
any P&I Advance or Servicing Advance previously made with respect to a
delinquent Mortgage Loan which Mortgage Loan has been modified by such
Servicer in accordance with the terms of this Agreement; provided that
such Servicer shall only reimburse itself for such P&I Advances and
Servicing Advances at the time of such modification and shall reimburse
itself after such modification only as otherwise permitted under the
other clauses of this Section 3.11(a), and (C) any outstanding P&I
Advance or Servicing Advance made by the such Servicer from its own
funds, from Amounts Held for Future Distribution; provided, however, any
funds so applied shall be replaced by such Servicer by deposit in the
Collection Account no later than the close of business on the related
Remittance Date on which such funds are required to be distributed
pursuant to Section 4.01(b);
(vii) to pay, or to reimburse such Servicer for advances in
respect of, expenses incurred in connection with any Mortgage Loan
pursuant to Section 3.15;
(viii) to reimburse the Master Servicer, such Servicer, the
Depositor, the Securities Administrator or the Trustee for expenses
incurred by or reimbursable to the Master Servicer, such Servicer, the
Depositor, the Securities Administrator or the Trustee, as the case may
be, pursuant to Section 6.03, Section 7.02 or Section 8.05;
(ix) to reimburse the Master Servicer, such Servicer or the
Trustee, as the case may be, for expenses reasonably incurred in respect
of the breach or defect giving rise to the repurchase obligation as
described in Section 2.03 that were included in the Repurchase Price of
the Mortgage Loan, including any expenses arising out of the enforcement
of the repurchase obligation, to the extent not otherwise paid pursuant
to the terms hereof;
(x) to invest funds in Permitted Investments in accordance with
Section 3.12;
(xi) to withdraw any amounts deposited in the Collection Account
in error;
(xii) to withdraw any amounts held in the Collection Account and
not required to be remitted to the Master Servicer on the Remittance
Date occurring in the month in which such amounts are deposited into the
Collection Account, to reimburse such Servicer for unreimbursed
Advances; and
(xiii) to clear and terminate the Collection Account upon
termination of this Agreement.
To the extent that a Servicer does not timely make the remittance
referred to in clause (i) above, such Servicer shall pay the Master Servicer for
the account of the Master Servicer interest on any amount not timely remitted at
the prime rate, from and including the applicable Remittance Date to but
excluding the date such remittance is actually made.
(b) Each Servicer shall keep and maintain separate accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi), (vii), (viii) and
(ix) above. Each Servicer shall provide written notification to the Depositor,
on or prior to the next succeeding Remittance Date, upon making any withdrawals
from the Collection Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account and
the Distribution Account. (a) Each Servicer may invest the funds in the
Collection Account. The Securities Administrator may invest funds in the
Distribution Account during the Securities Administrator Float Period, and shall
(except during the Securities Administrator Float Period), invest such funds in
the Distribution Account at the direction of the Depositor. For purposes of this
Section 3.12, each of the Collection Accounts and the Distribution Accounts are
referred to as an "Investment Account") and all funds therein may be invested in
one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand no later than the Business Day on which such
funds are required to be withdrawn from such account pursuant to this Agreement
(except for investments made at the Depositor's direction, which shall mature no
later than the Business Day immediately preceding the date of required
withdrawal). All such Permitted Investments shall be held to maturity, unless
payable on demand, and in the absence of written instructions from the
Depositor, the Securities Administrator shall invest in the Xxxxx Fargo
Advantage Prime Investment Money Market Fund. 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 (except with
respect to investment direction of funds held in the related Account and any
income and gain realized thereon in any Account other than the Distribution
Account during the Securities Administrator Float Period) over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Securities Administrator or its
agent, together with any document of transfer necessary to transfer title to
such investment to the Securities Administrator. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Securities Administrator may:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the
last day such Permitted Investment may otherwise mature
hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(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 Collection Account held by or on behalf of the related
Servicer, shall be for the benefit of such Servicer and shall be subject to its
withdrawal in the manner set forth in Section 3.11. Such Servicer shall deposit
in the Collection Account the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator,
shall be for the benefit of the Depositor (except for any income or gain
realized from the investment of funds on deposit in the Distribution Account
during the Securities Administrator Float Period, which shall be for the benefit
of the Securities Administrator). The Depositor shall deposit in the
Distribution Account (except with respect to the Securities Administrator Float
Period, in which case the Securities Administrator shall so deposit) the amount
of any loss of principal incurred in respect of any such Permitted Investment
made with funds in such accounts immediately upon realization of such loss.
(d) 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.
(e) 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.
(f) The Securities Administrator shall not be liable for the
amount of any loss incurred with respect of any investment (except that during
the Securities Administrator Float Period, it will be responsible for
reimbursing the Trust for such loss) or lack of investment of funds held in any
Investment Account or the Distribution Account if made in accordance with
Section 3.12(c).
Section 3.13 Maintenance of Hazard Insurance, Errors and
Omissions and Fidelity Coverage. (a) Each Servicer shall cause to be maintained
for each First Lien Mortgage Loan standard hazard insurance on the related
Mortgaged Property in an amount which is at least equal to the lesser of (i) the
outstanding principal balance of such Mortgage Loan, in each case in an amount
not less than such amount as is necessary to prevent the Mortgagor and/or the
Mortgagee from becoming a co-insurer, (ii) the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis and (iii) the amount required under the
applicable regulations set forth by each of the Department of Housing and Urban
Development and Federal Housing Administration. Each Servicer shall also cause
to be maintained fire insurance with extended coverage on each REO Property in
an amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements which are a part of such property and (ii) the
outstanding principal balance of the related Mortgage Loan at the time it became
an REO Property, plus accrued interest at the Mortgage Interest Rate and related
Servicing Advances. Each Servicer will comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
such hazard policies. Any amounts to be collected by any Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that such Servicer would follow in
servicing loans held for its own account, subject to the terms and conditions of
the related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11. Any cost incurred by
any Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Securities Administrator, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. If the Mortgaged
Property or REO Property is at any time in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards and flood insurance has been made available, the applicable Servicer
will cause to be maintained a flood insurance policy in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan and (ii) the maximum amount of
such insurance available for the related Mortgaged Property under the national
flood insurance program (assuming that the area in which such Mortgaged Property
is located is participating in such program).
In the event that any Servicer shall obtain and maintain a
blanket policy with an insurer having a General Policy Rating of B:VI or better
in Best's (or such other rating that is comparable to such rating) insuring
against hazard losses on all of the Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations as set forth in the first two sentences
of this Section 3.13, it being understood and agreed that such policy may
contain a deductible clause, in which case such Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property or
REO Property a policy complying with the first two sentences of this Section
3.13, and there shall have been one or more losses which would have been covered
by such policy, deposit to the Collection Account from its own funds the amount
not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as administrator and servicer of the
Mortgage Loans, each Servicer agrees to prepare and present, on behalf of
itself, the Trustee claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
(b) Each Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of such Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless such Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. Each Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of Xxxxxx Mae or
Xxxxxxx Mac, unless such Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. Each Servicer shall provide the Master Servicer
upon request with copies of any such insurance policies and fidelity bond (or in
the case of Avelo, the Master Servicer will be provided access to review such
insurance policies and fidelity bond of Avelo or its affiliates). Each Servicer
shall be deemed to have complied with this provision if an Affiliate of the
applicable Servicer has such errors and omissions and fidelity bond coverage
and, by the terms of such insurance policy or fidelity bond, the coverage
afforded thereunder extends to such Servicer. Upon request from the Master
Servicer, each Servicer shall cause to be delivered to the Master Servicer proof
of coverage of the fidelity bond errors and omissions insurance policy and a
statement from the surety and the insurer that that surety and insurer shall
endeavor to notify the Trustee and the Master Servicer within 30 days prior to
such fidelity bond's errors and omissions insurance policy's termination or
material modification (or 10 days for non-payment of premium for such fidelity
bond's errors and omissions insurance policy). Each Servicer shall also cause
each Subservicer to maintain a policy of insurance covering errors and omissions
and a fidelity bond which would meet such requirements.
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. Each Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due on sale" clause, if any, applicable thereto; provided, however, that no
Servicer shall be required to take such action if, in the reasonable belief of
the such Servicer, such Servicer believes it is not in the best interests of the
Trust Fund and shall not exercise any such rights if prohibited by law from
doing so. If a Servicer reasonably believes it is unable under applicable law to
enforce such "due on sale" clause or if any of the other conditions set forth in
the proviso to the preceding sentence apply, such Servicer will make reasonable
efforts to enter into an assumption and modification agreement from or with the
person to whom such property has been conveyed or is proposed to be conveyed,
pursuant to which such person becomes liable under the Mortgage Note, such
Servicer has the prior consent of the primary mortgage guaranty insurer, if any,
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Each Servicer is also authorized to enter into a substitution of
liability agreement with such person, pursuant to which the original Mortgagor
is released from liability and such person is substituted as the Mortgagor and
becomes liable under the Mortgage Note; provided, that no such substitution
shall be effective unless such person satisfies the underwriting criteria of
such Servicer and has a credit risk rating at least equal to that of the
original Mortgagor. In connection with any assumption, modification or
substitution, such Servicer shall apply such underwriting standards and follow
such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. No Servicer shall take or enter into any assumption and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy, or a new policy meeting
the requirements of this Section is obtained. Any fee collected by a Servicer in
respect of an assumption or substitution of liability agreement will be retained
by such Servicer as additional servicing compensation. In connection with any
such assumption, no material term of the Mortgage Note (including but not
limited to the related Mortgage Interest Rate and the amount of the Scheduled
Payment) may be amended or modified, except as otherwise required pursuant to
the terms thereof. Each Servicer shall notify the Custodian that any such
substitution, modification or assumption agreement has been completed by
forwarding to the Custodian the executed original of such substitution or
assumption agreement, which document shall be added to the related Mortgage File
and shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, a Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which such Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. Each
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. Each Servicer shall use reasonable
efforts to realize upon such defaulted Mortgage Loans in such manner as will
maximize the receipt of principal and interest by the Securities Administrator,
taking into account, among other things, the timing of foreclosure proceedings.
The foregoing is subject to the provisions that, in any case in which a
Mortgaged Property shall have suffered damage from an uninsured cause, a
Servicer shall not be required to expend its own funds toward the restoration of
such property unless it shall determine in its sole discretion (i) that such
restoration will increase the net proceeds of liquidation of the related
Mortgage Loan to the Securities Administrator, after reimbursement to itself for
such expenses, and (ii) that such expenses will be recoverable by such Servicer
through Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds from
the related Mortgaged Property, as contemplated in Section 3.11. Each Servicer
shall be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related property, as contemplated in Section 3.11. With respect
to Second Lien Mortgage Loans that are 180 days or more delinquent, in
circumstances where a Servicer determines that it would be uneconomical to
foreclose on the related Mortgaged Property, such Servicer may write off the
entire outstanding principal balance of the related Second Lien Mortgage Loan as
bad debt.
In the event that the related First Lien Mortgage Loan is not
being serviced by such Servicer, such Servicer shall have no liability for any
losses resulting from a foreclosure on a Second Lien Mortgage Loan in connection
with the foreclosure on the related First Lien Mortgage Loan for which the
related First Lien Mortgage Loan is not included in the Trust Fund where such
Servicer did not receive notice or otherwise had no actual knowledge regarding
such foreclosure on the related First Lien Mortgage Loan; provided, however, if
such Servicer is either notified or has actual knowledge that any holder of a
First Lien Mortgage Loan intends to accelerate the obligations secured by the
First Lien Mortgage Loan, or that any such holder intends to declare a default
under the mortgage or promissory note secured thereby, or has filed or intends
to file an election to have the related Mortgaged Property sold or foreclosed,
such Servicer shall take, on behalf of the Trust, whatever actions are necessary
to protect the interests of the Trust in accordance with Accepted Servicing
Practices and the REMIC Provisions. No Servicer shall be required to make a
Servicing Advance pursuant to Section 4.01 with respect thereto except to the
extent that it determines in its reasonable good faith judgment that such
advance would be recoverable from Liquidation Proceeds on the related Second
Lien Mortgage Loan, that a significant net recovery is possible through
foreclosure, and in no event in an amount that is greater than the then
outstanding principal balance of the related Second Lien Mortgage Loan. The
applicable Servicer shall thereafter take such action as is reasonably necessary
to recover any amount so advanced and to otherwise reimburse itself as a
Servicing Advance from the Collection Account pursuant to Section 3.11.
The proceeds of any Liquidation Event or REO Disposition, as well
as any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse such Servicer or any Subservicer for any related unreimbursed
Servicing Advances, pursuant to Section 3.11 or 3.17; second, to accrued and
unpaid interest on the Mortgage Loan or REO Imputed Interest, at the Mortgage
Interest Rate, to the date of the liquidation or REO Disposition, or to the Due
Date prior to the Remittance Date on which such amounts are to be distributed if
not in connection with a Liquidation Event or REO Disposition; third, to
reimburse such Servicer for any related xxxxxxxxxxxx X&X Advances, pursuant to
Section 3.11; and fourth, as a recovery of principal of the Mortgage Loan. If
the amount of the recovery so allocated to interest is less than a full recovery
thereof, that amount will be allocated as follows: first, to unpaid Servicing
Fees; and second, as interest at the Mortgage Interest Rate (net of the
Servicing Fee Rate). The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to such Servicer or any Subservicer pursuant
to Section 3.11 or 3.17. The portions of the recovery so allocated to interest
at the Mortgage Interest Rate (net of the Servicing Fee Rate) and to principal
of the Mortgage Loan shall be applied as follows: first, to reimburse such
Servicer or any Subservicer for any related unreimbursed Servicing Advances in
accordance with Section 3.11 or 3.17; and second, to the Securities
Administrator in accordance with the provisions of Section 4.02, subject to the
last paragraph of Section 3.17 with respect to certain excess recoveries from an
REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed-in-lieu of foreclosure, in
the event a Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee or the Master Servicer otherwise requests,
such Servicer shall cause an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector. Upon completion of
the inspection, such Servicer shall promptly provide the Trustee, the Master
Servicer and the Depositor with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the
applicable Servicer shall determine consistent with Accepted Servicing Practices
how to proceed with respect to the Mortgaged Property. In the event (a) the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes and (b) the applicable
Servicer determines, consistent with Accepted Servicing Practices, to proceed
with foreclosure or acceptance of a deed-in-lieu of foreclosure, such Servicer
shall be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed-in-lieu of foreclosure and any related environmental
clean-up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse such Servicer, such
Servicer shall be entitled to be reimbursed from amounts in the Collection
Account pursuant to Section 3.11. In the event the applicable Servicer
determines not to proceed with foreclosure or acceptance of a deed-in-lieu of
foreclosure, such Servicer shall be reimbursed from general collections for all
Servicing Advances made with respect to the related Mortgaged Property from the
Collection Account pursuant to Section 3.11. The Trustee shall not be
responsible for any determination made by the applicable Servicer pursuant to
this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full of any
Mortgage Loan, or the receipt by a Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, such Servicer
will, within five (5) Business Days of the payment in full, notify the Custodian
by a certification (which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Collection Account pursuant to Section
3.10 have been or will be so deposited) of a Servicing Officer and shall request
delivery to it of the Custodial File by completing a Request for Release in the
form of Exhibit L hereto to the Custodian. Upon receipt of such certification
and Request for Release, the Custodian shall promptly release the related
Custodial File to such Servicer within three (3) Business Days. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Insurance Policy relating to the Mortgage Loans, the Custodian shall, upon
request of such Servicer and delivery to the Custodian of a Request for Release,
release the related Custodial File to such Servicer, and the Trustee shall, at
the direction of such Servicer, execute such documents as shall be necessary to
the prosecution of any such proceedings and such Servicer shall retain the
Mortgage File in trust for the benefit of the Trustee. Such Request for Release
shall obligate the applicable Servicer to return each and every document
previously requested from the Custodial File to the Custodian when the need
therefor by such Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Collection Account or the Mortgage File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and such Servicer has delivered to the Custodian a certificate
of a Servicing Officer certifying as to the name and address of the Person to
which such Mortgage File or such document was delivered and the purpose or
purposes of such delivery. Upon receipt of a certificate of a Servicing Officer
stating that such Mortgage Loan was liquidated and that all amounts received or
to be received in connection with such liquidation that are required to be
deposited into the Collection Account have been so deposited, or that such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be released by the Custodian to the applicable Servicer or its designee.
Upon receipt of a Request for Release under this Section 3.16, the Custodian
shall deliver the related Custodial File to the requesting Servicer by regular
mail or by overnight courier, unless a Servicer requests that the Custodian
deliver such Custodial File to such Servicer by overnight courier (in which case
such delivery shall be at the applicable Servicer's expense); provided, however,
that in the event such Servicer has not previously received copies of the
relevant Mortgage Loan Documents necessary to service the related Mortgage Loan
in accordance with Accepted Servicing Practices, the Depositor shall use
reasonable efforts to cause the Sponsor to reimburse such Servicer for any
overnight courier charges incurred for the requested Custodial Files.
Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the applicable Servicer copies of any court
pleadings, requests for trustee's sale or other documents reasonably necessary
to the foreclosure or trustee's sale in respect of a Mortgaged Property or to
any legal action brought to obtain judgment against any Mortgagor on the
Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce any
other remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity, or shall exercise and deliver to such Servicer a
power of attorney sufficient to authorize such Servicer to execute such
documents on its behalf. Each such certification shall include a request that
such pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the account of
the Trustee for the benefit of the Certificateholders and shall not apply to any
REO Property relating to a Mortgage Loan which was purchased or repurchased from
the Trustee pursuant to any provision hereof. In the event that title to any
such REO Property is acquired, the applicable Servicer shall cause the deed or
certificate of sale to be issued in the name of the Trustee, on behalf of the
Certificateholders, or the Trustee's nominee.
(b) Each Servicer shall manage, conserve, protect and operate
each REO Property for the Trustee for the benefit of the Certificateholders
solely for the purpose of its prompt disposition and sale. Each Servicer, either
itself or through an agent selected by such Servicer, shall manage, conserve,
protect and operate the REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account,
and in the same manner that similar property in the same locality as the REO
Property is managed. Each Servicer shall attempt to sell the same (and may
temporarily rent the same for a period not greater than one year, except as
otherwise provided below) on such terms and conditions as such Servicer deems to
be in the best interest of the Master Servicer. Each Servicer shall notify the
Master Servicer from time to time as to the status of each REO Property.
(c) Each Servicer shall use its best efforts to dispose of the
REO Property as soon as possible (subject to the Master Servicer's right to veto
any proposed sale of REO Property) and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless such
Servicer determines, and gives an appropriate notice to the Trustee and the
Master Servicer to such effect, that a longer period is necessary for the
orderly liquidation of such REO Property. If a period longer than three years is
permitted under the foregoing sentence and is necessary to sell any REO
Property, such Servicer shall report monthly to the Securities Administrator and
the Master Servicer as to the progress being made in selling such REO Property.
Notwithstanding its veto rights, the Trustee has no obligation with respect to
REO Dispositions.
(d) Each Servicer shall segregate and hold all funds collected
and received in connection with the operation of any REO Property separate and
apart from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) Each Servicer shall deposit net of reimbursement to such
Servicer for any related outstanding Servicing Advances and unpaid Servicing
Fees provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) Each Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess
of the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the applicable Servicer as additional servicing compensation.
(h) Each Servicer shall use its reasonable best efforts to sell,
or cause the Subservicer to sell, any REO Property as soon as possible, but in
no event later than the conclusion of the third calendar year beginning after
the year of its acquisition by the REMIC unless (i) such Servicer applies for an
extension of such period from the Internal Revenue Service pursuant to the REMIC
Provisions and Code Section 856(e)(3), in which event such REO Property shall be
sold within the applicable extension period, or (ii) such Servicer, at its
expense, obtains for and delivers to the Trustee and the Master Servicer an
Opinion of Counsel, addressed to the Depositor, the Trustee, the Master Servicer
and such Servicer, to the effect that the holding by the Pooling-Tier REMIC-1 of
such REO Property subsequent to such period will not result in the imposition of
taxes on "prohibited transactions" as defined in Section 860F of the Code or
cause any Trust REMIC to fail to qualify as a REMIC under the REMIC Provisions
or comparable provisions of relevant state laws at any time. Each Servicer shall
manage, conserve, protect and operate each REO Property serviced by such
Servicer for the Trustee solely for the purpose of its prompt disposition and
sale in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) or result in the
receipt by the Pooling-Tier REMIC-1 of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under Section 860G(a)(1) of
the Code. Pursuant to its efforts to sell such REO Property, the applicable
Servicer shall either itself or through an agent selected by such Servicer
protect and conserve such REO Property in the same manner and to such extent as
is customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the Trustee on
behalf of the Certificateholders, rent the same, or any part thereof, as such
Servicer deems to be in the best interest of the Trustee on behalf of the
Certificateholders for the period prior to the sale of such REO Property;
provided, however, that any rent received or accrued with respect to such REO
Property qualifies as "rents from real property" as defined in Section 856(d) of
the Code.
Section 3.18 Notification of Adjustments. With respect to each
Adjustable-Rate Mortgage Loan, the applicable Servicer shall adjust the Mortgage
Interest Rate on the related Adjustment Date and shall adjust the Scheduled
Payment on the related mortgage payment adjustment date, if applicable, in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. In the event that an Index becomes unavailable or otherwise
unpublished, the related Servicer shall select a comparable alternative index
over which it has no direct control and which is readily verifiable. Each
Servicer shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate and Scheduled Payment adjustments. Each Servicer
shall promptly, upon written request therefor, deliver to the Master Servicer
such notifications and any additional applicable data regarding such adjustments
and the methods used to calculate and implement such adjustments. Upon the
discovery by a Servicer or the receipt of notice from the Master Servicer that a
Servicer has failed to adjust a Mortgage Interest Rate or Scheduled Payment in
accordance with the terms of the related Mortgage Note, such Servicer shall
deposit in the Collection Account from its own funds the amount of any interest
loss caused as such interest loss occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The applicable Servicer shall provide, or cause
the Subservicer to provide, to the Depositor, the Trustee, the OTS or the FDIC
and the examiners and supervisory agents thereof access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge, but only
upon reasonable and prior written request and during normal business hours at
the offices of the applicable Servicer or any Subservicer. Nothing in this
Section 3.19 shall derogate from the obligation of any such party to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of any such party to provide access as provided in this Section
3.19 as a result of such obligation shall not constitute a breach of this
Section 3.19.
Section 3.20 Documents, Records and Funds in Possession of the
Servicers to Be Held for the Securities Administrator for the Benefit of the
Trustee. Each Servicer shall account fully to the Securities Administrator on
behalf of the Trustee for any funds received by such Servicer or which otherwise
are collected by such Servicer as Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control of, a Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including, but not limited to, any funds on
deposit in the Collection Account, shall be held by such Servicer for and on
behalf of the Trustee on behalf of the Certificateholders and shall be and
remain the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. Each Servicer also agrees that it shall not
create, incur or subject any Mortgage File or any funds that are deposited in
the Collection Account, the Distribution Account or any Escrow Account, or any
funds that otherwise are or may become due or payable to the Securities
Administrator on behalf of the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Mortgage File or any funds collected on, or
in connection with, a Mortgage Loan, except, however, that such Servicer shall
be entitled to set off against and deduct from any such funds any amounts that
are properly due and payable to such Servicer under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, each Servicer shall, with respect to each Mortgage Loan,
be entitled to retain from deposits to the Collection Account and from
Liquidation Proceeds, Insurance Proceeds, and Condemnation Proceeds related to
such Mortgage Loan, the Servicing Fee with respect to each Mortgage Loan (less
any portion of such amounts retained by any Subservicer). In addition, each
Servicer shall be entitled to recover unpaid Servicing Fees out of related Late
Collections to the extent permitted in Section 3.11. The right to receive the
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of a Servicer's responsibilities and obligations under
this Agreement; provided, however, that each Servicer may pay from the Servicing
Fee any amounts due to a Subservicer pursuant to a Subservicing Agreement
entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption
or modification fees, late payment charges, NSF fees, reconveyance fees and
other similar fees and charges (other than Prepayment Premiums) shall be
retained by a Servicer only to the extent such fees or charges are received by
such Servicer. Each Servicer shall also be entitled pursuant to Section 3.09(b)
and Section 3.11(a)(iv) to withdraw from the Collection Account, as additional
servicing compensation, interest or other income earned on deposits therein.
(c) Each Servicer shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder (including payment
of premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by such Servicer), and shall not be entitled to reimbursement
therefor except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. Each Servicer,
the Securities Administrator and the Master Servicer shall deliver or cause to
be delivered, and each Servicer shall cause each Subservicer engaged by such
Servicer to deliver or cause to be delivered to the Depositor, the Securities
Administrator, the Master Servicer, the Rating Agencies and the Trustee on or
before March 15th of each calendar year, commencing in 2008, an Officer's
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Securities Administrator, the Master Servicer, the Trustee (in
its capacity as successor master servicer, if applicable), the Servicer or
Subservicer, as applicable, during the preceding calendar year and of its
performance under this Agreement, or the applicable Subservicing Agreement, as
the case may be, has been made under such officers' supervision, and (ii) to the
best of such officers' knowledge, based on such review, the Securities
Administrator, the Master Servicer, the Trustee (in its capacity as successor
master servicer, if applicable), such Servicer or Subservicer, as applicable,
has fulfilled all of its obligations under this Agreement or the applicable
Subservicing Agreement, as the case may be, in all material respects throughout
such year, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officers and the
nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review such Officer's Certificate and, if
applicable, consult with the applicable Servicer as to the nature of any
defaults by the applicable Servicer or any related Subservicer in the
fulfillment of any of a Servicer's or Subservicer's obligations. The obligations
of the Securities Administrator, the Master Servicer, the Trustee (in its
capacity as successor master servicer, if applicable), each Servicer or
Subservicer under this Section apply to the Securities Administrator, the Master
Servicer and each Servicer and Subservicer that serviced a Mortgage Loan during
the applicable period, whether or not such Servicer or Subservicer is acting as
Securities Administrator, Master Servicer, Servicer or Subservicer, as
applicable, at the time such Officer's Certificate is required to be delivered.
None of the Securities Administrator, the Master Servicer, the Trustee (in its
capacity as successor master servicer, if applicable), the Servicers or
Subservicer shall be required to cause the delivery of any Officer's Certificate
required by this Section in any given year so long as it has received written
confirmation from the Depositor that a Form 10-K is not required to be filed in
respect of the Trust for the preceding calendar year.
Section 3.23 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report(a)
(a) Not later than March 15th of each calendar year commencing in 2008 (and with
respect to the Custodian, only until a Form 15 Suspension Notice has been
filed), each Servicer, the Securities Administrator, the Master Servicer, the
Custodian and the Trustee (in its capacity as successor master servicer, if
applicable) each shall deliver, and each Servicer shall cause each Subservicer
engaged by such Servicer, and each Servicer, the Securities Administrator, the
Master Servicer and the Trustee (in its capacity as successor master servicer,
if applicable) shall cause each Subcontractor utilized by such Servicer (or by
any such Subservicer), the Master Servicer, the Securities Administrator or the
Trustee (in its capacity as successor master servicer, if applicable), as
applicable, and determined by such Servicer, the Master Servicer, the Securities
Administrator or the Trustee (in its capacity as successor master servicer, if
applicable), as applicable, pursuant to Section 3.02(e) to be "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB (in
each case, a "Servicing Function Participant"), to deliver, each at its own
expense, to the Depositor and the Securities Administrator, a report on an
assessment of compliance with the Servicing Criteria applicable to it that
contains (A) a statement by such party of its responsibility for assessing
compliance with the Servicing Criteria applicable to it, (B) a statement that
such party used the Servicing Criteria to assess compliance with the applicable
Servicing Criteria, (C) such party's assessment of compliance with the
applicable Servicing Criteria as of and for the period ending the end of the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
8.12, including, if there has been any material instance of noncompliance with
the applicable Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such Person's assessment of
compliance with the applicable Servicing Criteria as of and for such period.
Each such assessment of compliance report shall be addressed to the Depositor
and signed by an authorized officer of the applicable company, and shall address
each of the applicable Servicing Criteria set forth on Exhibit T hereto, or as
set forth in the notification furnished to the Depositor and the Securities
Administrator pursuant to Section 3.23(c). The Servicers, the Securities
Administrator, the Master Servicer, the Trustee (in its capacity as successor
master servicer, if applicable) and the Custodian hereby acknowledge and agree
that their respective assessments of compliance will cover the items identified
on Exhibit T hereto as being covered by such party. The parties to this
Agreement acknowledge that where a particular Servicing Criteria has multiple
components, each party's assessment of compliance (and related attestation of
compliance) will relate only to those components that are applicable to such
party. Promptly after receipt of each such report on assessment of compliance,
(i) the Depositor shall review each such report and, if applicable, consult with
the applicable Servicer, the Securities Administrator, the Master Servicer, the
Trustee (in its capacity as successor master servicer, if applicable) or the
Custodian as to the nature of any material instance of noncompliance with the
Servicing Criteria applicable to it (and each Subservicer or Servicing Function
Participant engaged or utilized by the related Servicer, such Subservicer or the
Trustee (in its capacity as successor master servicer, if applicable), as
applicable), as the case may be. No Subcontractor engaged by a Servicer, the
Securities Administrator or the Master Servicer shall be required to deliver any
such assessments required by this paragraph in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
(b) Not later than March 15th of each calendar year, commencing
in 2008 (and with respect to the Custodian, only until a Form 15 Suspension
Notice has been filed), each Servicer, the Securities Administrator, the Master
Servicer, the Trustee (in its capacity as successor master servicer, if
applicable) and the Custodian shall cause, and each Servicer, the Securities
Administrator and the Master Servicer shall cause each Subservicer engaged by
such Servicer and such Servicer, the Securities Administrator and the Master
Servicer shall cause each Servicing Function Participant utilized by the
Securities Administrator, the Master Servicer or such Servicer, as applicable
(or by any Subservicer engaged by such Servicer), to cause, each at its own
expense, a registered public accounting firm (which may also render other
services to such party) that is a member of the American Institute of Certified
Public Accountants to furnish a report to the Securities Administrator and the
Depositor, with a copy to the Rating Agencies, to the effect that (i) it has
obtained a representation regarding certain matters from the management of such
Person, which includes an assertion that such Person has complied with the
Servicing Criteria applicable to it pursuant to Section 3.23(a) and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, that attests to and
reports on such Person's assessment of compliance with the Servicing Criteria
applicable to it. 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. Each such related accountant's attestation report
shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act. Such report must be available for
general use and not contain restricted use language. Promptly after receipt of
each such accountants' attestation report, the Depositor shall review the report
and, if applicable, consult with the applicable Servicer, the Securities
Administrator, the Master Servicer, the Trustee (in its capacity as successor
master servicer, if applicable) or the Custodian as to the nature of any
defaults by the applicable Servicer, the Securities Administrator, the Master
Servicer, the Trustee (in its capacity as successor master servicer, if
applicable) or the Custodian (and each Subservicer or Servicing Function
Participant engaged or utilized by the applicable Servicer, the Master Servicer,
Master Servicer and Trustee (in its capacity as successor master servicer, if
applicable), as applicable, or by any Subservicer engaged by a Servicer), as the
case may be, in the fulfillment of any of such Servicer's, the Securities
Administrator's, the Master Servicer's, the Trustee's (in its capacity as
successor master servicer, if applicable), the Custodian's or the applicable
Subservicer's or Servicing Function Participant's obligations hereunder or under
any applicable Subservicing Agreement. No Subcontractor engaged by a Servicer
shall be required to deliver any such attestation required by this paragraph in
any given year so long as it has received written confirmation from the
Depositor that a Form 10-K is not required to be filed in respect of the Trust
for the preceding calendar year.
(c) Unless previously provided under Section 3.02(e), no later
than March 1 of each fiscal year, commencing in 2008, each Servicer shall notify
the Securities Administrator, the Master Servicer and the Depositor as to the
name of each Subservicer engaged by it and each Servicing Function Participant
utilized by it and by each Subservicer engaged by it, and the Securities
Administrator and the Master Servicer shall notify the Depositor as to the name
of each Servicing Function Participant utilized by it, and each such notice will
specify what specific Servicing Criteria will be addressed in the report on
assessment of compliance prepared by such Servicing Function Participant in each
case, to the extent of any change from the prior year's notice, if any. When a
Servicer, the Securities Administrator or the Master Servicer submits its
assessment pursuant to Section 3.23(a), such Servicer, the Securities
Administrator and the Master Servicer, as applicable, will also at such time
include the assessment (and related attestation pursuant to Section 3.23(b)) of
each Servicing Function Participant utilized by it and by each Subservicer
engaged by it.
(d) The obligations of the Securities Administrator, the Master
Servicer, the Trustee (in its capacity as successor master servicer, if
applicable), the Custodian and each Servicer or Subservicer under this Section
apply to the Securities Administrator, the Master Servicer, the Trustee (in its
capacity as successor master servicer, if applicable), the Custodian and each
Servicer and Subservicer that serviced a Mortgage Loan during the applicable
period, whether or not such Securities Administrator, Master Servicer, Trustee
(in its capacity as successor master servicer, if applicable), Custodian,
Servicer or Subservicer is acting as Securities Administrator, Master Servicer,
Trustee (in its capacity as successor master servicer, if applicable),
Custodian, Servicer or Subservicer, as applicable, at the time such assessment
of compliance with Servicing Criteria and related accountant's attestation is
required to be delivered.
Section 3.24 Master Servicer to Act as Servicer. (a) In the event
that a Servicer shall for any reason no longer be a Servicer hereunder
(including by reason of an Event of Default), the Master Servicer or its
successor shall thereupon assume all of the rights and obligations of such
Servicer hereunder arising thereafter (except that the Master Servicer shall not
be (i) liable for losses of the predecessor Servicer pursuant to Section 3.10 or
any acts or omissions of the predecessor Servicer hereunder, (ii) obligated to
make Advances if it is prohibited from doing so by applicable law, (iii)
obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder, including but not limited to repurchases or substitutions pursuant to
Section 2.03, (iv) responsible for expenses of such Servicer pursuant to Section
2.03 or (v) deemed to have made any representations and warranties of such
Servicer hereunder). Any such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by each Servicer
shall contain a provision giving the successor Servicer the option to terminate
such agreement in the event a successor Servicer is appointed.
(c) If the applicable Servicer shall for any reason no longer be
a Servicer (including by reason of any Event of Default), the Master Servicer
(or any other successor Servicer) may, at its option, succeed to any rights and
obligations of such Servicer under any Subservicing Agreement in accordance with
the terms thereof; provided, that the Master Servicer (or any other successor
Servicer) shall not incur any liability or have any obligations in its capacity
as successor Servicer under a Subservicing Agreement arising prior to the date
of such succession unless it expressly elects to succeed to the rights and
obligations of the applicable Servicer thereunder, and such Servicer shall not
thereby be relieved of any liability or obligations under the Subservicing
Agreement arising prior to the date of such succession.
(d) The applicable Servicer shall, upon request of the Master
Servicer, but at the expense of such Servicer, deliver to the assuming party all
documents and records relating to each Subservicing Agreement (if any) and the
Mortgage Loans then being serviced thereunder and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of the Subservicing Agreement to the assuming
party.
Section 3.25 Compensating Interest. The applicable Servicer shall
remit to the Securities Administrator on each Remittance Date an amount from its
own funds equal to Compensating Interest payable by such Servicer for such
Remittance Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With
respect to each Mortgage Loan, the applicable Servicer shall fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
related Mortgagor credit files to Equifax, Experian and TransUnion Credit
Information Company (three of the national credit repositories), on a monthly
basis.
(b) Each Servicer shall comply with all provisions of the Privacy
Laws relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by such Servicer
incidental to the performance of its obligations under this Agreement, including
maintaining adequate information security procedures to protect such nonpublic
personal information and providing all privacy notices required by the Privacy
Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account.
(a) The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholders, to receive that
portion of the distributions on the Class X Interest up to an amount equal to
any Basis Risk Payments and to pay to the LIBOR Certificateholders any Basis
Risk Carry Forward Amounts (prior to using any Net Swap Receipts or Cap
Payments). For the avoidance of doubt, any Basis Risk Carry Forward Amounts
shall be paid to the LIBOR 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 of LIBOR Certificates, the Securities
Administrator shall (1) withdraw from the Distribution Account and deposit in
the Excess Reserve Fund Account, as set forth in Section 4.02(a)(iii)(L), the
lesser of (x) the Class X Distributable Amount (to the extent remaining after
the distributions specified in Sections 4.02(a)(iii)(A)-(K) and without regard
to the reduction in clause (iii) of the definition thereof for any Basis Risk
Carry Forward Amounts or any Defaulted Swap Termination Payment) and (y) the
aggregate Basis Risk Carry Forward Amount and (2) withdraw from the Excess
Reserve Fund Account amounts necessary to pay to such Class or Classes of LIBOR
Certificates the applicable Basis Risk Carry Forward Amounts. Such payments,
along with payments from the Supplemental Interest Trust, 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
4.02(a)(iii)(M). In the event that the Class Certificate Balance of any Class of
Certificates is reduced because of Applied Realized Loss Amounts, the applicable
Certificateholders will not be entitled to receive Basis Risk Carry Forward
Amounts on the written down amounts on such Distribution Date or any future
Distribution Dates (except to the extent such Class Certificate Balance is
increased as a result of any Subsequent Recoveries), even if funds are otherwise
available for distribution.
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.
Any Basis Risk Carry Forward Amounts distributed by the
Securities Administrator to the LIBOR Certificateholders from the Excess Reserve
Fund Account 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 (in respect of the Class X Interest) and then to the respective
Class or Classes of LIBOR Certificates. In addition, the Securities
Administrator shall account for the rights of Holders of each Class of LIBOR
Certificates to receive payments of Basis Risk Carry Forward Amounts from the
Excess Reserve Fund Account (along with payments of Basis Risk Carry Forward
Amounts and without duplication, Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust) subject to the obligation to pay Class IO
Shortfalls, as rights and obligations under a separate limited recourse notional
principal contract between the Class X Certificateholders and Holders of each
such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any payments from the
Excess Reserve Fund Account except as expressly set forth in this Section
3.27(a).
(b) The Securities Administrator shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Securities
Administrator 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 such Servicer to the
Securities Administrator pursuant to Section 3.11;
(ii) any amount deposited by such Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments;
(iii) any amounts remitted by such Servicer to the Securities
Administrator in respect of Compensating Interest pursuant to Section
3.25; and
(iv) any other amounts deposited hereunder which are required to
be deposited in the Distribution Account.
In the event that the applicable Servicer shall remit any amount
not required to be remitted, such Servicer may at any time direct the Securities
Administrator in writing to withdraw such amount from the Distribution Account,
any provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering notice to the Securities Administrator, which
describes the amounts deposited in error in the Distribution Account. 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 4.02.
(c) In order to comply with laws, rules and regulations
applicable to banking institutions, including those relating to the funding of
terrorist activities and money laundering, Deutsche Bank is required to obtain,
verify and record certain information relating to individuals and entities which
maintain a business relationship with Deutsche Bank. Accordingly, each of the
parties agrees to provide to Deutsche Bank upon its request from time to time
such party's complete name, address, tax identification number and such other
identifying information, together with copies of such party's constituting
documentation, securities disclosure documentation and such other identifying
documentation as may be available for such party.
Section 3.28 Optional Purchase of Delinquent Mortgage Loans. The
Depositor (or its assignee), in its sole discretion, shall have the option, but
shall not be obligated, to purchase any 90+ Delinquent Mortgage Loans from the
Trust Fund. The purchase price for any such Mortgage Loan shall be 100% of the
unpaid principal balance of such Mortgage Loan plus accrued and unpaid interest
on the related Mortgage Loan at the applicable Mortgage Interest Rate, plus the
amount of any unreimbursed Servicing Advances made by such Servicer. Upon
receipt of such purchase price, the applicable Servicer shall provide to the
Custodian a Request for Release and the Custodian shall promptly release to the
Depositor or such Servicer, as applicable, the Mortgage File relating to the
Mortgage Loan being repurchased.
Section 3.29 Transfer of Servicing of the Mortgage Loans Prior to
the Servicing Transfer Date, New Century shall comply with its servicing
transfer obligations under the Interim Servicing Agreement in order to transfer
servicing of the Mortgage Loans to Avelo on the Servicing Transfer Date in
accordance with customary industry procedures.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be made
by each Servicer for any Remittance Date shall equal, subject to Section
4.01(c), the sum of (i) the aggregate amount of Scheduled Payments (with each
interest portion thereof net of the related Servicing Fee) due during the Due
Period immediately preceding such Remittance Date in respect of the related
Mortgage Loans, which Scheduled Payments were not received as of the close of
business on the related Determination Date, (ii) with respect to Second Lien
Mortgage Loans for which Scheduled Payments were not received as of the close of
business on the related Determination Date, the interest portion of the
aggregate amount of Scheduled Payments (net of the related Servicing Fee), due
during the Due Period immediately preceding such Remittance Date, (iii) with
respect to each REO Property, which REO Property was acquired during or prior to
the related Prepayment Period and as to which such REO Property an REO
Disposition did not occur during the related Prepayment Period, an amount equal
to the REO Imputed Interest that would have been due on the related Due Date in
respect of the related Mortgage Loans and (iv) with respect to each Mortgage
Loan that required a balloon payment on its final Due Date, a payment equal to
the assumed monthly payment that would have been due on the related Due Date
based upon the original principal amortization schedule for such balloon
mortgage loan.
(b) On each Remittance Date, each Servicer shall remit in
immediately available funds to the Securities Administrator for deposit in the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the Mortgage Loans and REO Properties for the
related Remittance Date either (i) from its own funds or (ii) from the
Collection Account, to the Amounts Held for Future Distribution (in which case,
such Servicer will cause to be made an appropriate entry in the records of the
Collection Account that Amounts Held for Future Distribution have been, as
permitted by this Section 4.01, used by such Servicer in discharge of any such
P&I Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the total amount of P&I Advances to be made by such Servicer with respect to the
Mortgage Loans and REO Properties. Any Amounts Held for Future Distribution and
so used shall be appropriately reflected in such Servicer's records and replaced
by such Servicer by deposit in the Collection Account on or before any future
Remittance Date to the extent required. In addition, such Servicer shall have
the right to reimburse itself for any outstanding P&I Advance and Servicing
Advance made by it from its own funds from Amounts Held for Future Distribution.
Any funds so applied and transferred pursuant to the previous sentence shall be
replaced by such Servicer by deposit in the Collection Account no later than the
close of business on the related Remittance Date on which such funds are
required to be distributed pursuant to this Agreement. The applicable Servicer
may reimburse itself from the Collection Account for xxxxxxxxxxxx X&X Advances
and Servicing Advances made in connection with the modification of a Mortgage
Loan.
(c) The obligation of each Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
paragraph (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from coverage under this Agreement, except as otherwise
provided in this Section 4.01.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance or Servicing Advance shall be required to be made hereunder by the
Servicer if such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by any Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of such Servicer delivered to the Master Servicer. In
addition, the applicable Servicer shall not be required to make any P&I Advances
on Mortgage Loans subject to bankruptcy proceedings or for any Relief Act
Interest Shortfalls.
(e) Except as otherwise provided herein, each Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loan.
(f) On each Remittance Date, the Securities Administrator shall
deposit in the Distribution Account all funds remitted to it by the Servicer
pursuant to Sections 3.11(a)(i) and 3.25 and this Section 4.01. The Securities
Administrator may retain or withdraw from the Distribution Account, (i) the
Master Servicing Fee, (ii) amounts necessary to reimburse the Master Servicer or
the Servicer for any previously unreimbursed Advances and any Advances the
Master Servicer deems to be nonrecoverable from the related Mortgage Loan
proceeds, (iii) an amount to indemnify the Master Servicer or the Servicer for
amounts due in accordance with this Agreement, and (iv) any other amounts that
each of the Master Servicer and the Securities Administrator is entitled to
receive hereunder for reimbursement, indemnification or otherwise
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator shall allocate from amounts then on deposit
in the Distribution Account in the following order of priority and to the extent
of the Available Funds remaining and, on such Distribution Date, shall make
distributions on the Certificates in accordance with such allocation:
(i) to the Supplemental Interest Trust and to the holders of each
Class of LIBOR Certificates in the following order of priority:
(A) to the Supplemental Interest Trust, the sum of (x) all
Net Swap Payments and (y) any Swap Termination Payment owed to
the Swap Provider (to the extent not previously paid to the Swap
Provider as a Replacement Swap Provider Payment) other than a
Defaulted Swap Termination Payment;
(B) concurrently, (1) from the Interest Remittance Amount
related to the Group I Mortgage Loans, to the Class A-1
Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for the Class
A-1 Certificates; (2) from the Interest Remittance Amount related
to the Group II Mortgage Loans, pro rata (based on the Accrued
Certificate Interest Distribution Amounts and Unpaid Interest
Amounts distributable to the Class A-2A, Class A-2B, Class A-2C
and Class A-2D Certificates) to the Class A-2A, Class A-2B, Class
A-2C and Class A-2D Certificates, the related Accrued Certificate
Interest Distribution Amounts and Unpaid Interest Amounts for the
Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates;
(3) provided, that if the Interest Remittance Amount for either
Loan Group is insufficient to make the related payments set forth
clause (1) or (2) above, any Interest Remittance Amount relating
to the other Loan Group remaining after payment of the related
Accrued Certificate Interest Distribution Amounts and Unpaid
Interest Amounts will be available to cover that shortfall;
(C) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(D) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(E) from any remaining Interest Remittance Amounts, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(F) from any remaining Interest Remittance Amounts, to
the Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(G) from any remaining Interest Remittance Amounts, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(H) from any remaining Interest Remittance Amounts, to the
Class M-6 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(I) from any remaining Interest Remittance Amounts, to the
Class M-7 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(J) from any remaining Interest Remittance Amounts, to
the Class M-8 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(K) from any remaining Interest Remittance Amounts, to the
Class M-9 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(L) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class; and
(M) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class.
(ii) (A) on each Distribution Date (a) prior to the Stepdown Date
or (b) with respect to which a Trigger Event is in effect, to the
holders of the Class or Classes of LIBOR 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) sequentially:
(x) concurrently to the Class R, Class RC and
Class RX Certificates, allocated pro rata, until their respective
Class Certificate Balances have been reduced to zero; and (y) to
the Class A Certificates, allocated as described in Section
4.02(c), until their respective Class Certificate Balances are
reduced to zero;
(b) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class B-1 and Class B-2 Certificates, in that order, until their
respective Class Certificate Balances are reduced to zero;
(B) on each Distribution Date (a) on and after the Stepdown
Date and (b) so long as a Trigger Event is not in effect, to the holders
of the Class or Classes of LIBOR 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) the lesser of (x) the Principal Distribution Amount
and (y) the Class A Principal Distribution Amount to the Class A
Certificates, allocated as described in Section 4.02(c), until
their respective Class Certificate Balances are reduced to zero;
(b) 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 Sequential
Class M Principal Distribution Amount, to the Sequential Class M
Certificates allocated sequentially, first to the Class M-1
Certificates, then to the Class M-2 Certificates, and then to the
Class M-3 Certificates, in each case until their respective Class
Certificate Balances have been reduced to zero;
(c) 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 Sequential
Class M Certificates in clause (ii)(B)(b) above, and (y) the
Class M-4 Principal Distribution Amount, to the Class M-4
Certificates until their Class Certificate Balance has been
reduced to zero;
(d) 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 Sequential
Class M Certificates in clause (ii)(B)(b) above and to the Class
M-4 Certificates in clause (ii)(B)(c) above, and (y) the Class
M-5 Principal Distribution Amount, to the Class M-5 Certificates
until their Class Certificate Balance has been reduced to zero;
(e) 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 Sequential
Class M Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above and to the Class M-5
Certificates in clause (ii)(B)(d) above, and (y) the Class M-6
Principal Distribution Amount, to the Class M-6 Certificates
until their Class Certificate Balance has been reduced to zero;
(f) 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 Sequential
Class M Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above and to the Class M-6
Certificates in clause (ii)(B)(e) above, and (y) the Class M-7
Principal Distribution Amount, to the Class M-7 Certificates
until their Class Certificate Balance has been reduced to zero;
(g) 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 Sequential
Class M Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above, to the Class M-6
Certificates in clause (ii)(B)(e) above and to the Class M-7
Certificates in clause (ii)(B)(f) above, and (y) the Class M-8
Principal Distribution Amount, to the Class M-8 Certificates
until their Class Certificate Balance has been reduced to zero;
(h) 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 Sequential
Class M Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above, to the Class M-6
Certificates in clause (ii)(B)(e) above, to the Class M-7
Certificates in clause (ii)(B)(f) above and to the Class M-8
Certificates in clause (ii)(B)(g) above, and (y) the Class M-9
Principal Distribution Amount, to the Class M-9 Certificates
until their Class Certificate Balance has been reduced to zero;
(i) 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 Sequential
Class M Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above, to the Class M-6
Certificates in clause (ii)(B)(e) above, to the Class M-7
Certificates in clause (ii)(B)(f) above, to the Class M-8
Certificates in clause (ii)(B)(g) above and to the Class M-9
Certificates in clause (ii)(B)(h) above, and (y) the Class B-1
Principal Distribution Amount, to the Class B-1 Certificates
until their Class Certificate Balance has been reduced to zero;
(j) 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 Sequential
Class M Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above, to the Class M-6
Certificates in clause (ii)(B)(e) above, to the Class M-7
Certificates in clause (ii)(B)(f) above, to the Class M-8
Certificates in clause (ii)(B)(g) above, to the Class M-9
Certificates in clause (ii)(B)(h) above and to the Class B-1
Certificates in clause (ii)(B)(i) above, and (y) the Class B-2
Principal Distribution Amount, to the Class B-2 Certificates
until their Class Certificate Balance has been reduced to zero;
(iii) any amount remaining after the distributions in clauses
4.02(a)(i) and (ii) above shall be distributed in the following order of
priority:
(A) to the Class M-1 Certificates, any Unpaid Interest
Amount for such Class;
(B) to the Class M-2 Certificates, any Unpaid Interest
Amount for such Class;
(C) to the Class M-3 Certificates, any Unpaid Interest
Amount for such Class;
(D) to the Class M-4 Certificates, any Unpaid Interest
Amount for such Class;
(E) to the Class M-5 Certificates, any Unpaid Interest
Amount for such Class;
(F) to the Class M-6 Certificates, any Unpaid Interest
Amount for such Class;
(G) to the Class M-7 Certificates, any Unpaid Interest
Amount for such Class;
(H) to the Class M-8 Certificates, any Unpaid Interest
Amount for such Class;
(I) to the Class M-9 Certificates, any Unpaid Interest
Amount for such Class;
(J) to the Class B-1 Certificates, any Unpaid Interest
Amount for such Class;
(K) to the Class B-2 Certificates, any Unpaid Interest
Amount for such Class;
(L) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date;
(M) from funds on deposit in the Excess Reserve Fund
Account with respect to such Distribution Date, an amount equal
to any Basis Risk Carry Forward Amount with respect to the LIBOR
Certificates for such Distribution Date to such Classes in the
same order and priority as set forth in Section 4.02(a)(i), with
the allocation to the Class A Certificates being pro rata based
on their respective Basis Risk Carry Forward Amounts;
(N) to the Supplemental Interest Trust, the amount of any
Defaulted Swap Termination Payment;
(O) if a 40-Year Trigger Event is in effect, any remaining
amounts, first, to the Class A Certificates, allocated to those
Classes pursuant to Section 4.02(a)(iii)(c) below, and then
sequentially to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class B-1
and Class B-2 Certificates, in that order, the lesser of (x) any
remaining amounts and (y) the amount necessary to increase the
actual Overcollateralized Amount for such Distribution Date so
that a 40-Year Trigger Event is no longer in effect, in each
case, until their respective Class Certificate Balances have been
reduced to zero;
(P) to the Class X Certificates, the remainder of the
Class X Distributable Amount not distributed pursuant to Sections
4.02(a)(iii)(A)-(O);
(Q) to the Class RC Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-1;
(R) to the Class R Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC; and
(S) to the Class RX Certificates, any remaining amount, in
respect of the Class X REMIC.
Notwithstanding the foregoing, if the Stepdown Date is the date
on which the Class Certificate Balance of the Class A Certificates is reduced to
zero, any Principal Distribution Amount remaining after principal distributions
to the Class A Certificates pursuant to clause (ii)(A) above will be included as
part of the distributions pursuant to clause (ii)(B) above.
For purposes of this Agreement, any Net Swap Payments or Swap
Termination Payments (other than Defaulted Swap Termination Payments) shall be
allocated by the Securities Administrator between Loan Groups based on the
respective aggregate Stated Principal Balance of the Mortgage Loans in each Loan
Group.
(b) On each Distribution Date, all amounts representing
Prepayment Premiums from the Mortgage Loans received during the related
Prepayment Period shall be distributed by the Securities Administrator to the
holders of the Class P Certificates.
(c) All principal distributions allocated to the Class A
Certificates on any Distribution Date shall be allocated by the Securities
Administrator among the Class A-1 Certificate Group and the Class A-2
Certificate Group based on the Class A Principal Allocation Percentage for the
Class A-1 Certificate Group and the Class A-2 Certificate Group, as applicable.
However, if the Class Certificate Balances of the Class A Certificates in any
Class A Certificate Group is reduced to zero, then the remaining amount of
principal distributions distributable to the Class A Certificates in that Class
A Certificate Group on that Distribution Date, and the amount of principal
distributions distributable on all subsequent Distribution Dates, shall be
distributed by the Securities Administrator to the Class A Certificates of the
other Class A Certificate Group remaining Outstanding, in accordance with the
principal distribution allocations set forth in this Section 4.02(c), until
their respective Class Certificate Balances have been reduced to zero. Any
distributions of principal to the Class A-1 Certificate Group shall be made
first from Available Funds relating to the Group I Mortgage Loans. Any
distributions of principal to the Class A-2 Certificate Group shall be made
first from Available Funds relating to the Group II Mortgage Loans.
Any principal distributions allocated to the Class A-1
Certificate Group shall be distributed by the Securities Administrator to the
Class A-1 Certificates, until their Class Certificate Balance has been reduced
to zero.
Any principal distributions allocated to the Class A-2
Certificate Group shall be distributed by the Securities Administrator
sequentially to the Class A-2A Certificates, until their Class Certificate
Balance has been reduced to zero, then to the Class A-2B Certificates, until
their Class Certificate Balance has been reduced to zero, then to the Class A-2C
Certificates, until their Class Certificate Balance has been reduced to zero and
then to the Class A-2D Certificates, until their Class Certificate Balance has
been reduced to zero.
Notwithstanding the allocation of principal to the Class A
Certificates described in the preceding paragraphs, from and after the
Distribution Date on which the aggregate Class Certificate Balances of the
Subordinated Certificates and the principal balance of the Class X Certificates
have been reduced to zero, any principal distributions allocated to the Class A
Certificates are required to be allocated by the Securities Administrator pro
rata to the Class A Certificates, based on their respective Certificate
Principal Balances, until their respective Class Certificate Balances have been
reduced to zero.
(d) On any Distribution Date, any Relief Act Shortfalls and Net
Prepayment Interest Shortfalls for such Distribution Date shall be allocated by
the Securities Administrator as a reduction in the following order:
(1) First, to the portion of the Class X
Distributable Amount allocable to interest; and
(2) Second, pro rata, as a reduction of the Accrued
Certificate Interest Distribution Amount for the Class A,
Class M and Class B Certificates, based on the amount of
interest to which such Classes would otherwise be
entitled.
(e) Notwithstanding any other provision of this Agreement, the
Securities Administrator shall comply with all federal withholding requirements
respecting payments made or received under the Interest Rate Swap Agreement and
Interest Rate Cap Agreement and payments to Certificateholders of interest or
original issue discount that the Securities Administrator reasonably believes
are applicable under the Code. The consent of Certificateholders shall not be
required for such withholding. If the Securities Administrator does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the
Securities Administrator shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
Section 4.03 Monthly Statements to Certificateholders. (a) Not
later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Master Servicer, the Servicers, the
Depositor, the Trustee and each Rating Agency a statement setting forth with
respect to the related distribution:
(i) the actual Distribution Date, the related Record Date, the
Interest Accrual Period(s) for each Class for such Distribution Date and
the LIBOR Determination Date for such Interest Accrual Period;
(ii) the amount of Available Funds;
(iii) the amount of Available Funds allocable to principal, the
Principal Remittance Amount (separately identifying the components
thereof) and the Principal Distribution Amount (separately identifying
the components thereof);
(iv) the amount of Available Funds allocable to interest and each
Interest Remittance Amount;
(v) the amount of any Unpaid Interest Amount for each Class
included in such distribution and any remaining Unpaid Interest Amounts
after giving effect to such distribution, any Basis Risk Carry Forward
Amount for each Class and the amount of such Basis Risk Carry Forward
Amount covered by withdrawals from the Excess Reserve Fund Account on
such Distribution Date;
(vi) 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 of the shortfall as between
principal and interest, including any Basis Risk Carry Forward Amount
not covered by amounts in the Excess Reserve Fund Account;
(vii) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on such
Distribution Date;
(viii) the Pool Stated Principal Balance for the related
Distribution Date;
(ix) the amount of Expense Fees paid to or retained by the
Servicers, the Securities Administrator and the Master Servicer (stated
separately and in the aggregate) with respect to such Distribution Date;
(x) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(xi) the amount of Advances included in the distribution on such
Distribution Date reported by the Servicers (and the Master Servicer as
successor servicer and any other successor servicer, if applicable) as
of the close of business on the Determination Date immediately preceding
such Distribution Date;
(xii) the number and aggregate Stated Principal Balance of such
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days, and 90+ days, (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 day of the related Due Period;
(xiii) for each of the preceding 12 calendar months, or all
calendar months since the related Cut-off Date, whichever is less, the
aggregate dollar amount of the Scheduled Payments (A) due on all
Outstanding Mortgage Loans on each of the Due Dates in each such month
and (B) delinquent 60 days or more on each of the Due Dates in each such
month;
(xiv) the total number and outstanding principal balance of any
REO Properties (and market value, if available) as of the close of
business on the last Business Day of the related Due Period;
(xv) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger
Event and the aggregate outstanding principal balance of all 60+ Day
Delinquent Mortgage Loans);
(xvi) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xvii) 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;
(xviii) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation of it to the Certificateholders
with respect to Unpaid Interest Amounts, Applied Realized Loss Amounts
and Basis Risk Carry Forward Amounts;
(xix) the amount of any Cap Payments, Net Swap Payments, Net Swap
Receipts, Swap Termination Payments or Defaulted Swap Termination
Payments;
(xx) the LIBOR and Swap LIBOR rates (and the calculation thereof,
if applicable);
(xxi) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xxii) Prepayment Charges collected or paid (pursuant to Section
3.07(a)) by the Servicers;
(xxiii) the Cumulative Realized Loss Percentage and the aggregate
amount of Realized Losses used to calculate the Cumulative Realized Loss
Percentage;
(xxiv) the amount distributed on the Class X Certificates;
(xxv) the amount of any Subsequent Recoveries for such
Distribution Date; and
(xxvi) the number of Mortgage Loans at the beginning and end of
the applicable reporting period, the pool factor (being the Stated
Principal Balance of the Mortgage Loans for the related Distribution
Date divided by the Cut-off Date Principal Balance), the weighted
average interest rate, and the weighted average remaining term.
In addition, each Form 10-D prepared and filed by the Securities
Administrator pursuant to Section 8.12 shall include the following information
with respect to the related distribution:
(1) material breaches of Mortgage Loan representations and
warranties of which the Securities Administrator has actual knowledge or
has received written notice; and
(2) material breaches of any covenants under this Agreement of
which the Securities Administrator has actual knowledge or has received
written notice;
provided, that, if the Securities Administrator receives written notice of
events described in (1) and/or (2) above from the Servicers, the Servicers shall
be responsible for providing information to the Securities Administrator for
inclusion in the applicable Form 10-D.
(b) The Securities Administrator's responsibility for providing
the above statement to the Certificateholders, each Rating Agency, the Trustee,
the Master Servicer, the Servicers and the Depositor is limited, if applicable,
to the availability, timeliness and accuracy of the information derived from the
Responsible Party, the Master Servicer and the Servicers. The Securities
Administrator shall make available the above statement via the Securities
Administrator's internet website. The Securities Administrator's website will
initially be located at xxxx://xxx.xxxxxxx.xxx and assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at (000) 000-0000. A paper copy of the above statement will also be
made available upon request.
The Securities Administrator shall make available to each
Analytics Company, either electronically or via the Securities Administrator's
internet website, each statement to Certificateholders prepared pursuant to
Section 4.03(a). The Securities Administrator and the applicable Servicer shall
cooperate in good faith with the Depositor to reconcile any discrepancies in
such statements, and the Securities Administrator shall make available via its
Internet website any corrections to such statements to each Analytics Company as
soon as reasonably practicable after the related Distribution Date.
(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)(1) and (a)(2) 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.
(d) Not later than the Determination Date for each Distribution
Date, the applicable Servicer shall furnish to the Depositor with respect to
clause (i) below and the Securities Administrator with respect to clause (ii)
below, a monthly remittance advice statement (the "Servicer Remittance Report")
substantially similar to the format set forth in Exhibit Y hereto, a monthly
defaulted loan report substantially similar to the format set forth in Exhibit Z
hereto and a realized loss report substantially similar to the format set forth
in Exhibit AA hereto (or in such other format mutually agreed to among the
Depositor, the Servicers, and the Master Servicer) relating to the period ending
on the last day of the preceding calendar month containing such information as
shall be reasonably requested (i) by the Depositor to enable the Depositor to
disclose "static pool information", as required by Item 1105 of Regulation AB,
with respect to the Mortgage Loans, and (ii) by the Securities Administrator to
enable the Securities Administrator to provide the reports required by Section
4.03(a) as to the accompanying remittance and the period ending on the close of
business on the last day of the related Prepayment Period. The applicable
Servicer shall concurrently deliver to the Depositor a data tape, in form and
substance reasonably satisfactory to the Depositor, containing the information
required pursuant to this Section 4.03(d) on a loan-by-loan basis for all of the
Mortgage Loans. The Depositor will use the information required pursuant to this
Section 4.03(d) in compliance with applicable law.
Each Servicer shall furnish to the Securities Administrator an
individual loan accounting report, as of the last Business Day of each month, to
document Mortgage Loan payment activity on an individual Mortgage Loan basis.
With respect to each month, the corresponding individual loan accounting report
(in electronic format) shall be received by the Securities Administrator no
later than the Reporting Date, which report shall, at a minimum, contain the
following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on
Principal Prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by such
Servicer during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(v) the aggregate of any expenses reimbursed to such Servicer
during the prior distribution period pursuant to Section 3.11;
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent 31 to 60 days, 61 to 90 days and 90+ days;
(b) as to which foreclosure or bankruptcy proceedings of the related
mortgagor have commenced; and (c) as to which REO Property has been
acquired;
(vii) each Mortgage Loan which has been altered, modified or
varied during such month, and the reason for such modification (i.e.,
extension of maturity date, Mortgage Interest Rate);
(viii) with respect to each Liquidated Mortgage Loan, the amount
of any Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Securities
Administrator to enable it to prepare the Monthly Statement referred to
in Section 4.03(a).
(e) For all purposes of this Agreement, with respect to any
Mortgage Loan, delinquencies shall be determined and reported based on the
so-called "OTS" methodology for determining delinquencies on mortgage loans
similar to the Mortgage Loans. By way of example, a Mortgage Loan would be
delinquent with respect to a Scheduled Payment due on a Due Date if such
Scheduled Payment is not made by the close of business on the Mortgage Loan's
next succeeding Due Date, and a Mortgage Loan would be more than 30-days
Delinquent with respect to such Scheduled Payment if such Scheduled Payment were
not made by the close of business on the Mortgage Loan's second succeeding Due
Date. Each Servicer hereby represents and warrants that, as of the Closing Date,
such Servicer does not have a safety and soundness regulator that requires such
Servicer to conform to any delinquency recognition policy.
Section 4.04 Certain Matters Relating to the Determination of
LIBOR. LIBOR shall be calculated by the Securities Administrator in accordance
with the definition of "LIBOR." Until all of the LIBOR Certificates are paid in
full, the Securities Administrator shall at all times retain at least four
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 Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Securities Administrator
on each LIBOR Determination Date so long as the LIBOR Certificates are
Outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate, the
Trustee and the Securities Administrator.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
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 LIBOR Certificates, their
Class Certificate Balances shall be reduced by the amount so allocated, and no
funds will be distributable with respect to the written down amounts (including
without limitation Basis Risk Carry Forward Amounts) or with respect to interest
on the written down amounts on that Distribution Date or any future Distribution
Dates, even if funds are otherwise available for distribution. 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 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 4.06 Supplemental Interest Trust. On the Closing Date,
the Securities Administrator shall establish and maintain in its name, a
separate non-interest bearing trust account for the benefit of the holders of
the LIBOR Certificates (the "Supplemental Interest Trust") as a part of the
Trust Fund. The Supplemental Interest Trust 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 Securities Administrator held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider, Net Swap Receipts and Cap Payments for that
Distribution Date will be deposited into the Supplemental Interest Trust. Funds
in the Supplemental Interest Trust will be distributed in the following order of
priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments
and (y) any Swap Termination Payment, other than a Defaulted Swap
Termination Payment, to the Swap Provider, if any, owed for that
Distribution Date (to the extent not previously paid to the Swap
Provider as a Replacement Swap Provider Payment);
(ii) to the LIBOR Certificateholders, to pay Accrued Certificate
Interest Distribution Amounts (including for this purpose Upper-Tier
Carry-Forward Amounts not included in Basis Risk Carry Forward Amounts)
and, if applicable, any Unpaid Interest Amounts as described in Section
4.02(a)(i), to the extent unpaid from Available Funds;
(iii) to the LIBOR Certificateholders, to pay principal as
described in Section 4.02(a)(ii), but only to the extent necessary to
restore the Overcollateralized Amount to the Specified
Overcollateralized Amount as a result of current or prior Realized
Losses not previously reimbursed, after giving effect to payments and
distributions from Available Funds;
(iv) to the LIBOR Certificateholders, to pay Unpaid Interest
Amounts and Basis Risk Carry Forward Amounts as described in Section
4.02(a)(iii), to the extent unpaid from Available Funds (including Basis
Risk Payments on deposit in the Excess Reserve Fund Account);
(v) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(vi) to the holders of the Class X Certificates, any remaining
amounts.
Notwithstanding the foregoing, in the event that the Trust
receives a Swap Termination Payment and a successor Swap Provider cannot be
obtained, then the Securities Administrator shall deposit the Swap Termination
Payment into the reserve account that is a sub-account of the Supplemental
Interest Trust. On each subsequent Distribution Date (so long as funds are
available in the reserve account), the Securities Administrator shall withdraw
from the reserve account and deposit into the Supplemental Interest Trust an
amount equal to the amount of any Net Swap Receipt due the Trust (calculated in
accordance with the terms of the original Interest Rate Swap Agreement) and
treat such amount as a Net Swap Receipt for purposes of determining the
distributions from the Supplemental Interest Trust. The remaining amount in the
reserve account shall remain in such account and shall not be treated as a Swap
Termination Payment for purposes of determining the distributions from the
Supplemental Interest Trust until the final Distribution Date.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Trust shall be distributed pursuant to the priorities set
forth in this Section 4.06.
The Securities Administrator shall account for the Supplemental
Interest Trust as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Supplemental Interest Trust are
the Class X Certificateholders. For federal income tax purposes, Net Swap
Payments and Swap Termination Payments payable to the Swap Provider from
Available Funds shall be deemed to be paid to the Supplemental Interest Trust
first, from the Class X REMIC, by the Holder of the Class X Certificates (in
respect of the Class IO Interest and, if applicable, Class X Interest) and
second, other than any Defaulted Swap Termination Payment, from the Upper-Tier
REMIC by the Holders of the applicable Class or Classes of LIBOR Certificates
(in respect of Class IO Shortfalls) as and to the extent provided in Section
8.13.
Any Basis Risk Carry Forward Amounts and, without duplication,
Upper-Tier Carry Forward Amounts distributed by the Securities Administrator to
the LIBOR 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 in respect of the Class X Interest and (to
the extent remaining after payments to the Swap Provider) the Class IO Interest,
or in respect of the Interest Rate Swap Agreement or Interest Rate Cap
Agreement, and then to the respective Class or Classes of LIBOR Certificates. In
addition, the Securities Administrator shall account for the rights of Holders
of each Class of LIBOR Certificates to receive payments of Basis Risk Carry
Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts from
the Supplemental Interest Trust (along with Basis Risk Carry Forward Amounts
payable from the Excess Reserve Fund Account), subject to the obligation to pay
Class IO Shortfalls, as rights and obligations pursuant to a separate limited
recourse notional principal contract between the Class X Certificateholders and
Holders of each such Class.
The Supplemental Interest Trust shall be an "outside reserve
fund" for federal income tax purposes and not 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.
With respect to the failure of either of the Swap Provider or the
Cap Provider to perform any of its obligations under the Interest Rate Swap
Agreement or the Interest Rate Cap Agreement, as applicable, the breach by
either of the Swap Provider or the Cap Provider of any of its representations
and warranties made pursuant to the Interest Rate Swap Agreement or the Interest
Rate Cap Agreement, as applicable, or the termination of the Interest Rate Swap
Agreement, the Securities Administrator shall send any notices and make any
demands, on behalf of the Trust, as are required under the Interest Rate Swap
Agreement or the Interest Rate Cap Agreement, as applicable. The Securities
Administrator shall cause any replacement swap provider to provide a copy of the
related replacement interest rate swap agreement to the Securities Administrator
and the Depositor.
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 which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class P and Class X Certificates in the name of the Depositor or
its designee. On a date as to which the Depositor notifies the Securities
Administrator, the Securities Administrator shall 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 offices 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 or facsimile
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, or
cause to be maintained 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 of the Depositor 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.
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 the Securities Act and such state securities
laws. Except with respect to (i) the transfer of the Class X, Class P or a
Residual Certificate to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor or
(iv) a transfer of a Residual Certificate to a Servicer, an Affiliate of a
Servicer, or its designee (including, without limitation, an employee of such
Servicer who is an "accredited investor" as defined in Regulation D under the
Securities Act), 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 I (the "Transferor
Certificate") and either (i) there shall be delivered to the Securities
Administrator a letter in substantially the form of Exhibit J (the "Rule 144A
Letter") or Exhibit K (the "Non-Rule 144A Investment Letter") or (ii) in the
case of the Class X Certificates, 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. A transferee of any
Private Certificates who is not a "qualified institutional buyer" as that term
is defined in Rule 144A of the Securities Act must take delivery of such Private
Certificates in definitive form. 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. To the extent of any information
reasonably within the possession of the applicable party, the Securities
Administrator, the Master Servicer and each Servicer 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 Securities
Administrator, the Master Servicer, the Depositor and each Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Except with respect to (i) the transfer of a Residual, Class X or
Class P Certificates to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor or
(iv) a transfer of a Residual Certificate to the applicable Servicer, an
Affiliate of such Servicer, or its designee (including, without limitation, an
employee of the applicable Servicer who is an "accredited investor" as defined
in Regulation D under the Securities Act), 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 I), 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 (collectively, a "Plan") to
effect such transfer, (ii) in the case of an ERISA-Restricted Certificate other
than a Residual Certificate or a Class P Certificate that has been the subject
of an ERISA-Qualifying Underwriting and the purchaser is an insurance company, 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 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the
case of any such ERISA-Restricted Certificate other than a Residual Certificate
or a Class P Certificate presented for registration in the name of a Plan, an
Opinion of Counsel satisfactory to the Securities Administrator, which Opinion
of Counsel shall not be an expense of the Securities Administrator, the Trustee,
the Depositor, the Servicers or the Trust Fund, addressed to the Securities
Administrator, to the effect that the purchase or 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 Securities Administrator,
the Master Servicer, the Depositor or the Servicers 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 Physical 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. Notwithstanding anything else to the contrary
herein, (a) any purported transfer of an ERISA Restricted Certificate, other
than a Class P Certificate or a Residual Certificate, to or on behalf of an
employee benefit plan subject to ERISA, the Code or Similar Law without the
delivery to the Securities Administrator of an Opinion of Counsel satisfactory
to the Securities Administrator as described above shall be void and of no
effect and (b) any purported transfer of a Class P Certificate or Residual
Certificate to a transferee that does not make the representation in clause (i)
above shall be void and of no effect.
The Residual Certificates and Class P 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.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA-Restricted Certificate
that is in fact not permitted by this Section 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.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate other than an ERISA Restricted Certificate, or
any interest therein, shall be deemed to have represented that either (i) it is
not a Plan or (ii) the acquisition and holding of the Certificate are eligible
for the exemptive relief available under at least one of the Investor-Based
Exemptions.
(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) Except in the case of the Depositor or an Affiliate of the
Depositor that is a Permitted Transferee, 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 paragraph (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
H;
(iii) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its
Ownership Interest in a Residual Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Residual
Certificate and (C) not to Transfer its Ownership Interest in a Residual
Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall vest no
rights in the purported Transferee. If any purported transferee shall
become a Holder of a Residual Certificate in violation of the provisions
of this Section 5.02(c), then the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the
date of registration of Transfer of such Residual Certificate. The
Securities Administrator shall be under no 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 so long as the Transfer was registered after receipt of the
related Transfer Affidavit, Transferor Certificate and the Rule 144A
Letter. 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
Depositor, the Responsible Party, the Trustee, the Securities Administrator or
the Servicers, to the effect that the elimination of such restrictions will not
cause any Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are Outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel furnished to
the Securities Administrator, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall
at all times remain registered in the name of the Depository or its nominee and
at all times: (i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the 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
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 and, upon receipt of notice of such intent from
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. None of the Servicers, the Depositor or
the Securities Administrator shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Securities Administrator
with an adequate inventory of Certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Securities Administrator, to the extent applicable with respect to such
Definitive Certificates and the Securities Administrator shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Securities Administrator shall not by virtue of its
assumption of such obligations become liable to any party for any act or failure
to act of the Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or its attorney duly
authorized in writing (with copies to the Swap Provider). The Securities
Administrator shall forward any such IRS Form (other than with respect to a
Residual Certificate) received to the Swap Provider at 30 Xxxxxx, 00xx xxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx 00000, attention: Xxxxxxx Xxxxxx. Each Private
Certificateholder by its purchase of a Certificate is deemed to consent to any
such IRS Form being so forwarded.
(g) Each Certificate presented or surrendered for registration of
transfer or exchange shall be cancelled 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 Servicers, the Master Servicer, 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 bona fide 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 Servicers, the Securities
Administrator, the Master Servicer, the Trustee, the Depositor and any agent of
the Servicers, the Depositor, the Securities Administrator, the Master Servicer
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 Servicers, the Master Servicer, the Securities Administrator, the Trustee,
the Depositor or any agent of the Servicers, the Securities Administrator, the
Master Servicer, the Depositor 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 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, the Trustee or a Servicer shall request such
information in writing from the Securities Administrator, then the Securities
Administrator shall, within ten Business Days after the receipt of such request,
provide the Depositor, the Trustee, such Servicer or the Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Securities Administrator, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Securities Administrator shall not be held accountable by reason of the
disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or offices or agency or agencies in the United States where Certificates may be
surrendered for registration of transfer or exchange. The Securities
Administrator initially designates its Corporate Trust Office for registration
of transfer or exchange purposes located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - GSAMP
2007-NC1. The Securities Administrator shall give prompt written notice to the
Certificateholders of any change in such location of any such office or agency,
for purposes of the surrender of Certificates for the final distribution.
ARTICLE VI
THE DEPOSITOR AND THE SERVICERS
Section 6.01 Respective Liabilities of the Depositor and the
Servicers. The Depositor and each of the Servicers shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or a
Servicer. (a) The Depositor and each Servicer will each keep in full effect its
existence, rights and franchises as a Delaware corporation, limited partnership,
a corporation or limited liability company, 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, limited partnership, a corporation or limited liability company, as
applicable, 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.
(b) Any Person into which the Depositor or a Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or a Servicer shall be a party, or any Person succeeding
to the business of the Depositor or a Servicer, shall be the successor of the
Depositor or such Servicer, 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; provided, however, that
the successor or surviving Person to such Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, Xxxxxx Xxx or
Xxxxxxx Mac, and meets the requirements of Section 7.02, and provided, further,
that such merger, consolidation or succession does not adversely affect the then
current rating or ratings on the LIBOR Certificates. As a condition to the
succession to any Servicer under this Agreement by any Person (i) into which a
Servicer may be merged or consolidated, or (ii) which may be appointed as a
successor to a Servicer, such Servicer shall provide to the Depositor, the
Securities Administrator and the Master Servicer, at least 30 calendar days
prior to the effective date of such succession or appointment, (x) written
notice to the Depositor, the Securities Administrator and the Master Servicer of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, the Securities Administrator and the
Master Servicer, all information reasonably necessary to enable the Securities
Administrator, pursuant to Section 8.12(g), to accurately and timely report the
event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports
under the Exchange Act are required to be filed under the Exchange Act).
Section 6.03 Limitation on Liability of the Depositor, the
Servicers and Others. Neither the Depositor, the Servicers nor any of their
respective 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, the Servicers or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor, the
Servicers or any such Person from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or negligence (or gross negligence
in the case of the Depositor) in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The Depositor, each
Servicer and any director, officer, employee or agent of the Depositor and each
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Sponsor, each Servicer and any director, officer, employee,
Affiliate or agent of the Depositor, the Sponsor or each Servicer 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 or any other unanticipated or
extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence (or gross negligence in
the case of the Depositor) in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. Neither the Depositor
nor any Servicer shall 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 each of the Depositor and each Servicer may in its discretion
undertake any such action (or the Depositor may direct the Trustee to undertake
such actions pursuant to Section 2.07 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, and the applicable Servicer
(and the Trustee if directed by the Depositor to take such action) shall be
entitled to be reimbursed therefor out of the Collection Account.
Section 6.04 Limitation on Resignation of a Servicer. Subject to
the provisions of Section 6.02, Section 7.01 and the fourth paragraph of Section
7.02, no Servicer shall assign this Agreement or resign from the obligations and
duties hereby imposed on it except (i) by mutual consent of the applicable
Servicer, the Depositor and the Securities Administrator, (ii) upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by such Servicer or (iii)
upon satisfaction of the following conditions: (a) the applicable Servicer has
proposed a successor servicer to the Securities Administrator in writing; and
(b) each Rating Agency shall have delivered a letter to the Securities
Administrator prior to the appointment of the successor servicer stating that
the proposed appointment of such successor servicer as a Servicer hereunder will
not result in the reduction or withdrawal of the then current rating of the
Regular Certificates or the ratings that are in effect. Any such determination
permitting the resignation of a Servicer under clause (ii) above shall be
evidenced by an Opinion of Counsel (which opinion shall not be an expense of the
Master Servicer, the Securities Administrator, the Trustee or the Trust Fund) to
such effect delivered to the Depositor, the Trustee, the Master Servicer and the
Securities Administrator which Opinion of Counsel shall be in form and substance
acceptable to the Depositor, the Trustee, the Master Servicer and the Securities
Administrator. No such resignation shall become effective until a successor
shall have assumed the Servicer's responsibilities and obligations hereunder.
Section 6.05 Additional Indemnification by the Servicers; Third
Party Claims.
(a) Each Servicer shall indemnify the Depositor, the Sponsor, the
Responsible Party, the Master Servicer, the Securities Administrator and the
Trustee and any Affiliate, director, officer, employee or agent of the
Depositor, the Sponsor, the Responsible Party, the Master Servicer, the
Securities Administrator and the Trustee and hold each of them harmless against
any and all claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other costs, fees
and expenses that any of them may sustain in any way related to any breach by
such Servicer of (i) any of its representations and warranties referred to in
Section 2.03(a), (ii) any error in any tax or information return prepared by
such Servicer, or (iii) the failure of such Servicer to perform its duties and
service the Mortgage Loans in compliance with the terms of this Agreement
(including, without limitation, the failure to deliver accurate and complete
information on a timely basis pursuant to Section 4.03(d)). The applicable
Servicer immediately shall notify the Depositor, the Responsible Party, the
Master Servicer, the Securities Administrator and the Trustee if such claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Depositor, the Responsible Party,
the Master Servicer, the Securities Administrator and the Trustee) the defense
of any such claim and pay all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or the Depositor, the Responsible Party,
the Master Servicer, the Securities Administrator or the Trustee in respect of
such claim.
(b) Notwithstanding anything to the contrary contained in this
Agreement, each Servicer shall indemnify the Depositor, the Master Servicer, the
Securities Administrator, the Sponsor, the Trustee and any director, officer,
employee or agent of the Depositor, the Sponsor, the Master Servicer, the
Securities Administrator or the Trustee and hold them harmless against any and
all claims, economic losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other related
costs, fees and expenses that any of them actually sustain, in each case that
are likely foreseeable and directly related to any failure by such Servicer or
any Subservicer engaged by such Servicer or any Subcontractor utilized by such
Servicer to deliver any information, report, certification or accountants'
letter when and as required under Sections 3.22, 3.23, 6.02 or 8.12, including
without limitation any failure by such Servicer to identify pursuant to Section
3.02(e) any Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation ABIf the indemnification provided for in this
Section 6.05 is unavailable or insufficient to hold harmless any Person entitled
to indemnification thereunder, then the applicable Servicer shall contribute to
the amount paid or payable to the party to be indemnified as a result of the
losses, claims, damages or liabilities of such Person in such proportion as is
appropriate to reflect the relative fault of such Person on the one hand and
such Servicer, on the other, in connection with a breach of such Servicer's
obligations pursuant to this Section 6.05. This Section 6.05 shall survive the
termination of this Agreement or the earlier resignation or removal of the
applicable Servicer.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means with respect to each Servicer individually, any one of the
following events:
(a) any failure by a Servicer to remit to the Securities
Administrator any payment required to be made under the terms of this Agreement
which continues unremedied for a period of one Business Day after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to such Servicer by the Depositor, or by the Securities
Administrator, or to such Servicer, the Depositor, the Master Servicer, the
Securities Administrator and the Trustee by Certificateholders entitled to at
least 25% of the Voting Rights; or
(b) any failure on the part of a Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of such Servicer set forth in this Agreement which continues unremedied for
a period of thirty (30) days (except that (x) such number of days shall be
fifteen in the case of a failure to pay any premium for any insurance policy
required to be maintained under this Agreement, (y) there shall be no cure
period in the case of the failure to perform any of the obligations set forth in
Sections 3.22 and 3.23 and (z) such number of days shall be ten in the case of a
failure to observe or perform any of the obligations set forth in Sections 3.02,
6.02, 6.04 or 8.12; provided, however, that in the event that the Commission
grants an extension of time to the Depositor with respect to the Exchange Act
filings referenced in Section 8.12(a), such ten day cure period shall be
extended by the same time period) after the earlier of (i) the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to such Servicer by the Depositor, the Securities Administrator or
the Master Servicer, or to such Servicer, the Depositor, the Securities
Administrator, the Master Servicer and the Trustee by Certificateholders of
Certificates entitled to at least 25% of the Voting Rights and (ii) actual
knowledge of such failure by a Servicing Officer of such Servicer; provided,
however, that (except with respect to clauses (x), (y) and (z) above) in the
case of a failure or breach that cannot be cured within 30 days after notice or
actual knowledge by such Servicer, the cure period may be extended for an
additional 30 days upon delivery by such Servicer to the Securities
Administrator of a certificate to the effect that such Servicer believes in good
faith that the failure or breach can be cured within such additional time period
and such Servicer is diligently pursuing remedial action; or
(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, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against a Servicer and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(d) a Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to a
Servicer or of or relating to all or substantially all of its property; or
(e) a Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations; or
(f) any failure of a Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(g) if a Cumulative Loss Event occurs.
If an Event of Default described in clauses (a) through (g) of
this Section 7.01 shall occur, then, and in each and every such case, so long as
such Event of Default shall not have been remedied, the Master Servicer may, or
at the direction of Certificateholders entitled to a majority of the Voting
Rights the Master Servicer shall, by notice in writing to the applicable
Servicer (with a copy to each Rating Agency), terminate all of the rights and
obligations of the applicable Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder; provided, however, that the Master Servicer shall
not be required to give written notice to such Servicer of the occurrence of an
Event of Default described in clauses (b) through (g) of this Section 7.01
unless and until a Responsible Officer of the Master Servicer has actual
knowledge of the occurrence of such an Event of Default. In the event that a
Responsible Officer of the Master Servicer has actual knowledge of the
occurrence of an Event of Default described in clause (a) of this Section 7.01
(i.e., solely as to a default caused by a failure to remit timely on a
Remittance Date), the Master Servicer shall give notice (by telephone or by
email, facsimile or other writing) to such Servicer of the occurrence of such
default by the end of business of the day on which such Responsible Officer
obtains actual knowledge of such occurrence; provided that failure to give such
notice shall not constitute a waiver of such default or event of default. In the
event that a Responsible Officer of the Master Servicer has actual knowledge of
the occurrence of an Event of Default described in clause (a) of this Section
7.01, the Master Servicer shall give written notice to such Servicer of the
occurrence of such an event within one Business Day of the first day on which
such Responsible Officer obtains actual knowledge of such occurrence; provided
that failure to give such notice shall not constitute a waiver of such Event of
Default. The Master Servicer, upon a Responsible Officer having actual knowledge
of such default, shall deliver a written notice to such Servicer of the default
on any Remittance Date on which such Servicer fails to make any deposit or
payment required pursuant to this Agreement (including, but not limited to
Advances, to the extent required by this Agreement); provided, however, that if
an Event of Default occurs due to the failure of such Servicer to make an
Advance to the extent required, the Master Servicer, as successor Servicer, or
another successor Servicer shall, prior to the applicable Distribution Date,
immediately make such Advance. Any such notice to such Servicer shall also be
given to the Trustee, each Rating Agency and the Depositor. Notwithstanding any
other provision of this Agreement, any remedy with respect to clause (a) of this
Section 7.01 shall be effective only if payment is received by the Master
Servicer by no later than noon (Eastern time) on the Business Day immediately
following the date of notice to such Servicer as set forth in the immediately
preceding sentence. If such Servicer fails to make such payment, the Master
Servicer shall send notice of termination (by email, facsimile or other writing)
to such Servicer, and, on and after the receipt by such Servicer of such notice,
or upon receipt by such Servicer of notice with respect to any other clause of
this Section 7.01, all authority and power of such Servicer hereunder, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the Master Servicer as the successor 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. Unless expressly provided in such written notice, no such termination
shall affect any obligation of such Servicer to pay amounts owed pursuant to
this Agreement. Each Servicer agrees to cooperate with the Master Servicer in
effecting the termination of such Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to the Master Servicer of
all cash amounts which shall at the time be credited to the Collection Account
of such predecessor Servicer, or thereafter be received with respect to the
Mortgage Loans.
Notwithstanding any termination of the activities of a Servicer
hereunder, such Servicer shall be entitled to receive from the Trust Fund, prior
to transfer of its servicing obligations hereunder, payment of all accrued and
unpaid portion of the Servicing Fees to which such Servicer would have been
entitled and to continue to receive reimbursement for all outstanding P&I
Advances and Servicing Advances in accordance with the terms of this Agreement.
Section 7.02 Master Servicer to Act; Appointment of Successor
Servicer. On and after the time the Master Servicer gives, and a Servicer
receives, a notice of termination pursuant to Section 7.01, the Master Servicer
shall, subject to and to the extent provided in Section 3.06, be the successor
to such Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on such
Servicer by the terms and provisions hereof and applicable law, including the
obligation to make P&I Advances or Servicing Advances pursuant to Section 4.01,
as soon as practicable but in no event later than 90 days following the notice
of termination or removal of the Servicer. As compensation therefor, the Master
Servicer shall be entitled to all funds relating to the Mortgage Loans that such
Servicer would have been entitled to charge to the Collection Account if such
Servicer had continued to act hereunder including, if such Servicer was
receiving the Servicing Fee, the Servicing Fee and the income on investments or
gain related to the Collection Account (in addition to income on investments or
gain related to the Distribution Account for the benefit of the Securities
Administrator). Notwithstanding the foregoing, if the Master Servicer has become
the successor to such Servicer in accordance with this Section 7.02, the Master
Servicer may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making P&I Advances and Servicing Advances pursuant to
Section 4.01 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 hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of such Servicer hereunder. Any
successor to such Servicer shall be an institution which is a Xxxxxx Xxx- and
Xxxxxxx Mac-approved seller/servicer in good standing, which has a net worth of
at least $30,000,000, 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 Servicer (other than liabilities of such Servicer under
Section 6.03 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 Section 3.05,
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 and amounts paid to such
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
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 such
Servicer to deliver or provide, or any delay in delivering or providing, any
cash, information, documents or records to it.
In the event that a Servicer is terminated pursuant to Section
7.01, such terminated Servicer shall provide notices to the Mortgagors, transfer
the Servicing Files to a successor Servicer and pay all of its own out-of-pocket
costs and expenses at its own expense. In addition, all Servicing Transfer Costs
incurred by parties other than the terminated Servicer (excluding set-up costs
and other administrative expenses of the successor Servicer, in which case the
successor Servicer shall pay for such costs and expenses but shall not be
entitled to reimbursement therefor from the Trust Fund, or if the successor
servicer fails to pay, the Securities Administrator pays such amounts from the
Trust Fund), such an amount shall be paid by the terminated Servicer promptly
upon presentation of reasonable documentation of such costs. If the Master
Servicer is the predecessor Servicer (except in the case where the Master
Servicer in its role as successor Servicer is being terminated pursuant to
Section 7.01 by reason of an Event of Default caused solely by the Master
Servicer as the successor Servicer and not by the predecessor Servicer's actions
or omissions), such costs shall be paid by the prior terminated Servicer
promptly upon presentation of reasonable documentation of such costs.
Any successor to a Servicer as 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 such Servicer is required to maintain pursuant
to Section 3.13.
Any such successor Servicer shall be required to satisfy the
requirements of a successor Servicer under this Section 7.02.
Section 7.03 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 the Trustee, the
Certificateholders, and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default,
the Securities Administrator shall transmit by mail to all Certificateholders
and each Rating Agency notice of each such Event of Default hereunder known to
the Securities Administrator, unless such Event of Default shall have been cured
or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee 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. The Trustee shall not 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 from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance.
Unless a Master Servicer Event of Default known to a Responsible
Officer of the Trustee has occurred and is continuing,
(a) 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 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.
The Master Servicer or Trustee, as applicable, shall be permitted
to utilize one or more Subcontractors for the performance of certain of its
obligations under this Agreement, provided that the Master Servicer or Trustee,
as applicable, complies with Section 3.02(e) as if the Master Servicer or
Trustee, as applicable, were a "Servicer" pursuant to that Section. The Master
Servicer or Trustee, as applicable, shall indemnify the Depositor, the
Securities Administrator, the Master Servicer, the Sponsor and any director,
officer, employee or agent of the Depositor or the Sponsor and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any way
related to the failure of the Master Servicer or Trustee, as applicable, to
perform any of its obligations under Section 3.22 or Section 3.23, including
without limitation any failure by the Master Servicer or Trustee, as applicable,
to identify pursuant to Section 3.02(e) any Subcontractor that is a Servicing
Function Participant. This indemnity shall survive the termination of this
Agreement or the earlier resignation or removal of the Master Servicer or
Trustee, as applicable.
Section 8.02 Certain Matters Affecting the Custodian and the
Trustee. Except as otherwise provided in Section 8.01:
(a) the Custodian and the Trustee may request and rely upon and
shall be 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 neither
Custodian nor the Trustee shall have any responsibility to ascertain or confirm
the genuineness of any signature of any such party or parties;
(b) the Custodian and the Trustee 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 Opinion of
Counsel;
(c) neither Custodian nor the Trustee shall 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, nor shall either the Trustee or the Custodian be liable for acts
or omissions of the other;
(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 to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(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; provided that the Trustee shall not be
responsible for any act or omission of the Custodian;
(f) neither Custodian nor the Trustee 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 adequate indemnity 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) 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 except as otherwise
provided in Section 7.01;
(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; and
(j) the Securities Administrator shall remit the custodian fee to
the Custodian pursuant to a separate agreement.
Section 8.03 Trustee 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 the Trustee assumes no responsibility for
their correctness. The Trustee makes 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 Custodian shall be accountable for the
use or application by the Depositor, the Securities Administrator, the Master
Servicer or a Servicer of any funds paid to the Depositor, the Securities
Administrator, the Master Servicer or a Servicer in respect of the Mortgage
Loans or deposited in or withdrawn from the Collection Account by the Depositor,
the Securities Administrator, the Master Servicer or a Servicer.
The Trustee shall have no responsibility 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 the successor
Master Servicer).
Section 8.04 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 8.05 Trustee's Fees and Expenses and Indemnification. As
compensation for its activities under this Agreement, the Trustee shall be paid
its fee by the Securities Administrator from the Securities Administrator's own
funds pursuant to a separate fee schedule. The Trustee shall have no lien on the
Trust Fund for the payment of such fees. The Trustee, the Custodian and any
director, officer, employee, or agent of the Trustee or the Custodian shall be
indemnified by the Trust Fund and held harmless against any loss, liability, or
expense (including reasonable attorneys' fees) resulting from any error in any
tax or information return prepared by the Master Servicer or incurred in
connection with:
(a) any claim or legal action relating to this Agreement, or
(b) any claim or legal action relating to the Certificates, the
Interest Rate Swap Agreement or the Interest Rate Cap Agreement; or
(c) except as set forth in the last paragraph of this Section
8.05, the performance of any of the Trustee's or the Custodian's duties under
this Agreement, other than any loss, liability, or expense with respect to the
Trustee (i) resulting from any breach of any Servicer's obligations in
connection with this Agreement for which the related Servicer has performed its
obligation to indemnify the Trustee pursuant to Section 6.05, (ii) incurred
because of willful misfeasance, bad faith, or negligence in the performance of
any of the Trustee's or the Custodian's duties under this Agreement, (iii)
resulting from any breach of the Responsible Party's obligations in connection
with this Agreement for which the Responsible Party has performed its obligation
to indemnify the Trustee pursuant to Section 2.03(g) or (iv) 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. This indemnity shall survive the termination of this Agreement or the
resignation or removal of the Trustee and the Custodian under this Agreement.
Without limiting the foregoing, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any expense, disbursement, or
advance arising from the Trustee's negligence, bad faith, or willful
misfeasance, the Trust Fund shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements of
its counsel not associated with the closing of the issuance of the Certificates;
and
(B the reasonable compensation, expenses, and disbursements of
any accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement.
Except as otherwise expressly provided in this Agreement or a
separate letter agreement between the Trustee and the Depositor, 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 incurred by the Trustee;
provided, however, no expense shall be reimbursed by the Trust Fund hereunder if
it would not constitute an "unanticipated expense incurred by the REMIC" within
the meaning of the REMIC Provisions.
Section 8.06 Eligibility Requirements for the Trustee. The
Trustee hereunder shall at all times be a corporation or 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 with a credit rating which would
not cause any of the Rating Agencies to reduce 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 8.06
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 Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its Affiliates or each Servicer and its Affiliates; provided,
however, that such entity cannot be an Affiliate of the Depositor or any
Servicer other than the Trustee in its role as successor to the Master Servicer.
Section 8.07 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 Securities
Administrator, the Master Servicer, the Servicers and each Rating Agency not
less than 60 days before the date specified in such notice, when, subject to
Section 8.08, such resignation is to take effect, and acceptance by a successor
trustee in accordance with Section 8.08 meeting the qualifications set forth in
Section 8.06. If no successor trustee meeting such qualifications shall have
been so appointed and have accepted appointment within 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 the Trustee shall cease to be eligible in
accordance with Section 8.06 and shall fail to resign after written request
thereto by the Depositor, or if at any time 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, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or each Servicer may remove the Trustee
and appoint a successor trustee by written instrument, in triplicate, one copy
of which shall be delivered to the Trustee, one copy to each Servicer and one
copy to the successor trustee.
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 triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to each Servicer, one complete set 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 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee and the Servicers 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, the
Servicers 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 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided
in this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 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 8.09 Merger or Consolidation of the Trustee. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
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. In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
and the Securities Administrator of such succession or appointment and shall
furnish to the Depositor and the Securities Administrator in writing and in form
and substance reasonably satisfactory to the Depositor and the Securities
Administrator, all information reasonably necessary for the Securities
Administrator to accurately and timely report, pursuant to Section 8.12(g), the
event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports
under the Exchange Act are required to be filed under the Exchange Act).
Section 8.10 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 applicable Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or 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 8.10, such powers, duties, obligations, rights and trusts as the
applicable Servicer and the Trustee may consider appropriate. If any Servicer
shall not have joined in such appointment within 15 days after the receipt by
such Servicer of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 8.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
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 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee (as successor Master
Servicer) under this Agreement to advance funds on behalf of the Master
Servicer, shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because
of any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument appointing
any separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article VIII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to each Servicer 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 8.11 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 Trust REMIC described in the Preliminary Statement and that in such
capacity it shall:
(a) prepare (and the Trustee shall sign) 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 the Trustee shall sign) 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 described in the
Preliminary Statement containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish to Certificateholders the schedules, statements or
information at such times and in such manner as may be required thereby;
(b) within thirty (30) days of the Closing Date, apply for an
employer identification number from the Internal Revenue Service via Form SS-4
or any other acceptable method for all tax entities and shall also furnish to
the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of the person that the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) deliver or cause to be delivered the federal taxpayer
identification number of the grantor trust on an IRS Form W-9 of the grantor
trust to the Cap Provider and the Swap Provider promptly upon receipt of such
number after applying for it pursuant to Section 8.11(b) above and, in any
event, not later than the first payment date under the Interest Rate Swap
Agreement or Interest Rate Cap Agreement, and if requested by the Cap Provider
or the Swap Provider, an applicable IRS Form W-8IMY;
(d) make an election that each of Pooling-Tier REMIC-1,
Pooling-Tier REMIC-2, the Lower-Tier REMIC, the Upper-Tier REMIC and the Class X
REMIC be treated as a REMIC on the federal tax return for its first taxable year
(and, if necessary, under applicable state law);
(e) 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);
(f) 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);
(g) 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;
(h) 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;
(i) pay, from the sources specified in the second to last
paragraph of this Section 8.11, the amount of any federal or state tax,
including prohibited transaction taxes as described below, imposed on each 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);
(j) 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; and
(k) 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.
The Holder of the largest percentage interest of the Class RX
Certificates shall act as Tax Matters Person for the Class X REMIC, and the
holder of the largest percentage interest of the Class R Certificates shall act
as the Tax Matters Person for Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC, and the Holder of the largest percentage interest of the Class
RC Certificates shall act as Tax Matters Person for Pooling-Tier REMIC-1, in
each case, within the meaning of Treasury Regulations Section 1.860F-4(d), and
the Securities Administrator is hereby designated as agent of such
Certificateholders 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 any 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
any 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 from the Excess Reserve Fund Account, the
Supplemental Interest Trust (subject to the obligation to pay Basis Risk Carry
Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts) and
the right to receive Class IO Shortfalls and the rights of the LIBOR
Certificateholders to receive Basis Risk Carry Forward Amounts and, without
duplication, Upper-Tier Carry Forward Amounts and the obligation to pay Class IO
Shortfalls as the beneficial ownership of interests in a grantor trust and not
as obligations of any Trust 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 P, Class X
Certificateholders and the LIBOR Certificateholders, the respective amounts
described above that are received, in the time or times and in the manner
required by the Code.
To enable the Securities Administrator to perform its duties
under this Agreement, the Depositor shall provide to the Securities
Administrator within ten 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 LIBOR Certificates of the right to receive Basis Risk
Carry Forward Amounts from the Excess Reserve Fund Account and Basis Risk Carry
Forward Amounts or Upper-Tier Carry Forward Amounts from 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; provided, however, that the Depositor shall not be required to
provide any information regarding the Mortgage Loans after the Closing Date or
any information that the applicable Servicer is required to provide to the
Securities Administrator pursuant to 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, pursuant to this paragraph, accurate information or
data to the Securities Administrator on a timely basis.
None of the Servicers, the Trustee, the Master Servicer or the
Securities Administrator shall (i) cause the creation of any interests in any
Trust REMIC other than the regular and residual interests set forth in the
Preliminary Statement, (ii) receive any amount representing a fee or other
compensation for services (except as otherwise permitted by this Agreement) or
(iii) otherwise knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of any Trust REMIC as a REMIC or (ii)
result in the imposition of a tax upon any Trust REMIC or the Trust Fund
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code, or the tax on "net income from foreclosure
property") unless the Securities Administrator receives an Opinion of Counsel
(at the expense of the party seeking to take such action or, if such party fails
to pay such expense, at the expense of the Trust Fund, but in no event at the
expense of the Securities Administrator) to the effect that the contemplated
action will not, with respect to the Trust Fund, result in the imposition of a
tax upon any Trust REMIC created hereunder or endanger the status of any Trust
REMIC.
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 Pooling-Tier REMIC-1 as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Start-up Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including,
if applicable, 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 Trustee, the
Master Servicer or the Securities Administrator, respectively, if such tax
arises out of or results from negligence of the Trustee, the Master Servicer or
the Securities Administrator, as applicable, in the performance of any of its
obligations under this Agreement, (ii) the applicable Servicer, in the case of
any such minimum tax, and otherwise if such tax arises out of or results from a
breach by such Servicer of any of its obligations under this Agreement, (iii)
the Sponsor if such tax arises out of or results from the Sponsor's obligation
to repurchase a Mortgage Loan pursuant to the Representations and Warranties
Agreement, (iv) the Responsible Party if such tax arises out of or results from
the Responsible Party's obligation to repurchase a Mortgage Loan pursuant to
Section 2.03 or (v) in all other cases, or if the Trustee, the Master Servicer,
the Securities Administrator, the applicable Servicer, the Responsible Party or
the Sponsor fails to honor its obligations under the preceding clause (i), (ii),
(iii) or (iv), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 4.02(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act in accordance with this Agreement and shall comply with
any directions of the Depositor or the applicable Servicer as provided herein so
as to assure such continuing treatment. The Securities Administrator shall not
(a) sell or permit the sale of all or any portion of the Mortgage Loans unless
pursuant to a repurchase or substitution in accordance with this Agreement, or
of any investment of deposits in an Account, and (b) accept any contribution to
any Trust REMIC after the Startup Day without receipt of a REMIC Opinion.
Section 8.12 Periodic Filings. (a) The Securities Administrator,
the Master Servicer and each Servicer shall reasonably cooperate with the
Depositor in connection with the reporting requirements of the Trust under the
Exchange Act. The Securities Administrator shall prepare for execution by the
Master Servicer, on behalf of the Depositor, any Forms 8-K and 10-D required by
the Exchange Act and the rules and regulations of the Commission thereunder, in
order to permit the timely filing thereof pursuant to the terms of this Section
8.12, and the Securities Administrator shall file (via the Commission's
Electronic Data Gathering, Analysis and Retrieval System) such Forms executed by
the Depositor or the Master Servicer, on behalf of the Depositor, as applicable.
The Securities Administrator shall have no duty to verify information received
by it from other Persons (other than Subcontractors utilized by the Securities
Administrator) in connection with its duties under this Section 8.12.
(b) Within 15 calendar days after each Distribution Date (subject
to permitted extensions under the Exchange Act), the Securities Administrator
shall prepare and file, and the Master Servicer shall sign, on behalf of the
Trust any Form 10-D required by the Exchange Act, in form and substance as
required by the Exchange Act. The Securities Administrator shall file each Form
10-D with a copy of the related 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 as set forth on Exhibit U
hereto and the Securities Administrator shall compile such disclosure pursuant
to the following paragraph. 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 Securities Administrator will have no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in the next paragraph.
As set forth on Exhibit U hereto, within 5 calendar days after
the related Distribution Date, (i) certain parties to this Agreement shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known by such applicable parties, 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 the 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 8.12(b).
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
and verification by the Depositor. No later than two Business Days following the
10th calendar day after the related Distribution Date, a duly authorized
representative of the Master Servicer shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Securities Administrator and the
Depositor, and no later than 5:00 p.m. New York City time on the 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 8.12(f)(ii). Promptly (but no
later than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website (located at
xxx.xxxxxxx.xxx) a final executed copy of each Form 10-D prepared by the
Securities Administrator. The signing party at the Master Servicer can be
contacted at the Master Servicer's address for notices set forth in Section
12.05(b)(2)(a), or such other address as to which the Master Servicer has
provided prior written notice to the Securities Administrator. The Depositor
acknowledges that the performance by the Securities Administrator of its duties
under this Section 8.12(b) related to the timely preparation and filing of Form
10-D is contingent upon each Servicer, the Securities Administrator, the Master
Servicer, the Depositor and any other Person obligated to provide Additional
Form 10-D Disclosure as set forth on Exhibit U hereto strictly observing all
applicable deadlines in the performance of their duties under this Section
8.12(b). 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 obtain or receive,
on a timely basis, any information from any party hereto (other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such Form 10-D,
not resulting from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes"
or "no") that it "(1) has filed all reports required to be filed by Section 13
or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days." The Depositor hereby represents to the Securities Administrator that the
Depositor has filed or caused to be filed all such required reports during the
preceding 12 months and that it has been subject to such filing requirement for
the past 90 days. The Depositor shall notify the Securities Administrator in
writing no later than the fifth calendar day after the related Distribution Date
with respect to the filing of a report on Form 10-D if the answer to the
questions should be no. The Securities Administrator shall be entitled to rely
on such representations in preparing, executing and/or filing any such report.
(c) Within 90 days after the end of each fiscal year of the Trust
or such earlier date as may be required by the Exchange Act (the "10-K Filing
Deadline"), commencing in March 2008, the Securities Administrator shall prepare
and file on behalf of the Trust a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items, in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, (i) an annual
compliance statement for the applicable Servicer and each Subservicer engaged by
such Servicer, as described under Section 3.22, (ii)(A) the annual reports on
assessment of compliance with applicable servicing criteria for the Securities
Administrator, the Master Servicer, the applicable Servicer, the Custodian, each
Subservicer engaged by such Servicer and each Servicing Function Participant
utilized by such Servicer, the Master Servicer or the Securities Administrator,
as described under Section 3.23 and (B) if any such report on assessment of
compliance with servicing criteria described under Section 3.23 identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or such report on assessment of compliance with servicing
criteria described under Section 3.23 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 the Securities Administrator, the Master Servicer, the
applicable Servicer, the Custodian (if the Trust is subject to Exchange Act
Reports for such fiscal year), each Subservicer engaged by such Servicer and
each Servicing Function Participant utilized by such Servicer, the Master
Servicer or the Securities Administrator, as described under Section 3.23, and
(B) if any registered public accounting firm attestation report described under
Section 3.23 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 certification in the form attached hereto as
Exhibit O, with such changes as may be necessary or appropriate as a result of
changes promulgated by the Commission (the "Sarbanes Certification"), which
shall be signed by the senior officer of the Depositor in charge of
securitization. Any disclosure or information in addition to (i) through (iv)
above that is required to be included on Form 10-K ("Additional Form 10-K
Disclosure") shall be prepared by party responsible for preparing such
disclosure as set forth on Exhibit V hereto, and the Securities Administrator
shall compile such disclosure pursuant to the following paragraph. The Depositor
will approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth in
the next paragraph.
As set forth on Exhibit V hereto, no later than March 15th of
each year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2008, (i) certain parties to this Agreement shall be required to
provide to the Securities Administrator and the Depositor, to the extent known
by such applicable parties, 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 will approve, as to the 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 any Additional Form
10-K Disclosure on Form 10-K pursuant to this Section 8.12(c).
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
and verification by the Depositor. No later than 5:00 p.m. Eastern time on the
4th Business Day prior to the 10-K Filing Deadline, a senior officer of the
Depositor shall sign the Form 10-K and return an electronic or fax copy of such
signed Form 10-K (with an original executed hard copy to follow by overnight
mail) to the Securities Administrator. If a Form 10-K cannot be filed on time or
if a previously filed Form 10-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 8.12(f)(ii). The
Depositor acknowledges that the performance by the Securities Administrator of
its duties under this Section 8.12(c) related to the timely preparation and
filing of Form 10-K is contingent upon each Servicer (and any Subservicer or
Servicing Function Participant engaged by a Servicer) and the Depositor and any
other Person obligated to provide Additional Form 10-K Disclosure as set forth
on Exhibit V hereto, observing all applicable deadlines in the performance of
their duties under this Section 8.12(c), Section 8.12(d), Section 3.22 and
Section 3.23. Promptly (but no later than one Business Day) after filing with
the Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-K filed by the Securities
Administrator. 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-K, where such failure results
from the Securities Administrator's inability or failure to obtain or receive,
on a timely basis, any information from any party hereto (other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such Form 10-K,
not resulting from its own negligence, bad faith or willful misconduct.
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.
(d) In connection with the execution of a Sarbanes Certification,
the Securities Administrator shall sign a certification (in the form attached
hereto as Exhibit P, with such changes as may be necessary or appropriate as a
result of changes promulgated by the Commission) for the benefit of the
Depositor and its officers, directors and Affiliates, each Servicer shall sign a
certification solely with respect to such Servicer (in the form attached hereto
as Exhibit Q-1, with such changes as may be necessary as a result of changes
promulgated by the Commission) for the benefit of the Depositor, the Securities
Administrator and their respective officers, directors and Affiliates and the
applicable Subservicer shall sign a certification solely with respect to such
Subservicer (in the form attached hereto as Exhibit Q-2, with such changes as
may be necessary or appropriate as a result of changes promulgated by the
Commission) for the benefit of the Depositor, the Securities Administrator and
their respective officers, directors and Affiliates and the Master Servicer
shall sign a certification solely with respect to the Master Servicer (in the
form attached hereto as Exhibit Q-3, with such changes as may be necessary as a
result of changes promulgated by the Commission) for the benefit of the
Depositor, the Securities Administrator and their respective officers, directors
and Affiliates. Each such certification shall be delivered to the Depositor no
later than March 15th of each year (or if such day is not a Business Day, the
immediately preceding Business Day) and the Depositor shall deliver the Sarbanes
Certification no later than the time set forth for the delivery to the
Securities Administrator of the signed Form 10-K pursuant to Section 8.12(d) for
such year. In the event that prior to the filing date of the Form 10-K in March
of each year, the Securities Administrator or the applicable Servicer has actual
knowledge of information material to the Sarbanes Certification, that party
shall promptly notify the Depositor and each of the other parties signing the
certifications. In addition, (i) the Securities Administrator shall indemnify
and hold harmless the Depositor, the Servicers and the Sponsor and their
officers, directors, employees, agents and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon any breach of the Securities Administrator's obligations under this
Section 8.12(d) or any material misstatement or material omission contained in
any information, report, certification or other material provided in written or
electronic form pursuant to Section 3.23 and 8.12 of this Agreement and Exhibits
U, V and W to this Agreement provided by or on behalf of the Securities
Administrator or any Subcontractor utilized by the Securities Administrator
(excluding any information, report, certification or other materials provided in
written or electronic form by or on behalf of any Person other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) or negligence, bad faith or willful misconduct in connection
therewith, and (ii) each Servicer shall indemnify and hold harmless the
Depositor, the Sponsor, the Securities Administrator and their respective
officers, directors, employees, agents and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon any breach of such Servicer's obligations under this Section 8.12(d)
or any material misstatement, omission, negligence, bad faith or willful
misconduct of such Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless any
indemnified party, then (i) the Securities Administrator agrees in connection
with a breach of the Securities Administrator's obligations under this Section
8.12(d) or any material misstatement or material omission contained in any
information, report, certification or other material provided in written or
electronic form pursuant to Section 3.23 and 8.12 of this Agreement and Exhibits
U, V and W to this Agreement provided by or on behalf of the Securities
Administrator or any Subcontractor utilized by the Securities Administrator
(excluding any information, report, certification or other materials provided in
written or electronic form by or on behalf of any Person other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) or negligence, bad faith or willful misconduct in connection
therewith that it shall contribute to the amount paid or payable by the
Depositor and the Sponsor as a result of the losses, claims, damages or
liabilities of the Depositor and the Sponsor in such proportion as is
appropriate to reflect the relative fault of the Depositor and the Sponsor on
the one hand and the Securities Administrator on the other and (ii) the
applicable Servicer agrees that it shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities of such indemnified party in such proportion as is appropriate to
reflect the relative fault of such indemnified party, on the one hand, and the
such Servicer, on the other hand, in connection with a breach of such Servicer's
obligations under this Section 8.12(d) or any material misstatement or omission,
negligence, bad faith or willful misconduct of such Servicer in connection
therewith. The obligations of the Securities Administrator and each Servicer
under this Section 8.12(d) shall apply to the Securities Administrator and each
Servicer that serviced a Mortgage Loan during the applicable period, whether or
not such Securities Administrator or Servicer, as applicable, is acting as
Securities Administrator or Servicer, as applicable, at the time such
certification is required to be delivered. The indemnification and contribution
obligations set forth in this Section 8.12(d) shall survive the termination of
this Agreement or the earlier resignation or removal of the Securities
Administrator or the applicable Servicer, as applicable.
(e) Upon any filing with the Commission, the Securities
Administrator shall promptly deliver to the Depositor a copy of each such
executed report, statement or information.
(f) (i) The obligations set forth in paragraphs (a) through (d)
of this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. On or
prior to January 30 of the first year in which the Securities Administrator is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification with respect to the Trust, with a
copy to the Depositor. At any time after the filing of a Form 15 Suspension
Notification, if the number of Holders of the Offered Certificates of record
exceeds the number set forth in Section 15(d) of the Exchange Act or the
regulations promulgated pursuant thereto which would cause the Trust to again
become subject to the reporting requirements of the Exchange Act, the Securities
Administrator shall recommence preparing and filing reports on Form 10-K, 10-D
and 8-K as required pursuant to this Section 8.12 and the parties hereto shall
again have the obligations set forth in this Section.
(ii) In the event that the Securities Administrator is 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 pursuant to 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, the Securities Administrator will immediately notify the
Depositor. In the case of Form 10-D and 10-K, the Depositor, the
Servicers and the Securities Administrator will thereupon cooperate to
prepare a Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant to
Rule 12b-25 of the Exchange Act and the Securities Administrator shall
file in accordance with this Agreement. In the case of Form 8-K, the
Securities Administrator will, upon receipt of all disclosure
information required to be included on Form 8-K and upon the approval
and direction of the Depositor, include such disclosure information on
the next Form 10-D. In the event that any previously filed Form 8-K,
10-D or 10-K needs to be amended, the party to this Agreement deciding
that an amendment to such Form 8-K, 10-D or 10-K is required will notify
the Depositor, the Securities Administrator and the Servicers and such
parties will cooperate to prepare any necessary Form 8-KA, 10-DA or
10-KA. Any Form 15, Form 12b-25 or any amendment to Form 8-K or 10-D
shall be signed by an officer of Master Servicer, on behalf of the
Depositor. Any amendment to Form 10-K shall be signed by a senior
officer of the Depositor. The Depositor acknowledges that the
performance by the Securities Administrator of its duties under this
Section 8.12(f) related to the timely preparation and filing of Form 15,
Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon the Servicers and the Depositor observing all applicable deadlines
in the performance of their duties under this Section 8.12 and Sections
3.22 and 3.23. The Securities Administrator shall have no liability for
any loss, expense, damage or claim arising out of or with respect to any
failure to properly prepare and/or timely file any such Form 15, Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where such failure
results from the Securities Administrator's inability or failure to
obtain or receive, on a timely basis, any information from any party
hereto (other than the Securities Administrator or any Subcontractor
utilized by the Securities Administrator) 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.
(g) Within four (4) Business Days after the occurrence of an
event requiring disclosure on Form 8-K (each such event, a "Reportable Event"),
and also if requested by the Depositor, the Securities Administrator shall
prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K ("Form 8-K Disclosure Information") shall be prepared by the party
responsible for preparing such disclosure as set forth on Exhibit W hereto and
compiled by the Securities Administrator pursuant to the following paragraph.
The Depositor will approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 8-K Disclosure on Form 8-K. The
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information or any
Form 8-K, except as set forth in the next paragraph.
As set forth on Exhibit W hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than noon (Eastern
time) on the 2nd Business Day after the occurrence of a Reportable Event (i)
certain parties to this Agreement shall be required to provide to the Depositor
and the Securities Administrator, to the extent known by such applicable
parties, 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 8-K Disclosure Information, if applicable and (ii) the
Depositor will approve, as to the form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 8-K Disclosure on Form 8-K. The
Depositor shall be responsible for any reasonable fees and expenses assessed or
incurred by the Securities Administrator in connection with any Additional Form
8-K Disclosure on Form 8-K pursuant to this Section 8.12(g).
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
and verification by the Depositor. No later than noon of the 4th Business Day
after the Reportable Event, an officer of the Master Servicer, on behalf of the
Depositor, shall sign the Form 8-K and return an electronic or facsimile copy of
such signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Securities Administrator. If a Form 8-K cannot be filed on time or
if a previously filed Form 8-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 8.12(f)(ii). The signing party
at the Master Servicer can be contacted at the Master Servicer's address for
notices set forth in Section 12.05(b)(2)(a), or such other address as to which
the Master Servicer has provided prior written notice to the Securities
Administrator. The Depositor acknowledges that the performance by the Securities
Administrator of its duties under this Section 8.12(g) related to the timely
preparation and filing of Form 8-K is contingent upon each Servicer, the
Depositor and any other Person obligated to provide Form 8-K Disclosure
Information as set forth on Exhibit W hereto, observing all applicable deadlines
in the performance of their duties under this Section 8.12(g). Promptly (but no
later than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed copy
of each Form 8-K filed by the Securities Administrator. 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 8-K, where such failure results from the Securities
Administrator's inability or failure to obtain or receive, on a timely basis,
any information from any party hereto (other than the Securities Administrator
or any Subcontractor utilized by the Securities Administrator) needed to
prepare, arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
(h) The Securities Administrator shall have no liability for any
loss, expense, damage or claim arising out of or resulting from (i) the accuracy
or inaccuracy of any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information (excluding any information therein
provided by the Securities Administrator or any Subcontractor utilized by the
Securities Administrator) provided to the Securities Administrator in connection
with the preparation of Forms 10-D, 10-K and 8-K pursuant to this Section 8.12,
or (ii) the failure of the Depositor to timely execute and return for filing any
Forms 10-D, 10-K and 8-K required to be filed by the Securities Administrator
pursuant to this Section 8.12, in either case, not resulting from the Securities
Administrator's own negligence, bad faith or misconduct.
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts,
Basis Risk Carry Forward Amounts, the Supplemental Interest Trust, the Interest
Rate Swap Agreement and the Interest Rate Cap Agreement. The Securities
Administrator shall treat the rights that each Class of LIBOR Certificates has
to receive payments of Upper-Tier Carry Forward Amounts and, to the extent not
paid from the Excess Reserve Fund Account, Basis Risk Carry Forward Amounts from
the Supplemental Interest Trust (together with Basis Risk Carry Forward Amounts
from the Excess Reserve Fund Account) as rights to receive payments under a
limited recourse notional principal contract between the Class X
Certificateholders and each such Class. Accordingly, each Class of Certificates
(excluding the Class X, Class P and the Residual Certificates) will be comprised
of two components - an Upper-Tier Regular Interest and an interest in an
interest rate cap contract (subject to the obligation to pay Class IO
Shortfalls), and the Class X Certificates will be comprised of the following
components: (i) two Class X REMIC Regular Interests (the Class X Interest and
the Class IO Interest), (ii) ownership of the Excess Reserve Fund Account,
subject to an obligation to pay Basis Risk Carry Forward Amounts and (iii)
ownership of the Supplemental Interest Trust (including the Interest Rate Swap
Agreement and the Interest Rate Cap Agreement), subject to the obligation to pay
Basis Risk Carry Forward Amounts and, without duplication, Upper-Tier Carry
Forward Amounts and (iv) the right to receive Class IO Shortfalls. The
Securities Administrator shall allocate the issue price for a Class of LIBOR
Certificates among the respective 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 LIBOR
Certificate to receive the related Basis Risk Carry Forward Amounts and, without
duplication, the related Upper-Tier Carry Forward Amount for purposes of
allocating the purchase price of an initial LIBOR Certificateholder between such
rights and the related Upper-Tier Regular Interest.
Holders of LIBOR 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
Payments and Swap Termination Payments payable from Available Funds (other than
Defaulted Swap Termination Payments) over (ii) the sum of amounts payable on the
Class X Interest available for such payments and amounts payable on the Class IO
Interest (such excess, a "Class IO Shortfall"), first from interest and then
from principal distributable on the LIBOR Certificates. A Class IO Shortfall
payable from interest collections shall be allocated pro rata among such LIBOR
Certificates based on the amount of interest otherwise payable to such Class of
LIBOR Certificates, and a Class IO Shortfall payable from principal collections
shall be allocated in reverse sequential order beginning with the most
subordinate Class of LIBOR Certificates then Outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Upper-Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class X Certificates
through the Supplemental Interest Trust.
Section 8.14 Custodial Responsibilities. (a) The Custodian shall
provide access to the Mortgage Loan Documents in possession of the 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 reasonable prior
written request and during normal business hours at the office of the Custodian.
The Custodian 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 person requesting such access.
(b) The Custodian may resign from its obligations hereunder upon
60 days prior written notice to the Trustee, the Depositor, the Securities
Administrator and the Servicers. Such resignation shall take effect upon (i) the
appointment of a successor Custodian reasonably acceptable to the Depositor
within such 60 day period and (ii) delivery of all Mortgage Loan Files to the
successor Custodian. The Trustee shall have the right, but not the obligation,
to become the successor Custodian. If no successor Custodian is appointed within
60 days after written notice of the Custodian's resignation is received by the
Trustee, the Custodian may petition a court of competent jurisdiction to appoint
a successor Custodian.
Upon such resignation and appointment of successor Custodian, the
Custodian shall, at the Custodian's expense, promptly transfer to the successor
Custodian, as directed in writing by the Trustee, all applicable Mortgage Files
being administered under this Agreement. Notwithstanding the foregoing, the
Trust Fund, not the Custodian, shall bear the costs relating to the transfer of
Mortgage Files if the Custodian shall resign with cause (including the
Custodian's resignation due to the failure of the Custodian to be paid all fees
due to the Custodian hereunder).
(c) For so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Custodian shall
not utilize any Subcontractor for the performance of its duties hereunder if
such Subcontractor would be "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB without the prior written consent of the
Depositor, in its sole discretion.
(d) The Custodian shall indemnify the Depositor, the Sponsor, the
Securities Administrator and any director, officer, employee, agent and
affiliate of the Depositor, the Sponsor or the Securities Administrator and hold
them harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any way
related to (i) the failure of the Custodian to deliver when required any
assessment of compliance required to be delivered by the Custodian or (ii) any
material misstatement or omission contained in any assessment of compliance
provided to be delivered by the Custodian. This indemnity shall survive the
termination of this Agreement or the earlier resignation or removal of the
Custodian.
(e) Notwithstanding anything in this Agreement to the contrary,
the Custodian shall not be required to deliver, or to cause to be delivered, an
assessment of compliance or accountant's attestation report pursuant to Section
3.23 for any fiscal year of the Trust in which the Custodian's Weighted Average
Percentage is 5% or less. The "Custodian's Weighted Average Percentage" means,
for each fiscal year of the Trust and the Custodian, the quotient, expressed as
a percentage, of (A) the aggregate of the Stated Principal Balance for each
Distribution Date in such fiscal year of the Mortgage Loans for which the
Custodian acted as Custodian divided by (B) the aggregate of the Pool Stated
Principal Balance for each Distribution Date in such fiscal year.
(f) As compensation for its activities under this Agreement, the
Custodian shall be paid its fee by the Securities Administrator from the
Securities Administrator's own funds pursuant to a separate fee schedule. The
Custodian shall have no lien on the Trust Fund for the payment of such fees.
Section 8.15 Limitations on Custodial Responsibilities.
(a) The Custodian shall be under no duty or obligation to
inspect, review or examine the Mortgage Files to determine that the contents
thereof are appropriate for the represented purpose or that they have been
actually recorded or that they are other than what they purport to be on their
face.
(b) The Custodian shall not be responsible for preparing or
filing any reports or returns relating to federal, state or local income taxes
with respect to this Agreement, other than for the Custodian's compensation or
for reimbursement of expenses.
(c) The Custodian shall not be responsible or liable for, and
makes no representation or warranty with respect to, the validity, adequacy or
perfection of any lien upon or security interest in any Mortgage File.
(d) The duties and obligations of the Custodian shall only be
such as are expressly set forth in this Agreement or as set forth in a written
amendment to this Agreement executed by the parties hereto or their successors
and assigns. In the event that any provision of this Agreement implies or
requires that action or forbearance be taken by a party, but is silent as to
which party has the duty to act or refrain from acting, the parties agree that
the Custodian shall not be the party required to take the action or refrain from
acting. In no event shall the Custodian have any responsibility to ascertain or
take action except as expressly provided herein.
(e) The Custodian shall not be liable for any error of judgment,
or for any act done or step taken or omitted by it, in good faith, or for any
mistake of fact or law, or for anything that it may do or refrain from doing in
connection therewith, except in the case of its negligent performance or
omission or its bad faith or willful misfeasance.
(f) The Custodian shall have no obligation to verify the receipt
of any such documents the existence of which was not made known to the Custodian
by receipt of the Mortgage File.
(g) The Custodian shall have no obligation to determine whether
the recordation of any document is necessary.
(h) In no event shall the Custodian or its directors, affiliates,
officers, agents and employees be held liable for any special, indirect or
consequential damages resulting from any action taken or omitted to be taken by
it or them hereunder or in connection herewith even if advised of the
possibility of such damages.
(i) Any Person into which the Custodian may be merged or
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any person succeeding
to the business of the Custodian, shall be the successor of the Custodian
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.
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 each Servicer's obligations under this Agreement, and
(except as set forth below) shall use its reasonable good faith efforts to cause
such Servicer to duly and punctually perform its duties and obligations
hereunder. Upon the occurrence of an Event of Default of which a Responsible
Officer of the Master Servicer has actual knowledge, the Master Servicer shall
promptly notify the Securities Administrator and the Trustee and shall specify
in such notice the action, if any, the Master Servicer plans to take in respect
of such default. So long as an Event of Default shall occur and be continuing,
the Master Servicer shall take the actions specified in Article VII.
If (i) a Servicer reports a delinquency on a monthly report and
(ii) such Servicer, by 11 a.m. (New York Time) on the related Remittance Date,
neither makes an Advance nor provides the Securities Administrator and the
Master Servicer with an Officer's Certificate certifying that such an Advance
would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, then
the Master Servicer shall deposit in the Distribution Account not later than the
Business Day immediately preceding the related Distribution Date an 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 an
Advance pursuant to this Agreement and (y) amounts deposited in the Collection
Account to be used for Advances with respect to such Mortgage Loan, except to
the extent the Master Servicer determines any such Advance to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. Subject to the
foregoing and Section 7.02, the Master Servicer shall continue to make such
Advances for so long as the related Servicer is required to do so under this
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 an Advance in a
stated amount and detailing the reason(s) it deems the Advance to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing 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.
(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 hereunder, seek reimbursement therefor initially from
the terminated Servicer. In the event the full costs associated with the
transition of servicing responsibilities to the Master Servicer are not paid for
by the predecessor 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 the 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.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by any Servicer of such Servicer's rights and
obligations under this Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
(e) The Master Servicer shall give Avelo written notice of the
occurrence of the Optional Termination Date upon the occurrence of such event.
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
Servicers, the Responsible Party, the Depositor, the Securities Administrator,
the Custodian and the Trustee, for the benefit of the Certificateholders, as of
the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and
comply with its obligations under the terms of this Agreement, the
execution, delivery and performance of which have been duly authorized
by all necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Master Servicer is a party or by which it
is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master
Servicer's ability to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
in general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any
order or decree of any court or any order or regulation of any federal,
state, municipal or governmental agency to the extent that any such
default would materially and adversely affect its performance hereunder;
(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) Section 11.01(a) of this Agreement provides that Avelo, at
its option, may purchase (or, if Avelo is no longer acting as a Servicer of any
of the Mortgage Loans, 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 may or may not accommodate such request to conduct an Auction
Call in its sole discretion. Avelo, in consideration of the benefits to it of
the transactions occurring under this Agreement, hereby represents, covenants
and agrees with the Depositor and any applicable NIM Issuer that it will not
exercise its right to purchase, on or after the Optional Termination Date, all
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. The Depositor hereby represents,
covenants and agrees for the benefit of any applicable NIM Issuer that it will
not exercise its right to request the Master Servicer to solicit bids in a
commercially reasonable manner, on or after the Optional Termination Date, for
the purchase of all of the Mortgage Loans (and REO Properties) unless all of the
outstanding notes issued under the applicable indenture have been paid in full.
(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 Servicers, the
Depositor, the Responsible Party, the Securities Administrator, the Custodian,
the Trustee and the Trust 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 Servicers, the Depositor, the Responsible Party, the
Securities Administrator, the Custodian, the Trustee and the Trust constitutes
the sole remedy of the Servicers, the Depositor, the Responsible Party, the
Securities Administrator, the Custodian, the Trustee and the Trust, 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 Servicers, the
Depositor, the Responsible Party, the Master Servicer, Securities Administrator,
the Custodian 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 a 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 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 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 any Forms 8-K, 10-D and 10-K required by the
Exchange Act with respect to the Trust Fund, the failure to comply with the
requirements set forth in Section 8.12, for which the grace period shall not
exceed the lesser of ten (10) calendar days or such period in which any
applicable Form 8-K, 10-D and 10-K required by the Exchange Act can be timely
filed (without taking into account any extensions);
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to
pay its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days;
(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, the Trustee and the Depositor; or
(g) the indictment of the Master Servicer for the taking of any
action by the Master Servicer, 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 upon the request of the Holders of Certificates representing at least a
majority of the Voting Rights shall, terminate with cause all the rights and
obligations of the Master Servicer under this Agreement.
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.
All reasonable out-of-pocket costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a terminated Master
Servicer, including, without limitation, any such costs or expenses associated
with the complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data as may be required by the Trustee to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or any successor Master Servicer appointed pursuant to
Section 9.06) to act as master servicer shall be paid by the terminated Master
Servicer; provided, however, that to the extent not previously reimbursed by the
terminated Master Servicer, such fees and expenses shall be payable to the
Trustee pursuant to Section 8.05.
Upon the occurrence of a Master Servicer Event of Default, the
Trustee shall 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.
Section 9.05 Waiver of Default. By a written notice, the Trustee
may with the consent of a Holders of Certificates evidencing at least a majority
of the Voting Rights waive any default by the Master Servicer in the performance
of its obligations hereunder and its consequences. Upon any waiver of a past
default, such default shall cease to exist, and any Master Servicer Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 9.06 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 Xxxxxxx Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that in no event shall the Master
Servicing Fee paid to such successor master servicer exceed that paid to the
Master Servicer hereunder. In the event that the Master Servicer's duties,
responsibilities and liabilities under this Agreement are terminated, the Master
Servicer shall continue to discharge its duties and responsibilities hereunder
until the effective date of such termination with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement and shall
take no action whatsoever that might impair or prejudice the rights of its
successor. The termination of the Master Servicer shall not become effective
until a successor shall be appointed pursuant hereto and shall in no event (i)
relieve the Master Servicer of responsibility for the representations and
warranties made pursuant to Section 9.03(a) hereof and the remedies available to
the Trustee under Section 9.03(b) hereof, it being understood and agreed that
the provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment
within 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 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.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption as
successor master servicer of such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be paid the
Master Servicing Fee.
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 Xxxxxxx Mac (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
Mae and Xxxxxxx Mac guidelines) and (ii) have a net worth of not less than
$25,000,000.
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. No such resignation shall become effective until the Trustee shall have
assumed, or a successor master servicer satisfactory to the Trustee and the
Depositor shall have assumed, the Master Servicer's responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Trustee.
If at any time, Xxxxx Fargo Bank, N.A., 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 Bank, N.A. 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 (which
shall not be unreasonably withheld or delayed), and upon delivery to the Trustee
and the Depositor of a letter from each Rating Agency to the effect that such
action shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof,
the duties of the Master Servicer are transferred to a successor master
servicer, the entire compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 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 Distribution Account in accordance with the
provisions of Section 9.07 and Section 9.12.
The Master Servicer shall not be liable for any acts or omissions
of the 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 performance of the obligations of the Servicers as required under this
Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Servicers, Depositor, the Sponsor, the
Responsible Party, the Securities Administrator, the Custodian, the Trustee and
the Trust, 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 Servicers, Depositor, the Sponsor,
the Responsible Party, the Securities Administrator, the Custodian, the Trustee
or the Trust 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, including any failure by the Master Servicer or any Subcontractor
utilized by such Master Servicer to deliver any information, report,
certification or accountants' letter when and as required under Sections 3.22,
3.23 or 8.12, including without limitation any failure by the Master Servicer to
identify any Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB. The Depositor, the Sponsor, the
Responsible Party, the Securities Administrator, each Servicer, the Custodian
and the Trustee 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 Sponsor, the Responsible Party, the Securities
Administrator, each Servicer, the Custodian, the Trustee or the Trust 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 this
Agreement.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement 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, (ii) resulting from any breach of the applicable Servicer's
obligations in connection with this Agreement for which such Servicer has
performed its obligation to indemnify the Trustee and the Custodian pursuant to
Section 6.05, (iii) resulting from any breach of the Responsible Party's
obligations in connection with the Purchase Agreement, for which the Responsible
Party has performed its obligation to indemnify the Master Servicer pursuant to
the Purchase Agreement, or (iv) the Master Servicer's willful malfeasance, bad
faith or negligence or by reason of its reckless disregard of its duties and
obligations under this 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 Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
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.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
the Securities Administrator shall not be liable except for the
performance of such duties and obligations as are specifically set forth
in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Securities Administrator and the
Securities Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Securities Administrator
and conforming to the requirements of this Agreement which it believed
in good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Securities Administrator, unless it shall be
conclusively determined by a court of competent jurisdiction, such
determination no longer subject to appeal, that the Securities
Administrator was negligent in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with
respect to any action or inaction taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of Holders of
Certificates evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Securities Administrator, or
exercising or omitting to exercise any trust or power conferred upon the
Securities Administrator under this Agreement; and
(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 Servicers or the Trustee.
The Securities Administrator shall be permitted to utilize one or
more Subcontractors for the performance of certain of its obligations under this
Agreement, provided that the Securities Administrator complies with Section
3.02(e) as if the Securities Administrator were a "Servicer" pursuant to that
Section. The Securities Administrator shall indemnify the Depositor, the Sponsor
and any director, officer, employee or agent of the Depositor or the Sponsor and
hold them harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
in any way related to the failure of the Securities Administrator to perform any
of its obligations under Section 3.22 or Section 3.23, including without
limitation any failure by the Securities Administrator to identify pursuant to
Section 3.02(e) any Subcontractor that is a Servicing Function Participant. This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Securities Administrator.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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 any Servicer under this
Agreement;
(vii) 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; and
(viii) 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
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.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
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 Sponsor,
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, the Interest Rate Swap
Agreement, the Interest Rate Cap 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 any Servicer of any funds paid to the Depositor or any Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Depositor or any Servicer.
The Securities Administrator shall execute the Interest Rate Swap
Agreement, the Interest Rate Cap Agreement and 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
Interest Rate Swap Agreement, the Interest Rate Cap Agreement and 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 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 Securities Administrator 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, the Interest Rate Swap Agreement or the Interest Rate Cap Agreement,
(b) the Mortgage Loans or (c) 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 or under such other agreements, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Securities Administrator's duties
hereunder or (iii) incurred by reason of any action of the Securities
Administrator taken at the direction of the Certificateholders, provided that
any such loss, liability or expense constitutes an "unanticipated expense
incurred by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Securities Administrator
hereunder. Without limiting the foregoing, and except for any such expense,
disbursement or advance as may arise from the Securities Administrator's
negligence, bad faith or willful misconduct, or which would not be an
"unanticipated expense" within the meaning of the second preceding sentence, the
Securities Administrator shall be reimbursed by the Trust for all reasonable
expenses, disbursements and advances incurred or made by the Securities
Administrator in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of any
accountant, engineer, appraiser or other agent that is not regularly employed by
the Securities Administrator, to the extent that the Securities Administrator
must engage such Persons to perform acts or services hereunder and (C) printing
and engraving expenses in connection with preparing any Definitive Certificates.
The Trust shall fulfill its obligations under this paragraph from amounts on
deposit from time to time in the Distribution Account. The Securities
Administrator 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 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 9.06, 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 Servicer, the Depositor or an affiliate of the Depositor unless
the Securities Administrator functions are operated through an institutional
trust department of the Securities Administrator, (ii) must be authorized to
exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is a
Rating Agency and rates such successor, or the equivalent rating by Standard &
Poor's or Xxxxx'x. If no successor Securities Administrator shall have been
appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant to
Section 10.07, then the Trustee may (but shall not be obligated to) become the
successor Securities Administrator. The Depositor shall appoint a successor to
the Securities Administrator in accordance with Section 10.07. The Trustee shall
notify the Rating Agencies of any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities
Administrator. The Securities Administrator may at any time resign by giving
written notice of resignation to the Depositor, the Trustee and each Rating
Agency not less than 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 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.
If at any time 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, or if at any time
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, or 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 the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Holders of Certificates entitled to at least a majority of
the Voting Rights may at any time remove the Securities Administrator and
appoint a successor Securities Administrator by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys in fact
duly authorized, one complete set of which instruments shall be delivered by the
successor Securities Administrator to the Trustee, one complete set to the
Securities Administrator so removed and one complete set to the successor so
appointed. Notice of any removal of the Securities Administrator shall be given
to each Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Notwithstanding the foregoing, if at any time the Securities
Administrator resigns pursuant to Section 10.07, the Trustee shall be authorized
to appoint, with the Depositor's consent, a successor Securities Administrator
concurrently with the appointment of a successor Master Servicer.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor, the 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.
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 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 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 9.06 hereof, without the execution or filing of any paper
or further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 10.10 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 Sections 11.02 and 11.03, the obligations and
responsibilities of the Depositor, the Master Servicer, the Securities
Administrator, the Servicers and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase, on the Optional
Termination Date, by Avelo (or if Avelo is no longer acting as a Servicer of any
of the Mortgage Loans, 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;
provided that the Master Servicer may or may not accommodate any such request in
its sole discretion) of all Mortgage Loans (and REO Properties) at the price
equal to 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 and the amount of outstanding
Servicing Advances on such Mortgage Loans through the Due Date preceding the
date of purchase, (ii) the lesser of (x) the appraised value of any REO Property
as determined by an independent appraiser selected by the Person electing to
terminate the Trust Fund, at the expense of such Person, plus accrued and unpaid
interest on the related Mortgage Loan at the applicable Mortgage Interest Rates
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 (as provided to the Securities Administrator by the Swap
Provider pursuant to the Interest Rate Swap Agreement) (such sum, the
"Termination Price") and (b) the later of (i) the maturity or other Liquidation
Event (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 proceeds of the purchase or sale of such assets of the Trust
on to the Optional Termination Date or pursuant to the Auction Call described in
Section 11.01 above (other than, with respect to any Mortgage Loan and the
related REO Property, an amount equal to the excess, if any, of the amount in
Section 11.01(a)(ii) over the amount in Section 11.01(a)(i) (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 by Avelo or 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, a Servicer notifies the Securities Administrator in writing
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, such Servicer shall
direct the Securities Administrator promptly to send a Notice of Final
Distribution to each Certificateholder, the Swap Provider and the Cap Provider.
If Avelo elects to terminate the Trust Fund pursuant to clause (a) of Section
11.01, by the 25th day of the month preceding the month of the final
distribution, Avelo shall notify the Depositor, the Master Servicer, the
Securities Administrator and the Trustee in writing of the date Avelo intends to
terminate the Trust Fund and of the applicable Termination 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 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.
In the event such Notice of Final Distribution is given, Avelo
shall promptly deposit such funds in the applicable Collection Account. During
the time such funds are held in such Collection Account, such funds shall be
invested, at the direction of Avelo in Permitted Investments, and Avelo shall be
entitled to all income from such investments, and shall be responsible for all
losses from such investments. In connection with any such termination of the
Trust Fund, Avelo shall cause all funds in the Collection Account, including the
applicable Termination Price for the Mortgage Loans and REO Properties to be
remitted to the Master Servicer for deposit in the Distribution Account on the
Business Day prior to the applicable Distribution Date. Upon such final deposit
with respect to the Trust Fund and the receipt by the Custodian of a Request for
Release therefor, the Custodian shall promptly release to Avelo, 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 to the applicable Servicer
(including all unreimbursed Advances and any Servicing Fees accrued and unpaid
as of the date the Termination Price is paid), the Depositor, the Master
Servicer, the Securities Administrator and the Trustee hereunder), in each case
on the final Distribution Date and in the order set forth in Section 4.02, 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 4.02, and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Residual Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event
Avelo (or the Master Servicer pursuant to an Auction Call) exercises its
purchase option with respect to the Mortgage Loans as provided in Section 11.01,
the Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee and Securities Administrator have been supplied
with an Opinion of Counsel, at the expense of Avelo 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 shall sell all of the assets of
the Trust Fund to Avelo, or its designee, and, within 90 days of such sale,
shall distribute to the Certificateholders the proceeds of such sale in complete
liquidation of each of the Trust REMICs;
(b) The Securities Administrator shall sell all of the assets of
the Trust Fund to the entity that submitted the highest bid 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 REMIC; and
(c) 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 90 day
liquidation period for each such Trust REMIC was the date on which the
Securities Administrator sold the assets of the Trust Fund to Avelo, or the
entity that submitted the highest bid received pursuant to the Auction Call, as
applicable.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time
to time by the Depositor, the Securities Administrator, the Responsible Party,
the Master Servicer, each Servicer, the Custodian and the Trustee without the
consent of any of the Certificateholders (i) to cure any ambiguity or mistake,
(ii) to correct any defective provision herein or to supplement any provision
herein which may be inconsistent with any other provision herein, (iii) to add
to the duties of the Depositor, the Securities Administrator, the Master
Servicer, the Custodian or any Servicer, (iv) to add any other provisions with
respect to matters or questions arising hereunder, (v) to modify, alter, amend,
add to or rescind any of the terms or provisions contained in this Agreement, or
(vi) to comply with any requirements in Regulation AB; provided, that any
amendment pursuant to clause (iv) or (v) above shall not, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Securities Administrator, the Trustee or the Trust Fund), adversely affect in
any material respect the interests of any Certificateholder; provided, further,
that the amendment shall be deemed not 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 by such Rating Agency
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. The Responsible Party,
the Custodian, the Trustee, the Securities Administrator, the Master Servicer,
the Depositor and each Servicer also may at any time and from time to time amend
this Agreement, but 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 has 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.
This Agreement may also be amended from time to time by the
Depositor, the Securities Administrator, the Master Servicer, the Responsible
Party, each Servicer, the Custodian and the Trustee with the consent of the
Holders of Certificates evidencing percentage interests aggregating not less
than 66(2)/3% 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
66(2)/3%, 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 shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee 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 or the grantor trust to fail
to qualify as a grantor trust 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) of such
amendment, stating the provisions of the Agreement to be amended.
The Responsible Party shall be obligated to execute any amendment
to this Agreement, unless such amendment would adversely affect in any material
respect a right or obligation of the Responsible Party.
Notwithstanding the foregoing provisions of this Section 12.01,
with respect to any amendment that significantly modifies the permitted
activities of the Trustee or the Servicers, 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
requiring the consent of Certificateholders, the Securities Administrator 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 Securities Administrator may prescribe.
Nothing in this Agreement shall require the Trustee, the Master
Servicer, the Securities Administrator or the Custodian 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 Master Servicer, the Securities Administrator, the Trustee or
the Trust Fund), satisfactory to the Securities Administrator, the Master
Servicer and the Trustee that (i) such amendment is permitted and is not
prohibited by this Agreement and that all requirements for amending this
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 foregoing, any amendment to this Agreement
shall require the prior written consent of the Swap Provider or the Cap Provider
if such amendment materially and adversely affects the rights or interests of
the Swap Provider or the Cap Provider, as applicable.
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 Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Depositor at the expense of the Trust, but only upon receipt of
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
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, as the case may be, or if for any other reason
this Agreement is held or deemed to create a security interest in either 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.
Section 12.05 Notices. (a) The Securities Administrator shall
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been
cured;
3. The resignation or termination of any Servicer, the Securities
Administrator, the Master Servicer or the Trustee and the appointment of any
successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.03, 2.07 or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly furnish to each
Rating Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03.
2. Any notice of a purchase of a Mortgage Loan pursuant to
Section 3.28.
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, to GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx and Asset
Management Group/Senior Asset Manager (and, in the case of the Officer's
Certificate delivered pursuant to Section 3.22, to PricewaterhouseCoopers LLP,
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx), or such other address as may be hereafter furnished to the
Trustee, the Securities Administrator, the Master Servicer and the Servicers by
the Depositor in writing; (b) in the case of New Century, New Century Mortgage
Corporation, 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxx Xxxxx, Executive Vice President, or such other address as may be hereafter
furnished to the Swap Provider and the other parties hereto by New Century in
writing; (c) in the case of the Responsible Party, NC Capital Corporation, 00000
Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx,
Executive Vice President, or such other address as may be hereafter furnished to
the other parties hereto by the Responsible Party in writing; (d) in the case of
the Trustee, to the Corporate Trust Office, or such other address as may be
hereafter furnished to the other parties hereto by the Trustee in writing; (e)
in the case of Avelo, (i) prior to April 13, 2007, 000 X. Xxx Xxxxxxx Xxxx.,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attn: President and General Counsel and (ii) on
and after April 13, 2007, 000 X. Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, Attn: President and General Counsel, or such other address as may
be hereafter furnished to the Swap Provider, the Cap Provider and the other
parties hereto by Avelo in writing; (f) in the case of the Deutsche Bank,
Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attention: Trust Administration - GS075C, or such other
address as may be hereafter furnished to the Swap Provider, the Cap Provider and
the other parties hereto in writing; (g) in the case of Xxxxx Fargo, Xxxxx Fargo
Bank, N.A., (i) for the purpose of certificate transfers, Xxxxx Fargo Center,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention
Corporate Trust Services--GSAMP 2007-NC1 and (ii) for all other purposes, 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Services
Manager--GSAMP 2007-NC1, or such other addresses as may be hereafter furnished
to the Swap Provider, the Cap Provider and the other parties hereto in writing;
(h) in the case of the Swap Provider and the Cap Provider, Xxxxxxx Sachs Mitsui
Marine Derivative Products 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, or such other address as may be hereafter furnished to the
other parties hereto in writing and (i) 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.
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 Assignment; Sales; Advance Facilities. (a) A
Servicer is hereby authorized to enter into a financing or other facility (any
such arrangement, an "Advance Facility"), the documentation for which complies
with Section 12.07(e) below, under which (1) such Servicer assigns or pledges
its rights under this Agreement to be reimbursed for any or all Advances to (i)
a Person, which may be a special-purpose bankruptcy-remote entity (an "SPV"),
(ii) a Person, which may simultaneously assign or pledge such rights to an SPV
or (iii) a lender (a "Lender"), which, in the case of any Person or SPV of the
type described in either of the preceding clauses (i) or (ii), may directly or
through other assignees and/or pledgees, assign or pledge such rights to a
Person, which may include a trustee acting on behalf of holders of debt
instruments (any such Person or any such Lender, an "Advance Financing Person"),
and/or (2) an Advance Financing Person agrees to fund all the Advances required
to be made by such Servicer pursuant to this Agreement. No consent of the
Trustee, Certificateholders or any other party shall be required before a
Servicer may enter into an Advance Facility nor shall the Trustee or the
Certificateholders be a third party beneficiary of any obligation of an Advance
Financing Person to a Servicer. Notwithstanding the existence of any Advance
Facility under which an Advance Financing Person agrees to fund Advances, (A) a
Servicer (i) shall remain obligated pursuant to this Agreement to make Advances
pursuant to and as required by this Agreement and (ii) shall not be relieved of
such obligations by virtue of such Advance Facility and (B) neither the Advance
Financing Person nor any Servicer's Assignee (as hereinafter defined) shall have
any right to proceed against or otherwise contact any Mortgagor for the purpose
of collecting any payment that may be due with respect to any related Mortgage
Loan or enforcing any covenant of such Mortgagor under the related Mortgage Loan
documents.
(b) If a Servicer enters into an Advance Facility, such Servicer
and the related Advance Financing Person shall deliver to the Securities
Administrator at the address set forth in Section 12.05 hereof a written notice
(an "Advance Facility Notice"), stating (a) the identity of the Advance
Financing Person and (b) the identity of the Person (the "Servicer's Assignee")
that will, subject to Section 12.07(c) hereof, have the right to make
withdrawals from the Collection Account pursuant to Section 3.11 hereof to
reimburse previously unreimbursed Advances ("Advance Reimbursement Amounts").
Advance Reimbursement Amounts (i) shall consist solely of amounts in respect of
Advances for which such Servicer would be permitted to reimburse itself in
accordance with Section 3.11 hereof, assuming such Servicer had made the related
Advance(s) and (ii) shall not consist of amounts payable to a successor Servicer
in accordance with Section 3.11 hereof to the extent permitted under Section
12.07(e) below.
(c) Notwithstanding the existence of an Advance Facility, a
Servicer, on behalf of the Advance Financing Person and that Servicer's
Assignee, shall be entitled to receive reimbursements of Advances in accordance
with Section 3.11 hereof, which entitlement may be terminated by the Advance
Financing Person pursuant to a written notice to the Trustee in the manner set
forth in Section 12.05 hereof. Upon receipt of such written notice, such
Servicer shall no longer be entitled to receive reimbursement for any Advance
Reimbursement Amounts and that Servicer's Assignee shall immediately have the
right to receive from the Collection Account all Advance Reimbursement Amounts.
Notwithstanding the foregoing, and for the avoidance of doubt, (i) a Servicer
and/or the Servicer's Assignee shall only be entitled to reimbursement of
Advance Reimbursement Amounts hereunder from withdrawals from the Collection
Account pursuant to Section 3.11 of this Agreement and shall not otherwise be
entitled to make withdrawals of, or receive, amounts that shall be deposited in
the Distribution Account pursuant to Sections 3.11(a)(i) and 3.27(b) hereof, and
(ii) none of the Trustee or the Certificateholders shall have any right to, or
otherwise be entitled to, receive any Advance Reimbursement Amounts to which
such Servicer or such Servicer's Assignee, as applicable, shall be entitled
pursuant to Section 3.11 hereof. An Advance Facility may be terminated by the
joint written direction of such Servicer and the related Advance Financing
Person. Written notice of such termination shall be delivered to the Trustee in
the manner set forth in Section 12.05 hereof. None of the Depositor or the
Trustee shall, as a result of the existence of any Advance Facility, have any
additional duty or liability with respect to the calculation or payment of any
Advance Reimbursement Amount, nor, as a result of the existence of any Advance
Facility, shall the Depositor or the Trustee have any additional responsibility
to track or monitor the administration of the Advance Facility or the payment of
Advance Reimbursement Amounts to such Servicer's Assignee. The applicable
Servicer shall indemnify the Depositor, the Securities Administrator, the Master
Servicer, the Trustee, any successor Servicer and the Trust Fund for any claim,
loss, liability or damage resulting from any claim by the related Advance
Financing Person, except to the extent that such claim, loss, liability or
damage resulted from or arose out of negligence, recklessness or willful
misconduct on the part of the Depositor, the Trustee or any successor Servicer,
as the case may be, or failure by the successor Servicer or the Trustee, as the
case may be, to remit funds as required by this Agreement. The applicable
Servicer shall maintain and provide to any successor Servicer and, upon request,
the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advance Financing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(d) An Advance Financing Person who receives an assignment or
pledge of rights to receive Advance Reimbursement Amounts and/or whose
obligations are limited to the funding of Advances pursuant to an Advance
Facility shall not be required to meet the criteria for qualification as a
Subservicer.
(e) As between a predecessor Servicer and its Advance Financing
Person, on the one hand, and a successor Servicer and its Advance Financing
Person, if any, on the other hand, Advance Reimbursement Amounts on a
loan-by-loan basis with respect to each Mortgage Loan as to which an Advance
shall have been made and be outstanding shall be allocated on a "first-in, first
out" basis. In the event such Servicer's Assignee shall have received some or
all of an Advance Reimbursement Amount related to Advances that were made by a
Person other than such predecessor Servicer or its related Advance Financing
Person in error, then such Servicer's Assignee shall be required to remit any
portion of such Advance Reimbursement Amount to each Person entitled to such
portion of such Advance Reimbursement Amount. Without limiting the generality of
the foregoing, such Servicer shall remain entitled to be reimbursed by the
Advance Financing Person for all Advances funded by such Servicer to the extent
the related Advance Reimbursement Amounts have not been assigned or pledged to
such Advance Financing Person or that Servicer's Assignee.
(f) For purposes of any Officer's Certificate of any Servicer
made pursuant to Section 4.01(d), any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance referred to therein may have been made by such
Servicer or any predecessor Servicer. In making its determination that any P&I
Advance or Servicing Advance theretofore made has become a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance, such Servicer shall apply the same
criteria in making such determination regardless of whether such P&I Advance or
Servicing Advance shall have been made by such Servicer or any predecessor
Servicer.
(g) Any amendment to this Section 12.07 or to any other provision
of this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 12.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Securities Administrator, the Master Servicer, the Trustee, the
Depositor and each Servicer without the consent of any Certificateholder,
provided such amendment complies with Section 12.01 hereof. All reasonable costs
and expenses (including attorneys' fees) of each party hereto of any such
amendment shall be borne solely by each Servicer. The parties hereto hereby
acknowledge and agree that: (a) the Advances financed by and/or pledged to an
Advance Financing Person under any Advance Facility are obligations owed to such
Servicer payable only from the cash flows and proceeds received under this
Agreement for reimbursement of Advances only to the extent provided herein, and
the Trustee and the Trust are not, as a result of the existence of any Advance
Facility, obligated or liable to repay any Advances financed by the Advance
Financing Person; (b) such Servicer will be responsible for remitting to the
Advance Financing Person the applicable amounts collected by it as reimbursement
for Advances funded by the Advance Financing Person, subject to the provisions
of this Agreement; and (c) the Trustee shall not have any responsibility to
track or monitor the administration of the financing arrangement between such
applicable Servicer and any Advance Financing Person.
Section 12.08 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 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 12.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.09 Inspection and Audit Rights. Each Servicer agrees
that on reasonable prior notice, it will permit any representative of the
Depositor, the Master Servicer or the Trustee during such Servicer's normal
business hours, to examine all the books of account, records, reports and other
papers of such Servicer relating to the applicable Mortgage Loans, to make
copies and extracts therefrom, to cause such books to be audited by independent
certified public accountants selected by the Depositor, the Master Servicer or
the Trustee and to discuss its affairs, finances and accounts relating to such
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision each Servicer hereby authorizes said accountants to
discuss with such representative such affairs, finances and accounts), all at
such reasonable times and as often as may be reasonably requested. Any
reasonable out-of-pocket expense of a Servicer incident to the exercise by the
Depositor, the Master Servicer or the Trustee of any right under this Section
12.09 shall be borne by the party making the request (except in the case of
requests made by the Trustee, such expenses shall be borne by such Servicer).
Each Servicer may impose commercially reasonable restrictions on dissemination
of information such Servicer defines as confidential.
Nothing in this Section 12.09 shall limit the obligation of each
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of such Servicer to provide access as
provided in this Section 12.09 as a result of such obligation shall not
constitute a breach of this Section. Nothing in this Section 12.09 shall require
each Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. Each Servicer shall
not be required to make copies of or to ship documents to any Person who is not
a party to this Agreement, and then only if provisions have been made for the
reimbursement of the costs thereof.
Section 12.10 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
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.11 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 12.12 Limitation of Damages. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL
OR EQUITABLE PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE
APPLICABLE WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
Section 12.13 Rights of Third Parties. Each of the Swap Provider,
the Cap Provider and each Person entitled to indemnification hereunder who is
not a party hereto, 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.
Section 12.14 No Solicitation. From and after the Closing Date,
each Servicer agrees that it will not take any action or cause any action to be
taken by any of its agents or Affiliates, or by any independent contractors or
independent mortgage brokerage companies on its behalf, to personally, by
telephone, mail or electronic mail, specifically target through direct
solicitations, the Mortgagors under the Mortgage Loans for the purpose of
refinancing such Mortgage Loans; provided, however, that it is understood and
agreed that promotions undertaken by such Servicer or any of its Affiliates
which (i) concern optional insurance products (excluding single premium
insurance) or other financial products or services (excluding any mortgage
related products such as home equity lines of credit and second mortgage
products), or (ii) are directed to the general public at large or certain
segments thereof exclusive of the Mortgagors as a targeted group and, including
mass mailings based on commercially acquired mailing lists, newspaper, radio and
television advertisements shall not constitute solicitation under this Section
12.14, nor is such Servicer prohibited from responding to unsolicited requests
or inquiries made by a Mortgagor or his or her agent.
Section 12.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel or otherwise, and
agree to comply with reasonable requests made by the Depositor in good faith for
delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with the Trust, the Securities
Administrator, the Master Servicer, each Servicer, the Trustee and the Custodian
shall cooperate fully with the Depositor to deliver to the Depositor (including
its assignees or designees), any and all statements, reports, certifications,
records and any other information available to such party and reasonably
necessary in the good faith determination of the Depositor to permit the
Depositor to comply with the provisions of Regulation AB.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee, the Securities
Administrator, the Master Servicer, the Responsible Party, the Custodian and
each Servicer 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.,
as Depositor,
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
NC CAPITAL CORPORATION,
as Responsible Party,
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: SVP
NEW CENTURY MORTGAGE CORPORATION, as
Servicer,
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: SVP
AVELO MORTGAGE, L.L.C.,
as Servicer,
By: /s/ J. Xxxxxx Xxxxxxx
------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: President
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities
Administrator
By: /s/ Xxxxxxxx X.X. Xxxxx
------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
Title: Associate
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signer
LASALLE BANK NATIONAL ASSOCIATION,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
SCHEDULE I
Mortgage Loan Schedule
(Delivered to the Securities Administrator, the Master Servicer and the Trustee
and not attached to the Pooling and Servicing Agreement)
SCHEDULE II
GSAMP Trust 2007-NC1,
Mortgage Pass-Through Certificates
Representations and Warranties of the Responsible Party as to the Individual
Mortgage Loans
The Responsible Party hereby makes the representations and
warranties set forth in this Schedule II as to the individual Mortgage Loans
only to the Depositor, Avelo, New Century, the Securities Administrator, the
Master Servicer, the Trustee and the Custodian as of February 20, 2007 (the
"Securitization Closing Date") (unless otherwise expressly indicated).
Capitalized terms used but not otherwise defined in this Schedule II shall have
the meanings ascribed thereto in the Purchase Agreement:
(1) Mortgage Loans as Described. The Responsible Party has
delivered to the Sponsor the Data Tape Information and the information
set forth on the Mortgage Loan Schedule is true and correct;
(2) Payments Current. All payments required to be made up to the
applicable Original Purchase Date for the Mortgage Loan under the terms
of the Mortgage Note, other than payments for which the related due date
was not thirty or more days prior to the Securitization Closing Date,
have been made and credited. No Mortgage Loan has a Thirty-day
Delinquency nor has the Mortgage Loan had a Thirty-day Delinquency more
than once since the origination of the Mortgage Loan. The first Monthly
Payment shall be made with respect to the Mortgage Loan on its Due Date
or within the grace period, all in accordance with the terms of the
related Mortgage Note;
(3) No Outstanding Charges. There are no defaults in complying
with the terms of the Mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been
paid, or an escrow of funds has been established in an amount sufficient
to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Responsible Party has not
advanced funds, or induced, solicited or knowingly received any advance
of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except
for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is earlier, to the
day which precedes by one (1) month the Due Date of the first Monthly
Payment;
(4) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any
respect, from the date of origination except by a written instrument
which has been recorded, if necessary to protect the interests of the
Sponsor, and which has been delivered to the Trustee or to such other
Person as the Sponsor shall designate in writing, and the terms of which
are reflected in the related Mortgage Loan Schedule, the Data Tape
Information or included in the Mortgage File. No Mortgage Loan has been
modified so as to restructure the payment obligations or re-age the
Mortgage Loan. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy
and the title insurer, if any, to the extent required by the policy, and
its terms are reflected on the related Mortgage Loan Schedule, if
applicable. No Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement, approved by the issuer of
any related PMI Policy and the title insurer, to the extent required by
the policy, and which assumption agreement is part of the Mortgage Loan
File delivered to the Trustee or to such other Person as the Sponsor
shall designate in writing and the terms of which are reflected in the
Mortgage Loan Schedule and the Data Tape Information;
(5) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, nor will the operation of any of the
terms of the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render either the Mortgage Note or the Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto,
and no Mortgagor was a debtor in any state or Federal bankruptcy or
insolvency proceeding at the time the Mortgage Loan was originated;
(6) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured
by a generally acceptable insurer against loss by fire, hazards of
extended coverage and such other hazards generally insured against in
the jurisdiction in which the Mortgaged Property is located by a prudent
lender making mortgage loans similar to the Mortgage Loans, as well as
all additional requirements set forth in Section 3.13 of the Pooling and
Servicing Agreement. If required by the National Flood Insurance Act of
1968, as amended, each Mortgage Loan is covered by a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration is in effect which conforms to the standard a
prudent lender would require, as well as all additional requirements set
forth in Section 3.13 of the Pooling and Servicing Agreement. All
individual insurance policies contain a standard mortgagee clause naming
the Responsible Party and its successors and assigns as mortgagee, and
all premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain the hazard insurance policy at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at such Mortgagor's cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state law
or regulation, the Mortgagor has been given an opportunity to choose the
carrier of the required hazard insurance, provided the policy is not a
"master" or "blanket" hazard insurance policy covering a condominium, or
any hazard insurance policy covering the common facilities of a planned
unit development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in
full force and effect and inure to the benefit of the Sponsor upon the
consummation of the transactions contemplated by this Agreement. The
Responsible Party has not engaged in, and has no knowledge of the
Mortgagor's or any servicer's having engaged in, any act or omission
which would impair the coverage of any such policy, the benefits of the
endorsement provided for herein, or the validity and binding effect of
such policy, without limitation, no unlawful fee, commission, kickback
or other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or
entity, and no such unlawful items have been received, retained or
realized by the Responsible Party;
(7) Compliance with Applicable Laws. Any and all requirements of
any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit
protection, predatory, abusive and fair lending laws, equal credit
opportunity and disclosure laws or unfair and deceptive practices laws
applicable to the Mortgage Loan including, without limitation, any
provisions relating to prepayment penalties, have been complied with,
the consummation of the transactions contemplated hereby will not
involve the violation of any such laws or regulations, and the
Responsible Party shall maintain in its possession, available for the
Sponsor's inspection, and shall deliver to the Sponsor upon demand,
evidence of compliance with all such requirements;
(8) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and
the Mortgaged Property has not been released from the lien of the
Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or
rescission. The Responsible Party has not waived the performance by the
Mortgagor of any action, if the Mortgagor's failure to perform such
action would cause the Mortgage Loan to be in default, nor has the
Responsible Party waived any default resulting from any action or
inaction by the Mortgagor;
(9) Location and Type of Mortgaged Property. The Mortgaged
Property is located in the state identified in the Mortgage Loan
Schedule and consists of real property with a detached single family
residence erected thereon, or a two to four family dwelling, or an
individual condominium unit in a low rise condominium project, or an
individual unit in a planned unit development or a de minimis planned
unit development which is in each case four stories or less, provided,
however, that no Mortgage Loan is secured by a single parcel of real
property with a cooperative housing corporation, a log home or a mobile
home erected thereon or manufactured housing or by a mixed use property,
a property in excess of 10 acres, or other unique property types. As of
the date of origination, no portion of the Mortgaged Property was used
for commercial purposes, and since the date of origination, no portion
of the Mortgaged Property has been used for commercial purposes;
provided, that Mortgaged Properties which contain a home office shall
not be considered as being used for commercial purposes as long as the
Mortgaged Property has not been altered for commercial purposes and is
not storing any chemicals or raw materials other than those commonly
used for homeowner repair, maintenance and/or household purposes;
(10) Valid First or Second Lien. The Mortgage is a valid,
subsisting, enforceable and perfected, first or second lien (as
applicable) on the Mortgaged Property, including all buildings and
improvements on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems
located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
(a) the lien of current real property taxes and
assessments not yet due and payable;
(b) covenants, conditions and restrictions,
rights of way, easements and other matters of
the public record as of the date of recording
acceptable to prudent mortgage lending
institutions generally and specifically
referred to in the lender's title insurance
policy delivered to the originator of the
Mortgage Loan and (a) specifically referred
to or otherwise considered in the appraisal
made for the originator of the Mortgage Loan
or (b) which do not adversely affect the
Appraised Value of the Mortgaged Property set
forth in such appraisal;
(c) other matters to which like properties are
commonly subject which do not materially
interfere with the benefits of the security
intended to be provided by the Mortgage or
the use, enjoyment, value or marketability of
the related Mortgaged Property; and
(d) with respect to Second Lien Mortgage Loans,
the lien of the first mortgage on the
Mortgaged Property.
Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the Mortgage
Loan establishes and creates a valid, subsisting, enforceable and perfected (A)
first lien and first priority security interest with respect to each first lien
mortgage loan, or (B) second lien and second priority security interest with
respect to each Second Lien Mortgage Loan, in either case, on the property
described therein and Responsible Party has full right to sell and assign the
same to Sponsor.
Unless set forth on the Mortgage Loan Schedule, the
Mortgaged Property with respect to any Second Lien Mortgage Loan is not subject
to a first lien mortgage loan which is not a Mortgage Loan;
(11) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor
in connection with a Mortgage Loan are genuine, and each is the legal,
valid and binding obligation of the maker thereof enforceable in
accordance with its terms (including, without limitation, any provisions
therein relating to Prepayment Penalties). All parties to the Mortgage
Note, the Mortgage and any other such related agreement had legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note, the Mortgage and any such agreement, and the Mortgage
Note, the Mortgage and any other such related agreement have been duly
and properly executed by other such related parties. No fraud, error,
omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any Person,
including without limitation, the Mortgagor, any appraiser, any builder
or developer, or any other party involved in the origination or
servicing of the Mortgage Loan. The Responsible Party has reviewed all
of the documents constituting the Servicing File and has made such
inquiries as it deems necessary to make and confirm the accuracy of the
representations set forth herein;
(12) Full Disbursement of Proceeds. The Mortgage Loan has been
closed and the proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and
all requirements as to completion of any on site or off site improvement
and as to disbursements of any escrow funds therefor have been complied
with. All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Mortgage were paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due under
the Mortgage Note or Mortgage;
(13) Ownership. The Responsible Party is the sole owner of record
and holder of the Mortgage Loan and the indebtedness evidenced by each
Mortgage Note subject to the interest of Responsible Party's Warehouse
Lender which will be released on or before the sale to the Sponsor of
the Mortgage Loans. The Mortgage Loan is not assigned or pledged, and
the Responsible Party has good, indefeasible and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to
the Sponsor free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and has full
right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan
pursuant to this Agreement and following the sale of each Mortgage Loan,
the Sponsor will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest. The Responsible Party intends to relinquish all
rights to possess, control and monitor the Mortgage Loan. After the
Securitization Closing Date, the Responsible Party will have no right to
modify or alter the terms of the sale of the Mortgage Loan and the
Responsible Party will have no obligation or right to repurchase the
Mortgage Loan or substitute another Mortgage Loan, except as provided in
this Agreement;
(14) Doing Business. All parties which have had any interest in
the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise,
are (or, during the period in which they held and disposed of such
interest, were) (1) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Mortgaged Property is
located, and (2) either (i) organized under the laws of such state, or
(ii) qualified to do business in such state, or (iii) a federal savings
and loan association, a savings bank or a national bank having a
principal office in such state, or (3) not doing business in such state;
(15) CLTV, LTV. No Mortgage Loan that is a Second Lien Mortgage
Loan has a CLTV in excess of 100%;
(16) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan
for which the related Mortgaged Property is located in California a CLTA
lender's title insurance policy, or other generally acceptable form of
policy or insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac and each
such title insurance policy is issued by a title insurer that would be
acceptable to a prudent lender making mortgage loans similar to the
Mortgage Loans and qualified to do business in the jurisdiction where
the Mortgaged Property is located, insuring the Responsible Party, its
successors and assigns, as to the first priority lien (with respect to
first lien Mortgage Loans) or second priority lien (with respect to
Second Lien Mortgage Loans) of the Mortgage in the original principal
amount of the Mortgage Loan, subject only to the exceptions contained in
clauses (a), (b), (c) and (d) of representation (10) of this Schedule
IV, and in the case of adjustable rate Mortgage Loans, against any loss
by reason of the invalidity or unenforceability of the lien resulting
from the provisions of the Mortgage providing for adjustment to the
Mortgage Interest Rate and Monthly Payment. Where required by state law
or regulation, the Mortgagor has been given the opportunity to choose
the carrier of the required mortgage title insurance. Additionally, such
lender's title insurance policy affirmatively insures ingress and
egress, and against encroachments by or upon the Mortgaged Property or
any interest therein. The title policy does not contain any special
exceptions (other than the standard exclusions) for zoning and uses and
has been marked to delete the standard survey exceptions or to replace
the standard survey exception with a specific survey reading. The
Responsible Party, its successor and assigns, are the sole insureds of
such lender's title insurance policy, and such lender's title insurance
policy is valid and remains in full force and effect and will be in
force and effect upon the consummation of the transactions contemplated
by this Agreement. No claims have been made under such lender's title
insurance policy, and no prior holder of the related Mortgage, including
the Responsible Party, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy,
including without limitation, no unlawful fee, commission, kickback or
other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or
entity, and no such unlawful items have been received, retained or
realized by the Responsible Party;
(17) No Defaults. As of the Original Purchase Date, other than
payments due but not yet 30 days or more delinquent, there is no
default, breach, violation or event which would permit acceleration
existing under the Mortgage or the Mortgage Note and no event which,
with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and neither the Responsible Party nor
any of its affiliates nor any of their respective predecessors, have
waived any default, breach, violation or event which would permit
acceleration. With respect to each Second Lien Mortgage Loan, (i) the
prior mortgage is in full force and effect, (ii) there is no default,
breach, violation or event of acceleration existing under such prior
mortgage or the related mortgage note, (iii) as of the Securitization
Closing Date, no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration thereunder, and
either (A) the prior mortgage contains a provision which allows or (B)
applicable law requires, the mortgagee under the Second Lien Mortgage
Loan to receive notice of, and affords such mortgagee an opportunity to
cure any default by payment in full or otherwise under the prior
mortgage;
(18) No Mechanics' Liens. There are no mechanics' or similar
liens or claims which have been filed for work, labor or material (and
no rights are outstanding that under law could give rise to such liens)
affecting the related Mortgaged Property which are or may be liens prior
to, or equal or coordinate with, the lien of the related Mortgage;
(19) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property, and no improvements on
adjoining properties encroach upon the Mortgaged Property. No
improvement located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation;
(20) Origination; Payment Terms. Either (a) the Mortgage Loan was
originated by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit union, insurance company or other similar institution which is
supervised and examined by a federal or state authority, or (b) the
following requirements have been met with respect to the Mortgage Loan:
the Responsible Party meets the requirements set forth in clause (a),
and (i) such Mortgage Loan was underwritten in accordance with standards
established by the Responsible Party, using application forms and
related credit documents approved by the Responsible Party, (ii) the
Responsible Party approved each application and the related credit
documents before a commitment by the correspondent was issued, and no
such commitment was issued until the Responsible Party agreed to fund
such Mortgage Loan, (iii) the closing documents for such Mortgage Loan
were prepared on forms approved by the Responsible Party, and (iv) such
Mortgage Loan was actually funded by the Responsible Party and was
purchased by the Responsible Party at closing or soon thereafter. The
documents, instruments and agreements submitted for loan underwriting
were not falsified and contain no untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary
to make the information and statements therein not misleading. No
Mortgage Loan contains terms or provisions which would result in
negative amortization. Except with respect to Interest Only Mortgage
Loans, principal payments on the Mortgage Loan commenced no more than
sixty days after funds were disbursed in connection with the Mortgage
Loan. The Mortgage Interest Rate as well as the Lifetime Rate Cap and
the Periodic Cap, are as set forth on the related Mortgage Loan
Schedule. Except with respect to Interest Only Mortgage Loans, the
Mortgage Note is payable in equal monthly installments of principal and
interest, with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by the stated maturity date, over an
original term of not more than thirty years from commencement of
amortization. With respect to Adjustable Rate Mortgage Loans, such
installments of interest are subject to change due to the adjustments to
the Mortgage Interest Rate on each Interest Rate Adjustment Date. Unless
otherwise specified on the description of pool characteristics on the
Mortgage Loan Schedule, the Mortgage Loan is payable on the first day of
each month. There are no Convertible Mortgage Loans which contain a
provision allowing the Mortgagor to convert the Mortgage Note from an
adjustable interest rate Mortgage Note to a fixed interest rate Mortgage
Note. No Mortgage Loan is a balloon mortgage loan that has an original
stated maturity of less than seven (7) years;
(21) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including,
(i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure. Upon default
by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee's sale
of, the Mortgaged Property pursuant to the proper procedures, the holder
of the Mortgage Loan will be able to deliver good and merchantable title
to the Mortgaged Property. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial
precedent with respect to bankruptcy and right of redemption or similar
law;
(22) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines. The Mortgage Note and Mortgage are on forms acceptable to
Xxxxxxx Mac or Xxxxxx Mae and the Responsible Party has not made any
representations to a Mortgagor that are inconsistent with the mortgage
instruments used;
(23) Occupancy of the Mortgaged Property. As of the
Securitization Closing Date the Mortgaged Property is lawfully occupied
under applicable law. All inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of
the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate authorities;
(24) No Additional Collateral. The Mortgage Note is not and has
not been secured by any collateral except the lien of the corresponding
Mortgage and the security interest of any applicable security agreement
or chattel mortgage referred to in clause (j) above;
(25) Deeds of Trust. In the event the Mortgage constitutes a deed
of trust, a trustee, authorized and duly qualified under applicable law
to serve as such, has been properly designated and currently so serves
and is named in the Mortgage, and no fees or expenses are or will become
payable by the Sponsor to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(26) Acceptable Investment. To the Responsible Party's knowledge,
there are no circumstances or conditions with respect to the Mortgage,
the Mortgaged Property, the Mortgagor, the Mortgage File or the
Mortgagor's credit standing that can reasonably be expected to cause
private institutional investors who invest in sub prime mortgage loans
to regard the Mortgage Loan as an unacceptable investment, cause the
Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan, or cause the Mortgage Loans to
prepay during any period materially faster or slower than the mortgage
loans originated by the Responsible Party generally;
(27) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents
constituting the Mortgage File for each Mortgage Loan have been
delivered to the Trustee. The Responsible Party is in possession of a
complete, true and accurate Mortgage File in compliance with Exhibit A
hereto, except for such documents the originals of which have been
delivered to the Trustee;
(28) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than
a de minimis planned unit development) such condominium or planned unit
development project such Mortgage Loan was originated in accordance
with, and the Mortgaged Property meets the guidelines set forth in the
Responsible Party's Underwriting Guidelines;
(29) Transfer of Mortgage Loans. The Assignment of Mortgage with
respect to each Mortgage Loan is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged
Property is located. The transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Responsible Party are not
subject to the bulk transfer or similar statutory provisions in effect
in any applicable jurisdiction;
(30) Due On Sale. With respect to each Fixed Rate Mortgage Loan,
the Mortgage contains an enforceable provision for the acceleration of
the payment of the unpaid principal balance of the Mortgage Loan in the
event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder, and to the best of
the Responsible Party's knowledge, such provision is enforceable;
(31) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first
Interest Rate Adjustment Date, a related Mortgage Loan may only be
assumed if the party assuming such Mortgage Loan meets certain credit
requirements stated in the Mortgage Loan Documents;
(32) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to
which Monthly Payments are paid or partially paid with funds deposited
in any separate account established by the Responsible Party, the
Mortgagor, or anyone on behalf of the Mortgagor, or paid by any source
other than the Mortgagor nor does it contain any other similar
provisions which may constitute a "buydown" provision. The Mortgage Loan
is not a graduated payment mortgage loan and the Mortgage Loan does not
have a shared appreciation or other contingent interest feature;
(33) Consolidation of Future Advances. Any future advances made
to the Mortgagor prior to the related Cut off Date have been
consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as
having first or second lien priority (as applicable) by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to Xxxxxx
Mae and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan;
(34) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, hurricane, tornado or other casualty so as to affect adversely
the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended and each Mortgaged Property
is in good repair. There have not been any condemnation proceedings with
respect to the Mortgaged Property and the Responsible Party has no
knowledge of any such proceedings in the future;
(35) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by
the Servicer, the Responsible Party, and any prior servicer with respect
to the Mortgage Loan have been in all respects in compliance with
Accepted Servicing Practices, applicable laws and regulations, and have
been in all respects legal and proper and prudent in the mortgage
origination and servicing business. With respect to escrow deposits and
Escrow Payments, all such payments are in the possession of, or under
the control of, the Servicer or the Responsible Party and there exist no
deficiencies in connection therewith for which customary arrangements
for repayment thereof have not been made. All Escrow Payments have been
collected in full compliance with state and federal law and the
provisions of the related Mortgage Note and Mortgage. An escrow of funds
is not prohibited by applicable law and has been established in an
amount sufficient to pay for every item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or Escrow
Payments or other charges or payments due the Responsible Party have
been capitalized under the Mortgage or the Mortgage Note. All Mortgage
Interest Rate adjustments have been made in strict compliance with state
and federal law and the terms of the related Mortgage and Mortgage Note
on the related Interest Rate Adjustment Date. If, pursuant to the terms
of the Mortgage Note, another index was selected for determining the
Mortgage Interest Rate, the same index was used with respect to each
Mortgage Note which required a new index to be selected, and such
selection did not conflict with the terms of the related Mortgage Note.
The Responsible Party executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note
and Mortgage regarding the Mortgage Interest Rate and the Monthly
Payment adjustments. Any interest required to be paid pursuant to state,
federal and local law has been properly paid and credited;
(36) Conversion to Fixed Interest Rate. With respect to
Adjustable Rate Mortgage Loans, the Mortgage Loan is not a Convertible
Mortgage Loan;
(37) Other Insurance Policies. No action, inaction or event has
occurred and no state of facts exists or has existed that has resulted
or will result in the exclusion from, denial of, or defense to coverage
under any applicable, special hazard insurance policy, PMI Policy or
bankruptcy bond, irrespective of the cause of such failure of coverage.
In connection with the placement of any such insurance, no commission,
fee, or other compensation has been or will be received by the
Responsible Party or by any officer, director, or employee of the
Responsible Party or any designee of the Responsible Party or any
corporation in which the Responsible Party or any officer, director, or
employee had a financial interest at the time of placement of such
insurance;
(38) No Violation of Environmental Laws. There exists no
violation of any local, state or federal environmental law, rule or
regulation at the related Mortgaged Property. There is no pending action
or proceeding directly involving the Mortgaged Property in which
compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect to the Mortgage Property; and nothing further remains to be done
to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(39) Servicemembers' Civil Relief Act. The Mortgagor has not
notified the Responsible Party, and the Responsible Party has no
knowledge of any relief requested or allowed to the Mortgagor under the
Servicemembers' Civil Relief Act;
(40) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage
Loan application by a Qualified Appraiser, duly appointed by the related
originator, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan, and the appraisal and appraiser both satisfy the
requirements of Xxxxxx Mae or Xxxxxxx Mac and Title XI of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated;
(41) Disclosure Materials. The Mortgagor has executed a statement
to the effect that the Mortgagor has received all disclosure materials
required by, and the Responsible Party has complied with, all applicable
law with respect to the making of the Mortgage Loans. The Responsible
Party shall maintain such statement in the Mortgage File;
(42) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction or
rehabilitation of a Mortgaged Property or facilitating the trade in or
exchange of a Mortgaged Property;
(43) Value of Mortgaged Property. The Responsible Party has no
knowledge of any circumstances existing that could reasonably be
expected to adversely affect the value or the marketability of any
Mortgaged Property or Mortgage Loan or to cause the Mortgage Loans to
prepay during any period materially faster or slower than similar
mortgage loans held by the Responsible Party generally secured by
properties in the same geographic area as the related Mortgaged
Property;
(44) No Defense to Insurance Coverage. The Responsible Party has
caused or will cause to be performed any and all acts required to
preserve the rights and remedies of the Sponsor in any insurance
policies applicable to the Mortgage Loans including, without limitation,
any necessary notifications of insurers, assignments of policies or
interests therein, and establishments of coinsured, joint loss payee and
mortgagee rights in favor of the Sponsor. No action has been taken or
failed to be taken, no event has occurred and no state of facts exists
or has existed on or prior to the Securitization Closing Date (whether
or not known to the Responsible Party on or prior to such date) which
has resulted or will result in an exclusion from, denial of, or defense
to coverage under any primary mortgage insurance (including, without
limitation, any exclusions, denials or defenses which would limit or
reduce the availability of the timely payment of the full amount of the
loss otherwise due thereunder to the insured) whether arising out of
actions, representations, errors, omissions, negligence, or fraud of the
Responsible Party, the related Mortgagor or any party involved in the
application for such coverage, including the appraisal, plans and
specifications and other exhibits or documents submitted therewith to
the insurer under such insurance policy, or for any other reason under
such coverage, but not including the failure of such insurer to pay by
reason of such insurer's breach of such insurance policy or such
insurer's financial inability to pay;
(45) Escrow Analysis. With respect to each Mortgage, the
Responsible Party or the Servicer has within the last twelve months
(unless such Mortgage was originated within such twelve month period)
analyzed the required Escrow Payments for each Mortgage and adjusted the
amount of such payments so that, assuming all required payments are
timely made, any deficiency will be eliminated on or before the first
anniversary of such analysis, or any overage will be refunded to the
Mortgagor, in accordance with RESPA and any other applicable law;
(46) Prior Servicing. Each Mortgage Loan has been serviced in
strict compliance with Accepted Servicing Practices;
(47) Credit Information. As to each consumer report (as defined
in the Fair Credit Reporting Act, Public Law 91 508) or other credit
information furnished by the Responsible Party to the Sponsor, that
Responsible Party has full right and authority and is not precluded by
law or contract from furnishing such information to the Sponsor and the
Sponsor is not precluded by the terms of the Mortgage Loan Documents
from furnishing the same to any subsequent or prospective purchaser of
such Mortgage. The Responsible Party shall hold the Sponsor harmless
from any and all damages, losses, costs and expenses (including
attorney's fees) arising from disclosure of credit information in
connection with the Sponsor's secondary marketing operations and the
purchase and sale of mortgages. The Responsible Party has or has caused
the related servicer to, for each Mortgage Loan, fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories), on
a monthly basis. This representation and warranty is a Deemed Material
Breach Representation;
(48) Leaseholds. If the Mortgage Loan is secured by a long term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without
the lessor's consent and the acquisition by the holder of the Mortgage
of the rights of the lessee upon foreclosure or assignment in lieu of
foreclosure or provide the holder of the Mortgage with substantially
similar protections; (3) the terms of such lease do not (a) allow the
termination thereof upon the lessee's default without the holder of the
Mortgage being entitled to receive written notice of, and opportunity to
cure, such default, (b) allow the termination of the lease in the event
of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving
proceeds of insurance) under the hazard insurance policy or policies
relating to the Mortgaged Property or (d) permit any increase in rent
other than pre established increases set forth in the lease; (4) the
original term of such lease is not less than 15 years; (5) the term of
such lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in
a jurisdiction in which the use of leasehold estates in transferring
ownership in residential properties is a widely accepted practice;
(49) Prepayment Penalty. The Mortgage Loan is subject to a
Prepayment Penalty as provided in the related Mortgage Note except as
set forth on the related Mortgage Loan Schedule. With respect to each
Mortgage Loan that has a Prepayment Penalty feature, each such
Prepayment Penalty is enforceable and will be enforced by the
Responsible Party for the benefit of the Sponsor, and each Prepayment
Penalty is permitted pursuant to federal, state and local law. Each such
Prepayment Penalty is in an amount not more than the maximum amount
permitted under applicable law and no such Prepayment Penalty may
provide for a term in excess of five (5) years with respect to Mortgage
Loans originated prior to October, 1, 2002. With respect to Mortgage
Loans originated on or after October 1, 2002, the duration of the
Prepayment Penalty period shall not exceed three (3) years from the date
of the Mortgage Note unless the Mortgage Loan was modified to reduce the
Prepayment Penalty period to no more than three (3) years from the date
of such Mortgage Loan and the Mortgagor was notified in writing of such
reduction in Prepayment Penalty period. With respect to any Mortgage
Loan that contains a provision permitting imposition of a penalty upon a
prepayment prior to maturity: (i) the Mortgage Loan provides some
benefit to the Mortgagor (e.g., a rate or fee reduction) in exchange for
accepting such Prepayment Penalty, (ii) the Mortgage Loan's originator
had a written policy of offering the Mortgagor or requiring third-party
brokers to offer the Mortgagor, the option of obtaining a mortgage loan
that did not require payment of such a penalty and (iii) the Prepayment
Penalty was adequately disclosed to the Mortgagor in the mortgage loan
documents pursuant to applicable state, local and federal law;
(50) Predatory Lending Regulations. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable, and no Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is governed
by the Georgia Fair Lending Act. No Mortgage Loan is covered by the Home
Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in
violation of any comparable state or local law. The Mortgaged Property
is not located in a jurisdiction where a breach of this representation
with respect to the related Mortgage Loan may result in additional
assignee liability to the Sponsor, as determined by Sponsor in its
reasonable discretion. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to
the ability of the Mortgagor to repay and the extension of credit which
has no apparent benefit to the Mortgagor, were employed in the
origination of the Mortgage Loan. Each Mortgage Loan is in compliance
with the anti predatory lending eligibility for purchase requirements of
Xxxxxx Mae's Selling Guide;
(51) Single premium Credit Life Insurance Policy. In connection
with the origination of any Mortgage Loan, no proceeds from any Mortgage
Loan were used to finance or acquire a single premium credit life
insurance policy. No Mortgagor was required to purchase any single
premium credit insurance policy (e.g., life, disability, accident,
unemployment, or property insurance product) or debt cancellation
agreement as a condition of obtaining the extension of credit. No
Mortgagor obtained a prepaid single premium credit insurance policy
(e.g., life, disability, accident, unemployment, property insurance
policy) in connection with the origination of the Mortgage Loan; no
proceeds from any Mortgage Loan were used to purchase single premium
credit insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Mortgage Loan;
(52) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan is covered by a paid in full, life of loan, tax service
contract and a paid in full, life of loan, flood certification contract
and each of these contracts is assignable to the Sponsor;
(53) Qualified Mortgage. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(54) Regarding the Mortgagor. The Mortgagor is one or more
natural persons and/or trustees for an Illinois land trust or a trustee
under a "living trust" and such "living trust" is in compliance with
Xxxxxx Mae guidelines for such trusts;
(55) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the
assignment to the Sponsor) have been recorded in the appropriate
jurisdictions wherein such recordation is necessary to perfect the lien
thereof as against creditors of the Responsible Party, or is in the
process of being recorded;
(56) FICO Scores. Each Mortgagor has a non zero FICO score. No
Mortgage Loan has a Mortgagor with a FICO score of less than 500;
(57) Compliance with Anti Money Laundering Laws. The Responsible
Party has complied with all applicable anti money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the "Anti Money Laundering Laws"); the Responsible Party
has established an anti money laundering compliance program as required
by the Anti Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for
purposes of the Anti Money Laundering Laws, including with respect to
the legitimacy of the applicable Mortgagor and the origin of the assets
used by the said Mortgagor to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the
applicable Mortgagor for purposes of the Anti Money Laundering Laws;
(58) Assumability. The Mortgage Loan, by its terms, is not
assumable;
(59) Origination Practices. The Mortgagor was not encouraged or
required to select a Mortgage Loan product offered by the Mortgage
Loan's originator which is a higher cost product designed for less
creditworthy borrowers, unless at the time of the Mortgage Loan's
origination, such Mortgagor did not qualify taking into account such
facts as, without limitation, the Mortgage Loan's requirements and the
Mortgagor's credit history, income, assets and liabilities and
debt-to-income ratios for a lower-cost credit product then offered by
the Mortgage Loan's originator or any affiliate of the Mortgage Loan's
originator. For a Mortgagor who seeks financing through a Mortgage Loan
originator's higher-priced subprime lending channel, the Mortgagor was
directed towards or offered the Mortgage Loan originator's standard
mortgage line if the Mortgagor was able to qualify for one of the
standard products;
(60) Underwriting Methodology. The methodology used in
underwriting the extension of credit for each Mortgage Loan does not
rely on the extent of the Mortgagor's equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related such facts as,
without limitation, the Mortgagor's credit history, income, assets or
liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan's originator made a reasonable
determination that at the time of origination the Mortgagor had the
ability to make timely payments on the Mortgage Loan. Such underwriting
methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make
timely payments on the Mortgage Loan;
(61) Points and Fees. All points and fees related to each
Mortgage Loan were disclosed in writing to the Mortgagor in accordance
with applicable state and federal law and regulations;
(62) Arbitration. With respect to any Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related
Mortgage Note requires the Mortgagor to submit to arbitration to resolve
any dispute arising out of or relating in any way to the Mortgage Loan
transaction; and
(63) Second Lien Mortgage Loans. With respect to each Second Lien
Mortgage Loan:
(a) No Negative Amortization of Related First Lien
Loan. With respect to second lien loans originated
by Responsible Party under an 80/20 program, the
related first lien loan does not permit negative
amortization;
(b) No Default Under First Lien. To the best of
Responsible Party's knowledge, the related first
lien loan is in full force and effect, and there is
no default lien, breach, violation or event which
would permit acceleration existing under such first
lien mortgage or mortgage note, and no event which,
with the passage of time or with notice and the
expiration of any grace or cure period, would
constitute a default, breach, violation or event
which would permit acceleration under such first
lien loan;
(c) Right to Cure First Lien. To the best of
Responsible Party's knowledge, the related first
lien mortgage does not contain a provision which
prohibits such mortgagee from curing any default
under the related first lien mortgage; and
(d) Principal Residence. The related Mortgaged Property
is the Mortgagor's principal residence or second
home.
SCHEDULE III
GSAMP Trust 2006-NC1,
Mortgage Pass-Through Certificates
The Responsible Party hereby makes the representations and
warranties set forth in this Schedule III to the Depositor, Avelo, New Century,
the Securities Administrator, the Master Servicer, the Custodian and the
Trustee, as of the Closing Date.
1. Due Organization and Authority. The Responsible Party is a
corporation duly organized, validly existing and in good standing
under the laws of the state of California and has all licenses
necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each state wherein it
owns or leases any material properties or where a Mortgaged
Property is located, if the laws of such state require licensing
or qualification in order to conduct business of the type
conducted by the Responsible Party, and in any event the
Responsible Party is in compliance with the laws of any such
state to the extent necessary; the Responsible Party has the full
corporate power, authority and legal right to execute and deliver
this Agreement and to perform its obligations hereunder; the
execution, delivery and performance of this Agreement by the
Responsible Party and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this
Agreement and all agreements contemplated hereby have been duly
executed and delivered and constitute the valid, legal, binding
and enforceable obligations of the Responsible Party, regardless
of whether such enforcement is sought in a proceeding in equity
or at law; and all requisite corporate action has been taken by
the Responsible Party to make this Agreement and all agreements
contemplated hereby valid and binding upon the Responsible Party
in accordance with their terms;
2. No Conflicts. Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a
breach of any of the terms, conditions or provisions of the
Responsible Party's charter or by-laws or any legal restriction
or any agreement or instrument to which the Responsible Party is
now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result
in the violation of any law, rule, regulation, order, judgment or
decree to which the Responsible Party or its property is subject,
or result in the creation or imposition of any lien, charge or
encumbrance that would have an adverse effect upon any of its
properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument;
3. No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Responsible
Party, before any court, administrative agency or other tribunal
asserting the invalidity of this Agreement, seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets
of the Responsible Party, or in any material impairment of the
right or ability of the Responsible Party to carry on its
business substantially as now conducted, or in any material
liability on the part of the Responsible Party, or which would
draw into question the validity of this Agreement or of any
action taken or to be taken in connection with the obligations of
the Responsible Party contemplated herein, or which would be
likely to impair materially the ability of the Responsible Party
to perform under the terms of this Agreement;
4. No Consent Required. No consent, approval, authorization or order
of, or registration or filing with, or notice to any court or
governmental agency or body including HUD, the FHA or the VA is
required for the execution, delivery and performance by the
Responsible Party of or compliance by the Responsible Party with
this Agreement or the consummation of the transactions
contemplated by this Agreement, or if required, such approval has
been obtained prior to the Closing Date.
SCHEDULE IV
GSAMP Trust 2007-NC1,
Mortgage Pass-Through Certificates
Representations and Warranties of Avelo Mortgage, L.L.C.
Avelo Mortgage, L.L.C. ("Avelo") hereby makes the representations
and warranties set forth in this Schedule IV to the Depositor, the Securities
Administrator, the Master Servicer, the Trustee and the Custodian, as of the
Closing Date. Capitalized terms used but not otherwise defined in this Schedule
IV shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series.
(a) Due Organization and Authority. Avelo is a Delaware limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware and has all licenses necessary to carry on its business as
now being conducted and is licensed, qualified and in good standing in each
state where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type conducted by
Avelo, and in any event Avelo is in compliance in all material respects with the
laws of any such state to the extent necessary to ensure the enforceability of
the related Mortgage Loan in accordance with the terms of this Pooling and
Servicing Agreement; Avelo has the full power and authority to execute and
deliver this Pooling and Servicing Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Pooling and Servicing
Agreement (including all instruments of transfer to be delivered pursuant to
this Pooling and Servicing Agreement) by Avelo and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Pooling and Servicing Agreement evidences the valid, binding and enforceable
obligation of Avelo, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors; and all
requisite action has been taken by Avelo to make this Pooling and Servicing
Agreement valid and binding upon Avelo in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Pooling and Servicing Agreement are in the
ordinary course of business of Avelo.
(c) No Conflicts. Neither the execution and delivery of this
Pooling and Servicing Agreement, nor the fulfillment of or compliance with the
terms and conditions of this Pooling and Servicing Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of Avelo's
certificate of formation or limited liability company agreement or any legal
restriction or any agreement or instrument to which Avelo is now a party or by
which it is bound, or constitute a default or result in an acceleration under
any of the foregoing, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Avelo or its property is subject, or impair
the ability of the Sponsor to realize on the Mortgage Loans, or impair the value
of the Mortgage Loans.
(d) Ability to Service. Avelo has the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans of the
same type as the Mortgage Loans. Avelo is in good standing to enforce and
service mortgage loans in the jurisdiction wherein the Mortgaged Properties are
located.
(e) Ability to Perform. Avelo does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and every covenant
contained in this Pooling and Servicing Agreement.
(f) No Litigation Pending. There is no action, suit, proceeding
or investigation pending or to the best of Servicer's knowledge threatened
against Avelo, before any court, administrative agency or other tribunal
asserting the invalidity of this Pooling and Servicing Agreement, seeking to
prevent the consummation of any of the transactions contemplated by this Pooling
and Servicing Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of Avelo, or in any
material impairment of the right or ability of Avelo to carry on its business
substantially as now conducted, or in any material liability on the part of
Avelo, or which would draw into question the validity of this Pooling and
Servicing Agreement, or the Mortgage Loans or of any action taken or to be taken
in connection with the obligations of Avelo contemplated herein, or which would
be likely to impair materially the ability of Avelo to perform under the terms
of this Pooling and Servicing Agreement.
(g) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Avelo of or compliance by Avelo with this Pooling
and Servicing Agreement, or the servicing of the Mortgage Loans as evidenced by
the consummation of the transactions contemplated by this Pooling and Servicing
Agreement, or if required, such approval has been obtained prior to the date
hereof.
(h) No Untrue Information.(j) No statement, report or other
document relating to Avelo furnished or to be furnished by Avelo pursuant to
this Pooling and Servicing Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or omits to
state a material fact necessary to make the statements contained therein not
misleading.
SCHEDULE V
GSAMP Trust 2007-NC1,
Mortgage Pass-Through Certificates
Representations and Warranties of New Century Mortgage Corporation
------------------------------------------------------------------
New Century Mortgage Corporation ("New Century") hereby makes the
representations and warranties set forth in this Schedule V to the Depositor,
the Responsible Party, Avelo, the Securities Administrator, the Master Servicer,
the Custodian and the Trustee, as of the Closing Date, or if so specified
herein, as of the Cut-off Date.
(1) New Century is a Delaware limited partnership, validly
existing and in good standing under the laws of Delaware and is duly
authorized and qualified to transact any and all business contemplated
by this Pooling and Servicing Agreement to be conducted by New Century
in any state in which a Mortgaged Property is located 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 ensure its ability to enforce each
Mortgage Loan and to service the Mortgage Loans in accordance with the
terms of this Pooling and Servicing Agreement;
(2) New Century has the full power and authority to service each
Mortgage Loan, and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by this Pooling and
Servicing Agreement and has duly authorized by all necessary action on
the part of New Century the execution, delivery and performance of this
Pooling and Servicing Agreement; and this Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery
thereof by the Depositor, the Responsible Party, Avelo, the Master
Servicer, the Securities Administrator and the Trustee, constitutes a
legal, valid and binding obligation of New Century, enforceable against
New Century in accordance with its terms, except to the extent that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by New Century, the servicing of the Mortgage Loans by New
Century hereunder, the consummation by New Century of any other of the
transactions herein contemplated, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of New
Century and will not (A) result in a breach of any term or provision of
the organizational documents of New Century or (B) conflict with, result
in a breach, violation or acceleration of, or result in a default under,
the terms of any other material agreement or instrument to which New
Century is a party or by which it may be bound, or any statute, order or
regulation applicable to New Century of any court, regulatory body,
administrative agency or governmental body having jurisdiction over New
Century; and New Century is not a party to, bound by, or in breach or
violation of any indenture or other agreement or instrument, or subject
to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to New
Century's knowledge, would in the future materially and adversely
affect, (x) the ability of New Century to perform its obligations under
this Pooling and Servicing Agreement or (y) the business, operations,
financial condition, properties or assets of New Century taken as a
whole;
(4) New Century is an approved seller/servicer for Xxxxxx Xxx and
an approved servicer for Xxxxxxx Mac in good standing;
(5) No litigation is pending against New Century that would
materially and adversely affect the execution, delivery or
enforceability of this Pooling and Servicing Agreement or the ability of
New Century to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by New Century of, or compliance by New Century with, this
Pooling and Servicing Agreement or the consummation by New Century of
the transactions contemplated by this Pooling and Servicing Agreement,
except for such consents, approvals, authorizations or orders, if any,
that have been obtained prior to the Closing Date;
(7) New Century covenants that its computer and other systems
used in servicing the Mortgage Loans operate in a manner such that New
Century can service the Mortgage Loans in accordance with the terms of
this Pooling and Servicing Agreement; and
(8) With respect to each Mortgage Loan, to the extent New Century
serviced such Mortgage Loan and to the extent New Century provided
monthly reports to the three credit repositories, New Century has fully
furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis.
SCHEDULE VI
GSAMP Trust 2007-NC1,
Mortgage Pass-Through Certificates
Representations and Warranties of
Deutsche Bank National Trust Company, a
national banking association, as Custodian
------------------------------------------
Deutsche Bank National Trust Company ("Deutsche Bank") hereby
makes the representations and warranties set forth in this Schedule VI to the
Depositor, the Master Servicer, each Servicer, the Securities Administrator and
the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date:
(1) Deutsche Bank 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 Deutsche Bank 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.
(2) Deutsche Bank 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 Deutsche Bank 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 Deutsche
Bank, enforceable against Deutsche Bank 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.
(3) The execution and delivery of this Agreement by Deutsche
Bank, 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 Deutsche Bank and will
not result in a material breach of any term or provision of the articles
of association or bylaws of Deutsche Bank.
EXHIBIT A
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
[To be added to the Class B-1 and Class B-2 Certificates while they remain
Private Certificates: IF THIS CERTIFICATE IS A PHYSICAL 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 I TO THE AGREEMENT
REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE
144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT J TO THE AGREEMENT
REFERRED TO HEREIN OR A LETTER (THE "NON-RULE 144A INVESTMENT LETTER") IN THE
FORM OF EXHIBIT K 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.
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
CERTIFICATE 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 the Securities
Administrator 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.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT 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 OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
[To be added to the Class B-1 and Class B-2 Certificates: 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, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THE
PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE OR
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 SECURITIES ADMINISTRATOR, THE
DEPOSITOR, THE MASTER SERVICER OR THE SERVICERS TO ANY OBLIGATION IN ADDITION TO
THOSE EXPRESSLY UNDERTAKEN IN THE 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.]
Certificate No. :
Cut-off Date : February 1, 2007
First Distribution Date : March 26, 2007
Initial Certificate Balance of
this Certificate ("Denomination") :
Initial Certificate Balances of
all Certificates of this Class : Class Class Certificate Balance
---------- -------------------------
Class A-1 $ 479,787,000
Class A-2A $ 482,234,000
Class A-2B $ 145,757,000
Class A-2C $ 196,365,000
Class A-2D $ 79,824,000
Class M-1 $ 76,022,000
Class M-2 $ 75,106,000
Class M-3 $ 40,301,000
Class M-4 $ 38,469,000
Class M-5 $ 34,805,000
Class M-6 $ 24,730,000
Class M-7 $ 22,898,000
Class M-8 $ 15,571,000
Class M-9 $ 21,982,000
Class B-1 $ 32,058,000
Class B-2 $ 26,562,000
Class CUSIP/ISIN No.
---------- -------------------------
CUSIP Class A-1 0000XXXX0
Class A-2A 0000XXXX0
Class A-2B 0000XXXX0
Class A-2C 0000XXXX0
Class A-2D 0000XXXX0
Class M-1 0000XXXX0
Class M-2 0000XXXX0
Class M-3 0000XXXX0
Class M-4 0000XXXX0
Class M-5 0000XXXX0
Class M-6 0000XXXX0
Class M-7 0000XXXX0
Class M-8 0000XXXX0
Class M-9 0000XXXX0
Class B-1 0000XXXX0
Class B-2 0000XXXX0
ISIN Class A-1 US3622MGAA63
Class A-2A US3622MGAB47
Class A-2B US3622MGAC20
Class A-2C US3622MGAD03
Class A-2D US3622MGAE85
Class M-1 US3622MGAF50
Class M-2 US3622MGAG34
Class M-3 US3622MGAH17
Class M-4 US3622MGAJ72
Class M-5 US3622MGAK46
Class M-6 US3622MGAL29
Class M-7 US3622MGAM02
Class M-8 US3622MGAN84
Class M-9 US3622MGAP33
Class B-1 US3622MGAT54
Class B-2 US3622MGAU28
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates, Series 2007-NC1
[Class A-] [Class M-] [Class B-]
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 Servicers, the Securities Administrator, the
Custodian, the Sponsor, the Responsible Party or the Trustee or any other party
to the Agreement 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 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 Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), NC Capital Corporation, as responsible
party (the "Responsible Party"), Avelo Mortgage, L.L.C., as a servicer
("Avelo"), New Century Mortgage Corporation, as a servicer ("NCMC", and together
with Avelo, the "Servicers"), Deutsche Bank National Trust Company, as custodian
(the "Custodian"), LaSalle Bank National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"). 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.
***
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By: ____________________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-NC1 Mortgage Pass-Through
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 Securities Administrator 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 Securities Administrator.
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 (or if such day
is not a Business Day, on the immediately preceding Business Day).
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
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 offices 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodian and the Trustee 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.
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 offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, 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 Depositor and the Securities Administrator and any agent of
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 neither
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 repurchase, 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 as provided in the Agreement. The obligations and
responsibilities created by the 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.
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
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.
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 IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J 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 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. 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 SATISFACTORY TO THE SECURITIES ADMINISTRATOR
AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : February 1, 2007
First Distribution Date : March 26, 2007
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : 0000XXXX0
ISIN : US3622MGAV01
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates, Series 2007-NC1
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 Servicers, the Securities Administrator, the Custodian, the
Sponsor, the Responsible Party or the Trustee or any other party to the
Agreement 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 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 Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), NC Capital Corporation, as responsible
party (the "Responsible Party"), Avelo Mortgage, L.L.C., as a servicer
("Avelo"), New Century Mortgage Corporation, as a servicer ("NCMC", and together
with Avelo, the "Servicers"), Deutsche Bank National Trust Company, as custodian
(the "Custodian"), LaSalle Bank National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"). 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
offices designated by the Securities Administrator for such purpose.
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 either case
substantially in 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 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, 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.
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.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By: ____________________________________
Authenticated:
By ___________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-NC1 Mortgage Pass-Through
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 Securities Administrator 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 Securities Administrator.
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 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 (or if such day
is not a Business Day, on the immediately preceding Business Day).
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
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 offices 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodian and the Trustee 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.
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 offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, 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 Depositor and the Securities Administrator and any agent of
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 neither
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 repurchase, 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 as provided in the Agreement. The obligations and
responsibilities created by the 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.
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
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.
EXHIBIT C
[Reserved]
EXHIBIT D-1
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," 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 NOT 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. 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,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : February 1, 2007
First Distribution Date : March 26, 2007
Initial Certificate Balance of
this Certificate ("Denomination") : $50
Initial Certificate Balance of all
Certificates of this Class : $50
CUSIP : 0000XXXX0
ISIN : US3622MGAQ16
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates, Series 2007-NC1
Class R
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 Class R Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicers, the Securities Administrator, the Custodian, the
Sponsor, the Responsible Party or the Trustee or any other party to the
Agreement 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 evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), NC Capital Corporation, as responsible
party (the "Responsible Party"), Avelo Mortgage, L.L.C., as a servicer
("Avelo"), New Century Mortgage Corporation, as a servicer ("NCMC", and together
with Avelo, the "Servicers"), Deutsche Bank National Trust Company, as custodian
(the "Custodian"), LaSalle Bank National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"). 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
Certificate at the offices designated by the Securities Administrator for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Class R 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 nor
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,
the Servicers or the Trust Fund. 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, such attempted
transfer or acquisition shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R 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 Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R 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 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 H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R 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 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
Certificate, (C) not to cause income with respect to the Class R 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
Certificate or to cause the Transfer of the Ownership Interest in this Class R
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 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.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By: __________________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-NC1 Mortgage Pass-Through
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 Securities Administrator 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 Securities Administrator 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
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 offices 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodian and the Trustee 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.
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 offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator and the
Certificate Registrar 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 Securities Administrator and the Depositor and any agent of
the Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
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 repurchase, 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 as provided in the Agreement. The obligations and
responsibilities created by the 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.
ASSIGNMENT
F 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
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.
EXHIBIT D-2
FORM OF CLASS RC 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 NOT 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. 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,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : February 1, 2007
First Distribution Date : March 26, 2007
Initial Certificate Balance of
this Certificate ("Denomination") : $100
Initial Certificate Balances of
all Certificates of this Class : $100
CUSIP : 0000XXXX0
ISIN : US3622MGAR98
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates, Series 2007-NC1
Class RC
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 Class RC Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicers, the Securities Administrator, the Custodian, the
Sponsor, the Responsible Party or the Trustee or any other party to the
Agreement 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 evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), NC Capital Corporation, as responsible
party (the "Responsible Party"), Avelo Mortgage, L.L.C., as a servicer
("Avelo"), New Century Mortgage Corporation, as a servicer ("NCMC", and together
with Avelo, the "Servicers"), Deutsche Bank National Trust Company, as custodian
(the "Custodian"), LaSalle Bank National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"). 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 RC
Certificate at the offices designated by the Securities Administrator for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Class RC 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 nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Master Servicer, the
Securities Administrator, the Servicers or the Trust Fund. 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,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class RC Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class RC Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class RC Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class RC 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 RC 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 H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class RC 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 RC 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 RC Certificate, (C) not to cause income with respect to the Class RC
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 RC Certificate or to cause the Transfer of the Ownership Interest in this
Class RC 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 RC 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.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By: __________________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-NC1 Mortgage Pass-Through
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 Securities Administrator 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 Securities Administrator.
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 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 (or if such day
is not a Business Day, on the immediately preceding Business Day).
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
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 offices 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodian and the Trustee 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.
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 offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, 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 Depositor and the Securities Administrator and any agent of
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 neither
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 repurchase, 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 as provided in the Agreement. The obligations and
responsibilities created by the 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.
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
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.
EXHIBIT D-3
FORM OF 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 NOT 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. 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,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : February 1, 2007
First Distribution Date : March 26, 2007
Initial Certificate Balance of
this Certificate ("Denomination") : $50
Initial Certificate Balances of
all Certificates of this Class : $50
CUSIP : 0000XXXX0
ISIN : US3622MGAS71
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates, Series 2007-NC1
Class RX
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 Class RX Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicers, the Securities Administrator, the Custodian, the
Sponsor, the Responsible Party or the Trustee or any other party to the
Agreement 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 evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), NC Capital Corporation, as responsible
party (the "Responsible Party"), Avelo Mortgage, L.L.C., as a servicer
("Avelo"), New Century Mortgage Corporation, as a servicer ("NCMC", and together
with Avelo, the "Servicers"), Deutsche Bank National Trust Company, as custodian
(the "Custodian"), LaSalle Bank National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"). 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 RX
Certificate at the offices designated by the Securities Administrator for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Class 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 nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Master Servicer, the
Securities Administrator, the Servicers or the Trust Fund. 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,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class RX Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class 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 RX Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class 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 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 H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class 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 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 RX Certificate, (C) not to cause income with respect to the Class 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 RX Certificate or to cause the Transfer of the Ownership Interest in this
Class 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 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.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By: __________________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-NC1 Mortgage Pass-Through
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 Securities Administrator 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 Securities Administrator.
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 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 (or if such day
is not a Business Day, on the immediately preceding Business Day).
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
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 offices 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodian and the Trustee 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.
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 offices 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 Depositor and the Securities Administrator and any agent of
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 neither
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 repurchase, 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 as provided in the Agreement. The obligations and
responsibilities created by the 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.
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
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.
EXHIBIT E
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" 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 IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J 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, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED
UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN
OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT
THAT THE PURCHASE OR 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 SECURITIES
ADMINISTRATOR, THE DEPOSITOR, THE MASTER SERVICER OR THE SERVICERS TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE 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.
Certificate No. : 1
Cut-off Date : February 1, 2007
First Distribution Date : March 26, 2007
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : 0000XXXX0
ISIN: : US3622MGAW83
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates, Series 2007-NC1
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 Class X Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Servicers, the Securities
Administrator, the Custodian, the Sponsor, the Responsible Party 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 evidenced by this Certificate in certain
monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of
the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), NC Capital Corporation, as responsible
party (the "Responsible Party"), Avelo Mortgage, L.L.C., as a servicer
("Avelo"), New Century Mortgage Corporation, as a servicer ("NCMC", and together
with Avelo, the "Servicers"), Deutsche Bank National Trust Company, as custodian
(the "Custodian"), LaSalle Bank National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"). 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 X
Certificate at the offices designated by the Securities Administrator for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Class X Certificate 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 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 nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee, the Master
Servicer, the Securities Administrator, the Depositor, the Servicers or the
Trust Fund, or (ii) if the Class X Certificate has been the subject of an ERISA
Qualifying Underwriting and the transferee is an insurance company, 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 are
covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Class
X 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 Servicers or the Trust Fund, addressed to the Securities
Administrator, to the effect that the purchase or 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 Securities Administrator, the Depositor or the Servicers to any
obligation in addition to those expressly undertaken in the Agreement or to any
liability. 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, such attempted transfer or acquisition shall be
void and of no effect.
Each Holder of this Class X Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class X Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class X Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class X 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 X 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 I to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class X 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 X 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 X
Certificate, (C) not to cause income with respect to the Class X 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 X
Certificate or to cause the Transfer of the Ownership Interest in this Class X
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 X 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.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By: __________________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-NC1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-NC1 Mortgage Pass-Through
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 Securities Administrator 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 Securities Administrator.
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 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 (or if such day
is not a Business Day, on the immediately preceding Business Day).
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
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 offices 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodian and the Trustee 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.
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 offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, 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 Depositor, the Servicers and the Securities Administrator and
any agent of 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 neither 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 repurchase, 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 as provided in the Agreement. The obligations and
responsibilities created by the 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.
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
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.
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Trustee]
[Securities Administrator]
Re: Pooling and Servicing Agreement, dated as of February 1,
2007, among GS Mortgage Securities Corp., as Depositor,
NC Capital Coprporation, as Responsible Party, New
Century Mortgage Corporation, as a Servicer, Avelo
Mortgage, L.L.C., as a Servicer, Deutsche Bank National
Trust Company, as Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as
Securities Administrator and Master Servicer, GSAMP
Trust 2007-NC1, Series 2007-NC1
-------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian, for each Mortgage Loan listed in the Mortgage Loan
Schedule for which it is the Custodian (other than any Mortgage Loan listed in
the attached schedule of exceptions), certifies that 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 each MERS Designated Mortgage 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 Pooling and Servicing 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 collectibility, 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
Certificateholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT G
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Trustee]
[Securities Administrator]
--------------------------
Re: Pooling and Servicing Agreement, dated as of February 1, 2007,
among GS Mortgage Securities Corp., as Depositor, NC Capital
Coprporation, as Responsible Party, New Century Mortgage
Corporation, as a Servicer, Avelo Mortgage, L.L.C., as a
Servicer, Deutsche Bank National Trust Company, as Custodian,
LaSalle Bank National Association, as Trustee, and Xxxxx Fargo
Bank, N.A., as Securities Administrator and Master Servicer,
GSAMP Trust 2007-NC1, Series 2007-NC1
-------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule for which it is the Custodian (other than any
Mortgage Loan paid in full or listed on the attached Document Exception Report)
it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01 of the Pooling and Servicing Agreement, with all
intervening endorsements showing a complete chain of endorsement from
the originator to the last endorsee.
(ii) The original recorded Mortgage or a certified copy thereof.
(iii) Except with respect to each MERS Designated Mortgage Loan,
an executed Assignment of Mortgage endorsed in blank in the form
provided in Section 2.01 of the Pooling and Servicing Agreement; or a
copy of the Assignment of Mortgage (excluding information to be provided
by the recording office).
(iv) Except with respect to each MERS Designated Mortgage Loan,
the original or duplicate original recorded assignment or assignments of
the Mortgage endorsed in blank showing a complete chain of assignment
from the originator to the last endorsee.
(v) The original or duplicate original or certified copy of
lender's title policy and all riders thereto or, any one of an original
title binder, an original preliminary title report or an original title
commitment, or a copy thereof certified by the title company.
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 (1), (2) and (13) of
the Mortgage Loan Schedule and the Data Tape Information 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 Pooling and Servicing 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 collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Custodian has
made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the party
so endorsing, as Noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT H
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2007-NC1,
Mortgage Pass-Through Certificates
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 Residual Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of February 1, 2007 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), NC Capital Corporation, as responsible party (the
"Responsible Party"), Avelo Mortgage, L.L.C., as a servicer ("Avelo"), New
Century Mortgage Corporation, as a servicer ("NCMC", and together with Avelo,
the "Servicers"), Deutsche Bank National Trust Company, as custodian (the
"Custodian"), LaSalle Bank National Association, as trustee (the "Trustee") and
Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"). 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 and the
Securities Administrator.
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.)
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 I 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) and the Agreement.
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:
(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.
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__
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services GSAMP 2007-NC1
Re: GSAMP Trust 2007-NC1 Mortgage Pass-Through Certificates, Series
---------------------------------------------------------------
2007-NC1, Class [__ ]
---------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates (the
"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
EXHIBIT J
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services GSAMP 2007-NC1
Xxxxxxx Xxxxx Mitsui Marine Derivative Products, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
RE GSAMP Trust 2007-NC1 Mortgage Pass-Through Certificates,
-- --------------------------------------------------------
Class [__ ]
-----------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates (the
"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 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 nor using the assets of any such plan or arrangement to
effect such acquisition, or, with respect to a Class B-1, Class B-2 or Class X
Certificate, 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 are
covered 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 Act or that would
render the disposition of the Certificates a violation of Section 5 of the 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 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, we 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 Act.
Our taxpayer identification number is __________. We attach
hereto IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments) or W-9.
We hereby consent to the attached Form being provided to the Swap Provider or
the Cap Provider.
ANNEX 1 TO EXHIBIT J
--------------------
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.
____ 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:_________________________________
-----------------------
(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.
ANNEX 2 TO EXHIBIT J
--------------------
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.
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:_________________________________
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
_____________________
Date
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services GSAMP 2007-NC1
Re: GSAMP Trust 2007-NC1 Mortgage Pass-Through Certificates,
Series 2007-NC1, Class [__]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates (the
"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 are an institutional "accredited investor" (within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Act, and 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 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 nor using the assets of any such plan or arrangement to effect such
acquisition, or, with respect to a Class B-1, Class B-2 or Class X Certificate,
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 are covered under
Sections I and III of PTCE 95-60, (e) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below), (f)
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, or taken any other action which would result in a
violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we will
at our expense provide an opinion of counsel satisfactory to the addressees of
this Certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially the
same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling and
Servicing Agreement.
Our taxpayer identification number is __________. We attach
hereto IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments) or W-9.
We hereby consent to the attached Form being provided to the Swap Provider.
_________________________________
Print Name of Transferee
By: _____________________________
Name:
Title:
Date:___
EXHIBIT L
FORM OF REQUEST FOR RELEASE
(for Custodian)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans held
by you as a Custodian on behalf of the Certificateholders we request the
release, and acknowledge receipt, of the (Custodial File/[specify documents])
for the Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
-------------------------------------
Mortgage Loan Number:
---------------------
Reason for Requesting Documents (check one)
-------------------------------------------
____1. Mortgage Loan Paid in Full. (The Company hereby certifies that all
amounts received in connection therewith have been credited to the
Collection Account as provided in the Pooling and Servicing Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03, 2.07 or 3.28 of the
Pooling and Servicing Agreement. (The Company hereby certifies that the
repurchase price has been credited to the Collection Account as provided
in the Pooling and Servicing Agreement.)
____3. Mortgage Loan Liquidated by _________________. (The Company hereby
certifies that all proceeds of foreclosure, insurance, condemnation or
other liquidation have been finally received and credited to the
Collection Account pursuant to the Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain)._______________________________________________
If box 1, 2 or 3 above is checked, and if all or part of the Custodial File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Mortgage Loan.
If Box 4 or 5 above is checked, upon our return of all of the above documents to
you as a Custodian, please acknowledge your receipt by signing in the space
indicated below, and returning this form, if requested.
NEW CENTURY MORTGAGE CORPORATION
By:______________________________
(authorized signer)
AVELO MORTGAGE, L.L.C.
By:______________________________
(authorized signer)
Issuer:__________________________
Address:_________________________
_________________________________
Date:____________________________
Acknowledged receipt by:
Deutsche Bank National Trust Company,
as Custodian
By: _______________________________________
Name:
Title:
Date:
EXHIBIT M
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each
of the following items, which shall be available for inspection by the Sponsor
and which shall be retained by the applicable Servicer or delivered to and
retained by the Custodian:
(i) the original Mortgage Note (with all applicable riders)
bearing all intervening endorsements endorsed "Pay to the order of
_____________, without recourse" and signed in the name of the last
endorsee. To the extent that there is no room on the face of any Mortgage
Note for an endorsement, the endorsement may be contained on an allonge,
unless the state law does not so allow the Custodian is advised by the
Depositor that state law does not so allow;
(ii) the original of any guarantee executed in connection with the
mortgage note, if provided;
(iii) the original Mortgage (with all applicable riders) with
evidence of recording thereon. If in connection with any Mortgage Loan,
the Responsible Party, cannot deliver or cause to be delivered the
original Mortgage with evidence of recording thereon on or prior to the
Closing Date because of a delay caused by the public recording office
where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains
the original recorded Mortgage, the Responsible Party (to the extent that
it has not previously delivered the same to the Sponsor or the Custodian)
shall deliver or cause to be delivered to the Custodian, a photocopy of
such Mortgage, together with (i) in the case of a delay caused by the
public recording office, an officer's certificate of (or certified by)
the Responsible Party (or certified by the title company, escrow agent,
or closing attorney) stating that such Mortgage has been dispatched to
the appropriate public recording office for recordation and that the
original recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original
recorded Mortgage will be promptly delivered to the Custodian upon
receipt thereof by the Responsible Party; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage;
(iv) the originals of all assumption, modification, consolidation
or extension agreements, (if provided), with evidence of recording
thereon or a certified true copy of such agreement submitted for
recording;
(v) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed in blank
and in recordable form;
(vi) the originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the originator (or
MERS with respect to each MERS Designated Mortgage Loan) to the last
endorsee with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or
has been lost or if such public recording office retains the original
recorded Assignments of Mortgage, the Responsible Party (to the extent
that it has not previously delivered the same to the Sponsor or the
Trustee) shall deliver or cause to be delivered to the Custodian, a
photocopy of such intervening assignment, together with (A) in the case
of a delay caused by the public recording office, an officer's
certificate of (or certified by) the Responsible Party (or certified by
the title company, escrow agent, or closing attorney) stating that such
intervening Assignment of Mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening Assignment of Mortgage or a copy of such intervening
Assignment of Mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Responsible Party; or (B) in the
case of an intervening assignment where a public recording office retains
the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment;
(vii) the original or duplicate lender's title policy and any
riders thereto or, any one of an original title binder, an original or
copy of the preliminary title report or an original or copy of the title
commitment, and if, copies then certified by the title company;
(viii) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided);
(ix) residential loan application;
(x) Mortgage Loan closing statement;
(xi) verification of employment and income, if applicable;
(xii) verification of acceptable evidence of source and amount of
down payment;
(xiii) credit report on Mortgagor;
(xiv) residential appraisal report;
(xv) photograph of the Mortgaged Property;
(xvi) survey of the Mortgaged Property;
(xvii) copy of each instrument necessary to complete
identification of any exception set forth in the exception schedule in
the title policy, i.e., map or plat, restrictions, easements, sewer
agreements, home association declarations, etc.;
(xviii) all required disclosure statements;
(xix) if required in an appraisal, termite report, structural
engineer's report, water potability and septic certification;
(xx) sales contract, if applicable; and
(xxi) original powers of attorney, if applicable, with evidence of
recording thereon, if required.
Evidence of payment of taxes and insurance, insurance claim
files, correspondence, current and historical computerized data files (which
include records of tax receipts and payment history from the date of
origination), and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage loan file and which are
required to document the Mortgage Loan or to service the Mortgage Loan.
EXHIBIT N
[Reserved]
EXHIBIT O
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
Re: GSAMP Trust 2007-NC1 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-NC1, issued pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 2007 (the
"Pooling and Servicing Agreement"), among GS Mortgage Securities
Corp., as Depositor, NC Capital Coprporation, as Responsible
Party, New Century Mortgage Corporation, as a Servicer, Avelo
Mortgage, L.L.C., as a Servicer, Deutsche Bank National Trust
Company, as Custodian, LaSalle Bank National Association, as
Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2007-NC1
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K ("Annual
Report"), and all reports on Form 10-D (collectively with this Annual Report,
the "Reports") required to be filed in respect of period covered by this Annual
Report, of the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
this Annual Report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this Annual Report is included in the Reports;
4. Based on my knowledge and the compliance statements required
in this Annual Report under Item 1123 of Regulation AB, and except as disclosed
in the Reports, each Servicer has fulfilled its obligations under the Pooling
and Servicing Agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria required to be included in this
Annual Report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules 13a-18 and 15d-18 have been included as an exhibit to this Annual Report,
except as otherwise disclosed in this Annual Report. Any material instances of
non-compliance described in such reports have been disclosed in this Annual
Report.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: the Master Servicer, the
Securities Administrator, the Trustee, the Servicers and each Custodian.
Date: _________________________
_________________________________
[Signature]
[Title]
EXHIBIT P
FORM OF SECURITIES ADMINISTRATOR CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2007-NC1 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-NC1, issued pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 2007 (the
"Pooling and Servicing Agreement"), among GS Mortgage Securities
Corp., as Depositor, NC Capital Coprporation, as Responsible
Party, New Century Mortgage Corporation, as a Servicer, Avelo
Mortgage, L.L.C., as a Servicer, Deutsche Bank National Trust
Company, as Custodian, LaSalle Bank National Association, as
Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2007-NC1
The Securities Administrator hereby certifies to the
Depositor, and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 10-D required to be
filed in respect of period covered by the Annual Report (collectively with the
Annual Report, the "Reports"), of the Trust;
2. To my knowledge, the Reports, taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the Annual Report, it being understood that the Securities Administrator is not
responsible for verifying the accuracy or completeness of information in the
Reports (a) provided by Persons other than the Securities Administrator or any
Subcontractor utilized by the Trustee or (b) relating to Persons other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator as to which a Responsible Officer of the Securities Administrator
does not have actual knowledge;
3. To my knowledge, the distribution or servicing information
required to be provided to the Securities Administrator by the Servicers under
the Pooling and Servicing Agreement for inclusion in the Reports is included in
the Reports; and
4. The report on assessment of compliance with servicing criteria
for asset-backed securities applicable to the Securities Administrator and each
Subcontractor utilized by the Securities Administrator and their related
attestation reports on assessment of compliance with servicing criteria
applicable to it required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been
included as an exhibit to the Annual Report. Any material instances of
non-compliance are described in such report and have been disclosed in the
Annual Report.
Date: _________________________________
_______________________________________________
[Signature]
[Title]
EXHIBIT Q-1
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SERVICER TO DEPOSITOR
Re: GSAMP Trust 2007-NC1 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-NC1, issued pursuant to the Pooling and
Servicing Agreement, dated as of February 1, 2007 (the "Pooling
and Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, NC Capital Coprporation, as Responsible Party, New
Century Mortgage Corporation, as a Servicer, Avelo Mortgage,
L.L.C., as a Servicer, Deutsche Bank National Trust Company, as
Custodian, LaSalle Bank National Association, as Trustee, and
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, GSAMP Trust 2007-NC1
The Servicer (the "Servicer"), certifies to the Depositor and the
Securities Administrator, and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) The Servicer has reviewed the servicer compliance statement of the
Servicer provided to the Depositor and the Securities Administrator for
the Trust's fiscal year [___] in accordance with Item 1123 of Regulation
AB (each a "Compliance Statement"), the report on assessment of the
Servicer's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria") provided to the
Depositor and the Securities Administrator for the Trust's fiscal year
[___] 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 (each a "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 related to each Servicing Assessment (each an "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the
Servicer during 200[_] that were delivered or caused to be delivered by
the Servicer pursuant to the Agreement (collectively, the "Servicing
Information");
(2) Based on the Servicer's knowledge, the 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 Servicing
Information;
(3) Based on the Servicer's knowledge, the servicing information required to
be provided to the Securities Administrator by the Servicer pursuant to
the Pooling and Servicing Agreement has been provided to the Securities
Administrator;
(4) Based on the Servicer's knowledge and the compliance review conducted in
preparing Compliance Statement of the Servicer except as disclosed in
such Compliance Statement[(s)], Servicing Assessment[(s)] or Attestation
Report[(s)], the Servicer has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects.
(5) Each Servicing Assessment of the Servicer and its related Attestation
Report required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has
been provided to the Depositor and the Trustee. Any material instances
of non-compliance are described in any such Servicing Assessment or
Attestation Report.
Date: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
EXHIBIT Q-2
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SUBSERVICER TO DEPOSITOR
Re: GSAMP Trust 2007-NC1 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-NC1, issued pursuant to the Pooling and
Servicing Agreement, dated as of February 1, 2007 (the "Pooling
and Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, NC Capital Coprporation, as Responsible Party, New
Century Mortgage Corporation, as a Servicer, Avelo Mortgage,
L.L.C., as a Servicer, Deutsche Bank National Trust Company, as
Custodian, LaSalle Bank National Association, as Trustee, and
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, GSAMP Trust 2007-NC1
The Subservicer (the "Subservicer"), certifies to the Depositor
and the Securities Administrator, and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) The Subservicer has reviewed the servicer compliance statement of the
Subservicer provided to the Depositor and the Securities Administrator
for the Trust's fiscal year [___] in accordance with Item 1123 of
Regulation AB (each a "Compliance Statement"), the report on assessment
of the Subservicer's compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the "Servicing Criteria") provided to the
Depositor and the Securities Administrator for the Trust's fiscal year
[___] 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 (each a "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 related to each Servicing Assessment (each an "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the
Subservicer during 200[_] that were delivered or caused to be delivered
by the Subservicer pursuant to the Agreement (collectively, the
"Servicing Information");
(2) Based on the Subservicer's knowledge, the 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
Servicing Information;
(3) Based on the Subservicer's knowledge, the servicing information required
to be provided to the Securities Administrator by the Subservicer
pursuant to the Pooling and Servicing Agreement has been provided to the
Securities Administrator;
(4) Based on the Subservicer's knowledge and the compliance review conducted
in preparing Compliance Statement of the Subservicer except as disclosed
in such Compliance Statement[(s)], Servicing Assessment[(s)] or
Attestation Report[(s)], the Subservicer has fulfilled its obligations
under the Pooling and Servicing Agreement in all material respects.
(5) Each Servicing Assessment of the Subservicer and its related Attestation
Report required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has
been provided to the Depositor and the Securities Administrator. Any
material instances of non-compliance are described in any such Servicing
Assessment or Attestation Report.
Date: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
EXHIBIT Q-3
FORM OF CERTIFICATION TO BE PROVIDED
BY THE MASTER SERVICER TO DEPOSITOR
Re: GSAMP Trust 2007-NC1 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-NC1, issued pursuant to the Pooling and
Servicing Agreement, dated as of February 1, 2007 (the "Pooling
and Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, NC Capital Coprporation, as Responsible Party, New
Century Mortgage Corporation, as a Servicer, Avelo Mortgage,
L.L.C., as a Servicer, Deutsche Bank National Trust Company, as
Custodian, LaSalle Bank National Association, as Trustee, and
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, GSAMP Trust 2007-NC1
The Master Servicer (the "Servicer"), certifies to the Depositor
and the Securities Administrator, and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) The Servicer has reviewed the servicer compliance statement of the
Servicer provided to the Depositor and the Securities Administrator for
the Trust's fiscal year [___] in accordance with Item 1123 of Regulation
AB (each a "Compliance Statement"), the report on assessment of the
Servicer's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria") provided to the
Depositor and the Securities Administrator for the Trust's fiscal year
[___] 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 (each a "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 related to each Servicing Assessment (each an "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the
Servicer during 200[_] that were delivered or caused to be delivered by
the Servicer pursuant to the Agreement (collectively, the "Servicing
Information");
(2) Based on the Servicer's knowledge, the 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 Servicing
Information;
(3) Based on the Servicer's knowledge, the servicing information required to
be provided to the Securities Administrator by the Servicer pursuant to
the Pooling and Servicing Agreement has been provided to the Securities
Administrator;
(4) Based on the Servicer's knowledge and the compliance review conducted in
preparing Compliance Statement of the Servicer except as disclosed in
such Compliance Statement[(s)], Servicing Assessment[(s)] or Attestation
Report[(s)], the Servicer has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects.
(5) Each Servicing Assessment of the Servicer and its related Attestation
Report required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has
been provided to the Depositor and the Securities Administrator. Any
material instances of non-compliance are described in any such Servicing
Assessment or Attestation Report.
Date: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
EXHIBIT R
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
[NEW CENTURY MORTGAGE CORPORATION
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000]
[AVELO MORTGAGE, L.L.C.
000 X. Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000]
Attn: _________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that LaSalle Bank National Association,
having its principal place of business at 000 X. XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, as Trustee (the "Trustee") pursuant to that Pooling and
Servicing Agreement among GS Mortgage Securities Corp., as depositor (the
"Depositor"), NC Capital Corporation, as responsible party (the "Responsible
Party"), Avelo Mortgage, L.L.C., as a servicer ("Avelo"), New Century Mortgage
Corporation, as a servicer ("NCMC", and together with Avelo, the "Servicers"),
Deutsche Bank National Trust Company, as custodian (the "Custodian") and Xxxxx
Fargo Bank, N.A., as master servicer (the "Master Servicer") and securities
administrator (the "Securities Administrator"), dated as of February 1, 2007
(the "Pooling and Servicing Agreement"), hereby constitutes and appoints [NCMC]
[Avelo], by and through [NCMC's] [Avelo's] officers, the Trustee's true and
lawful Attorney-in-Fact, in the Trustee's name, place and stead and for the
Trustee's benefit, in connection with all mortgage loans serviced by [NCMC]
[Avelo] pursuant to the Pooling and Servicing Agreement for the purpose of
performing all acts and executing all documents in the name of the Trustee as
may be customarily and reasonably necessary and appropriate to effectuate the
following enumerated transactions in respect of any of the mortgages or deeds of
trust (the "Mortgages" and the "Deeds of Trust", respectively) and promissory
notes secured thereby (the "Mortgage Notes") for which the undersigned is acting
as Trustee for various certificateholders (whether the undersigned is named
therein as mortgagee or beneficiary or has become mortgagee by virtue of
endorsement of the Mortgage Note secured by any such Mortgage or Deed of Trust)
and for which [NCMC] [Avelo] is acting as servicer, all subject to the terms of
the Pooling and Servicing Agreement.
This appointment shall apply to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage or Deed of Trust, where
said modification or re-recordings is for the purpose of correcting the
Mortgage or Deed of Trust to conform same to the original intent of the
parties thereto or to correct title errors discovered after such title
insurance was issued and said modification or re-recording, in either
instance, does not adversely affect the lien of the Mortgage or Deed of
Trust as insured.
2. The subordination of the lien of a Mortgage or Deed of Trust to an
easement in favor of a public utility company of a government agency or
unit with powers of eminent domain; this section shall include, without
limitation, the execution of partial satisfactions/releases, partial
reconveyances or the execution or requests to trustees to accomplish
same.
3. The conveyance of the properties to the mortgage insurer, or the closing
of the title to the property to be acquired as real estate owned, or
conveyance of title to real estate owned.
4. The completion of loan assumption agreements.
5. The full satisfaction/release of a Mortgage or Deed of Trust or full
conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage
Note.
6. The assignment of any Mortgage or Deed of Trust and the related Mortgage
Note, in connection with the repurchase of the mortgage loan secured and
evidenced thereby.
7. The full assignment of a Mortgage or Deed of Trust upon payment and
discharge of all sums secured thereby in conjunction with the
refinancing thereof, including, without limitation, the assignment of
the related Mortgage Note.
8. With respect to a Mortgage or Deed of Trust, the foreclosure, the taking
of a deed-in-lieu of foreclosure, or the completion of judicial or
non-judicial foreclosure or termination, cancellation or rescission of
any such foreclosure, including, without limitation, any and all of the
following acts:
(a) the substitution of trustee(s) serving under a Deed of Trust, in
accordance with state law and the Deed of Trust;
(b) the preparation and issuance of statements of breach or
non-performance;
(c) the preparation and filing of notices of default and/or notices
of sale;
(d) the cancellation/rescission of notices of default and/or notices
of sale;
(e) the taking of a deed-in-lieu of foreclosure; and
(f) the preparation and execution of such other documents and
performance of such other actions as may be necessary under the
terms of the Mortgage, Deed of Trust or state law to
expeditiously complete said transactions in paragraphs 8.a.
through 8.e., above.
The undersigned gives said Attorney-in-Fact full power and authority to execute
such instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney as fully as the undersigned might or could do, and hereby does
ratify and confirm to all that said Attorney-in-Fact shall lawfully do or cause
to be done by authority hereof.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of Attorney; and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect and has not
been revoked unless an instrument of revocation has been made in writing by the
undersigned.
Notwithstanding anything contained herein to the contrary, [NCMC] [Avelo] shall
not, without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating [NCMC's] [Avelo's]
representative capacity; provided that [NCMC] [Avelo] shall not be required to
sign this Limited Power of Attorney in order to perform the functions enumerated
herein or (ii) take any action with the intent to cause, or which actually does
cause, the Trustee to be registered to do business in any state.
IN WITNESS WHEREOF, LaSalle Bank National Association as Trustee
pursuant to that Pooling and Servicing Agreement among the Depositor, the
Responsible Party, Avelo, NCMC, the Custodians, the Master Servicer, the
Securities Administrator and the Trustee, dated as of February 1, 2007, GSAMP
Trust 2007-NC1, Mortgage Pass-Through Certificates, Series 2007-NC1, has caused
its corporate seal to be hereto affixed and these presents to be signed and
acknowledged in its name and behalf by _____________________ its duly elected
and authorized Vice President this __ day of _______________, 200__.
LASALLE BANK NATIONAL ASSOCIATION
as Trustee for GSAMP Trust
2007-NC1, Mortgage Pass-Through
Certificates, Series 2007-NC1
By __________________________________
STATE OF _______________
COUNTY OF _____________
On ____________, 200__, before me, the undersigned, a Notary Public in and for
said state, personally appeared __________________, Vice President of
_________________________ as Trustee for GSAMP Trust 2007-NC1, Mortgage
Pass-Through Certificates, Series 2007-NC1, personally known to me to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed that same in his/her authorized capacity, and that by
his/her signature on the instrument the entity upon behalf of which the person
acted and executed the instrument.
WITNESS my hand and official seal.
(SEAL)
____________________________________
Notary Public
My Commission Expires ______________
EXHIBIT S
REPRESENTATIONS AND WARRANTIES AGREEMENT
This REPRESENTATIONS AND WARRANTIES AGREEMENT ("Agreement"),
dated as of February 20, 2007 (the "Closing Date"), is between XXXXXXX XXXXX
MORTGAGE COMPANY ("GSMC" or the "Seller") and GS MORTGAGE SECURITIES CORP. (the
"Depositor" or the "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, GSMC acquired certain mortgage loans (the "Mortgage
Loans") set forth on the mortgage loan schedule attached hereto as Schedule I
(the "Mortgage Loan Schedule") from NC Capital Corporation ("NCCC") pursuant to
that certain Second Flow Amended and Restated Mortgage Loan Purchase and
Warranties Agreement, dated as of May 1, 2006 (the "Purchase Agreement"), by and
between GSMC, as purchaser, and NCCC, as seller.
WHEREAS, pursuant to that certain Pooling and Servicing
Agreement, dated as of February 1, 2007 (the "Pooling and Servicing Agreement"),
among the Depositor, NCCC, as responsible party, New Century Mortgage
Corporation, as a servicer, Avelo Mortgage, L.L.C. , as a servicer, Deutsche
Bank National Trust Company, as custodian, Xxxxx Fargo Bank, National
Association, as master servicer and securities administrator and LaSalle Bank
National Association, as trustee (the "Trustee"), the GSAMP Trust 2007-NC1 shall
issue its Mortgage Pass-Through Certificates, Series 2007-NC1, representing
beneficial ownership interest in a trust, the assets of which include, but are
not limited to, the Mortgage Loans transferred by the Depositor to the Trust
pursuant to the Pooling and Servicing Agreement;
WHEREAS, in connection with the sale of the Mortgage Loans by
GSMC to the Depositor, GSMC shall make various representations and warranties to
the Depositor regarding the Mortgage Loans;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants herein contained, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Defined Terms.
(a) Unless otherwise defined herein, capitalized terms used
herein shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement. In the event of a conflict between any of the defined terms
contained in this Agreement and the Pooling and Servicing Agreement, the
definitions contained in the Pooling and Servicing Agreement shall control.
(b) The following capitalized terms shall have the meanings
assigned to such terms below:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by GSMC in
accordance with the terms of this Agreement.
High Cost Loan: A Mortgage Loan that is (a) covered by the Home
Ownership and Equity Protection Act of 1994, (b) identified, classified or
characterized as "high cost," "threshold," "covered," or "predatory" under any
other applicable state, federal or local law (or a similarly identified,
classified or characterized Mortgage Loan using different terminology under a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(c) categorized as "High Cost" or "Covered" pursuant to Appendix E of the
Standard & Poor's Glossary.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to
be substituted by GSMC for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be paid by GSMC
to the Depositor or its designee in the month of substitution); (ii) have a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than, and not more than one year less than, that of the
Deleted Mortgage Loan (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Periodic Rate Cap and Index); and
(v) comply with each representation and warranty (respecting individual Mortgage
Loans) set forth in Section 2 of this Agreement.
Standard & Poor's Glossary: Version 5.6(b) of the Standard &
Poor's LEVELS(R) Glossary.
Section 2. Representations and Warranties of GSMC.
As to each Mortgage Loan, GSMC hereby makes the representations
and warranties as of the Closing Date.
(a) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity and disclosure
laws, all applicable predatory and abusive lending laws or unfair and deceptive
practices applicable to the Mortgage Loan, including, without limitation, any
provisions related to Prepayment Premiums, have been complied with and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations;
(b) No monthly payment required under the Mortgage Loan is one
month or more delinquent, nor has any payment under the Mortgage Loan been one
month or more Delinquent since the origination of the Mortgage Loan;
(c) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable. No Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act; and
(d) None of the Group I Mortgage Loans has a Prepayment Premium
in excess of three years.
Section 3. Repurchase or Substitution Obligation for Breach of a
Representation or Warranty.
(a) Within sixty (60) days of the earlier of either discovery by
or notice to GSMC of any breach of a representation or warranty which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Depositor therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Depositor therein), GSMC shall
cure such breach in all material respects and, if such breach cannot be cured,
GSMC shall, at the Depositor's option, within sixty (60) calendar days of GSMC's
receipt of request from the Depositor, repurchase such Mortgage Loan at the
Repurchase Price, together with all expenses incurred by the Depositor as a
result of such repurchase. Notwithstanding the above sentence, within sixty (60)
days of the earlier of either discovery by, or notice to, GSMC of any breach of
the representations or warranties set forth in Section 2, GSMC shall repurchase
the affected Mortgage Loan or Mortgage Loans at the Repurchase Price, together
with all expenses incurred by the Depositor as a result of such repurchase. Any
repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions of
this Section 3 shall be accomplished by direct remittance of the Repurchase
Price to the Depositor or its designee in accordance with the Depositor's
instructions.
However, if the breach shall involve a representation or warranty
set forth in Section 2 (other than clauses (a), (c) and (d) of such section) of
this Agreement relating to any Mortgage Loan and GSMC discovers or receives
notice of any such breach within one hundred and twenty (120) days of the
Closing Date, GSMC shall, at the Depositor's option and provided that GSMC has a
Qualified Substitute Mortgage Loan, rather than repurchase such Mortgage Loan as
provided above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and
substitute in its place a Qualified Substitute Mortgage Loan or Mortgage Loans,
provided that any such substitution shall be effected not later than one hundred
and twenty (120) days after the Closing Date. If GSMC has no Qualified
Substitute Mortgage Loan, GSMC shall repurchase the deficient Mortgage Loan. Any
repurchase of a Mortgage Loan or Mortgage Loans pursuant to the foregoing
provisions of this Section 3 shall be accomplished by direct remittance of the
Repurchase Price to the Depositor or its designee in accordance with the
Depositor's instructions.
At the time of repurchase or substitution, the Depositor and GSMC
shall arrange for the reassignment of the Deleted Mortgage Loan to GSMC and the
delivery to GSMC of any documents held by the Trustee relating to the Deleted
Mortgage Loan. In the event of a repurchase or substitution, GSMC shall,
simultaneously with such reassignment, give written notice to the Depositor that
such repurchase or substitution has taken place, amend the applicable Mortgage
Loan Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify a Qualified Substitute
Mortgage Loan and amend the applicable Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, GSMC shall be deemed to have made as to
such Qualified Substitute Mortgage Loan the representations and warranties set
forth in this Agreement except that all such representations and warranties set
forth in this Agreement shall be deemed made as of the date of such
substitution. GSMC shall effect such substitution by delivering to the Trustee
or to such other party as the Depositor may designate in writing for such
Qualified Substitute Mortgage Loan the documents required by the Pooling and
Servicing Agreement, with the Mortgage Note endorsed as required by the Pooling
and Servicing Agreement. No substitution will be made in any calendar month
after the initial Determination Date for such month. GSMC shall remit directly
to the Depositor, or its designee in accordance with the Depositor's
instructions the monthly payment less the Servicing Fee due, if any, on such
Qualified Substitute Mortgage Loan or Mortgage Loans in the month following the
date of such substitution. Monthly payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained by
GSMC. For the month of substitution, distributions to the Depositor shall
include the monthly payment due on any Deleted Mortgage Loan in the month of
substitution, and GSMC shall thereafter be entitled to retain all amounts
subsequently received by GSMC in respect of such Deleted Mortgage Loan.
For any month in which GSMC substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, GSMC shall determine the amount (if
any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by GSMC directly to the Depositor or its designee
in accordance with the Depositor's instructions within two (2) Business Days of
such substitution.
Any cause of action against GSMC relating to or arising out of
the breach of any representations and warranties made in Section 2 shall accrue
as to any Mortgage Loan upon (i) discovery of such breach by the Depositor or
notice thereof by GSMC to the Depositor, (ii) failure by GSMC to cure such
breach, repurchase such Mortgage Loan or substitute a Qualified Substitute
Mortgage Loan as specified above, and (iii) demand upon GSMC by the Depositor
for compliance with this Agreement.
(b) It is understood and agreed that the obligation of GSMC set
forth in Section 3(a) to repurchase or substitute for a Mortgage Loan in breach
of a representation or warranty contained in Section 2 constitutes the sole
remedy of the Depositor or any other person or entity with respect to such
breach.
Section 4. Document Delivery Requirements.
GSMC shall deliver to the Depositor all documents and instruments
required under Section 2.01 of the Pooling and Servicing Agreement with respect
to the Mortgage Loans. In the event any document or instrument required to be
delivered to the Depositor pursuant to Section 2.01 of the Pooling and Servicing
Agreement, including an original or copy of any document submitted for
recordation to the appropriate public recording office, is not so delivered to
the Depositor, and in the event that GSMC does not cure such failure within 30
days of discovery or receipt of written notification of such failure from the
Depositor, GSMC shall, at the Depositor's option, repurchase such Mortgage Loan
at the Repurchase Price, together with all expenses incurred by the Depositor as
a result of such repurchase.
Section 5. Term of Representation and Warranties.
The representations and warranties of GSMC set forth in Section 2
shall inure to the benefit of the Depositor and its successors and assigns until
all amounts payable to Certificateholders under the Pooling and Servicing
Agreement have been paid in full.
Section 6. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and
by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the
same Agreement.
Section 7. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARDS TO CONFLICTS OF LAWS
PRINCIPLES.
Section 8. Severability of Provisions.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 9. Captions.
The captions in this Agreement are for convenience of reference
only and shall not define or limit any of the terms or provisions hereof.
Section 10. Successors and Assigns.
This Agreement shall insure to the benefit of the parties hereto
and their respective successors and assigns. Any entity into which GSMC or the
Depositor may be merged or consolidated shall, without the requirement for any
further writing, be deemed GSMC or the Depositor, respectively, hereunder.
Section 11. Amendments.
This Agreement may be amended from time to time by the parties
hereto.
[Remainder of this Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Sachs Real Estate Funding Corp.,
its General Partner
By: ___________________________________________
Name:
Title:
GS MORTGAGE SECURITIES CORP.
By: ___________________________________________
Name:
Title:
Schedule I
Mortgage Loan Schedule
(Available Upon Request)
EXHIBIT T
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Securities Administrator],
[the Master Servicer] [each Custodian], [each Servicer], [each Subservicer] and
[each Subcontractor] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria." The responsibilities set forth herein
may be amended without amending the Pooling and Servicing Agreement upon mutual
agreement among the applicable party requesting such amendment and the other
parties to the Agreement.
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APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
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Reference Criteria
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General Servicing Considerations
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Policies and procedures are instituted to monitor any
performance or other triggers and events of default in Securities
1122(d)(1)(i) accordance with the transaction agreements. Administrator/Servicer
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If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and Securities
1122(d)(1)(ii) compliance with such servicing activities. Administrator/Servicer
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Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
1122(d)(1)(iii) maintained. N/A
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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 Servicer/Master Servicer
1122(d)(1)(iv) with the terms of the transaction agreements.
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Cash Collection and Administration
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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 Servicer/Master Servicer
1122(d)(2)(i) specified in the transaction agreements.
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Disbursements made via wire transfer on behalf of an Servicer/Securities
obligor or to an investor are made only by authorized Administrator/Master
1122(d)(2)(ii) personnel. Servicer
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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
1122(d)(2)(iii) approved as specified in the transaction agreements. Servicer/Master Servicer
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The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of Servicer/Securities
overcollateralization, are separately maintained Administrator/Master
(e.g., with respect to commingling of cash) as set Servicer
1122(d)(2)(iv) forth in the transaction agreements.
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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 Servicer/Securities
a foreign financial institution that meets the Administrator/Master
requirements of Rule 13k-1(b)(1) of the Securities Servicer
1122(d)(2)(v) Exchange Act.
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Servicer/Securities
Unissued checks are safeguarded so as to prevent Administrator/Master
1122(d)(2)(vi) unauthorized access. Servicer
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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 Servicer/Securities
explanations for reconciling items. These reconciling Administrator/Master
items are resolved within 90 calendar days of their Servicer
original identification, or such other number of days
1122(d)(2)(vii) specified in the transaction agreements.
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Investor Remittances and Reporting
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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 Securities
regulations; and (D) agree with investors' or the Administrator/Servicer/Master
trustee's records as to the total unpaid principal Servicer
balance and number of mortgage loans serviced by the
1122(d)(3)(i) Servicer.
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Amounts due to investors are allocated and remitted in Securities
accordance with timeframes, distribution priority and Administrator/Servicer/Master
1122(d)(3)(ii) other terms set forth in the transaction agreements. Servicer
---------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within
two business days to the Servicer's investor records, Securities
or such other number of days specified in the Administrator/Servicer/Master
1122(d)(3)(iii) transaction agreements. Servicer
---------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports Securities
agree with cancelled checks, or other form of payment, Administrator/Servicer/Master
1122(d)(3)(iv) or custodial bank statements. Servicer
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Pool Asset Administration
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Collateral or security on mortgage loans is
maintained as required by the transaction agreements Custodian/ Securities
1122(d)(4)(i) or related mortgage loan documents. Administrator/Servicer
---------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as Custodian/Securities
1122(d)(4)(ii) required by the transaction agreements Administrator/Servicer
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Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance
with any conditions or requirements in the transaction Servicer/Securities
1122(d)(4)(iii) agreements. Administrator
---------------------------------------------------------------------------------------------------
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 Servicer
1122(d)(4)(iv) with the related mortgage loan documents.
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The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an
1122(d)(4)(v) obligor's unpaid principal balance. Servicer
---------------------------------------------------------------------------------------------------
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 Servicer
1122(d)(4)(vi) documents.
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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 Servicer
1122(d)(4)(vii) the transaction agreements.
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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 Servicer
plans in cases where delinquency is deemed temporary
1122(d)(4)(viii) (e.g., illness or unemployment).
---------------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based
1122(d)(4)(ix) on the related mortgage loan documents. Servicer
---------------------------------------------------------------------------------------------------
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 Servicer
the related mortgage loans, or such other number of
1122(d)(4)(x) days specified in the transaction agreements.
---------------------------------------------------------------------------------------------------
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 Servicer
1122(d)(4)(xi) transaction agreements.
---------------------------------------------------------------------------------------------------
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 Servicer
1122(d)(4)(xii) obligor's error or omission.
---------------------------------------------------------------------------------------------------
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 Servicer
1122(d)(4)(xiii) days specified in the transaction agreements.
---------------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
1122(d)(4)(xiv) transaction agreements. Servicer
---------------------------------------------------------------------------------------------------
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 Securities Administrator
1122(d)(4)(xv) transaction agreements.
---------------------------------------------------------------------------------------------------
EXHIBIT U
ADDITIONAL FORM 10-D DISCLOSURE
-----------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-----------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Performance Master Servicer/
Information Servicer/
Securities Administrator
Any information required by clauses (i)
and (ii) of the second full paragraph of
Section 4.03(a) of the Pooling and
Servicing Agreement
-----------------------------------------------------------------------------------------------
Any information required by Item 1121 Depositor
which is NOT included on the monthly
statement
-----------------------------------------------------------------------------------------------
Item 2: Legal Proceedings (i) All parties to the Agreement (as to
themselves), (ii) the Trustee, the Master
per Item 1117 of Regulation AB Servicer, the Securities Administrator and
each Servicer (to their respective actual
knowledge) as to the issuing entity, (iii)
the Depositor as to the sponsor, and the
Responsible Party or any Regulation AB Item
1100(d)(1) party
-----------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Depositor
Proceeds
-----------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
-----------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Securities Administrator
Security Holders
-----------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets N/A
-----------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Depositor
-----------------------------------------------------------------------------------------------
Information Any party to the Agreement responsible for
Item 8: Other Information disclosure items on Form 8-K
-----------------------------------------------------------------------------------------------
Item 9: Exhibits Securities Administrator (or other
responsible party)
-----------------------------------------------------------------------------------------------
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
-----------------------------------------------------------------------------------------------
EXHIBIT V
ADDITIONAL FORM 10-K DISCLOSURE
-----------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-----------------------------------------------------------------------------------------------
Item 9B: Other Information Any party to the Agreement responsible for
disclosure items on Form 8-K
-----------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Securities Administrator
Schedules Depositor
-----------------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Agreement (as to
themselves), (ii) the Trustee, the Master
Disclosure per Item 1117 of Regulation Servicer, the Depositor, the Securities
AB Administrator and each Servicer (to their
respective actual knowledge) as to the Trust,
(iii) the Depositor as to the sponsor and the
Responsible Party or any 1100(d)(1) party
-----------------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Agreement as to
Disclosure per Item 1119 of Regulation themselves, (ii) the Depositor as to the
AB sponsor, or any derivative provider
-----------------------------------------------------------------------------------------------
Additional Item: N/A
Disclosure per Item 1112(b) of
Regulation AB
-----------------------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Items 1114(b) and
1115(b) of Regulation AB
-----------------------------------------------------------------------------------------------
EXHIBIT W
FORM 8-K DISCLOSURE INFORMATION
-----------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-----------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive The party to this Agreement entering
Agreement into such material definitive agreement
-----------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material Definitive The party to this Agreement requesting
Agreement termination of a material definitive
agreement
-----------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership (i) All parties to the Agreement (as to
themselves), (ii) the Trustee, the
Master Servicer, the Securities
Administrator and each Servicer (to
their respective actual knowledge) as to
the Trust, (iii) the Depositor as to the
sponsor and the Responsible Party or any
1100(d)(1) party
-----------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Securities Administrator/Depositor
Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet
Arrangement
-----------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights of The party requesting such modification
Security Holders
-----------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal Year
-----------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Computational Depositor
Material
-----------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer, Securities Master Servicer, Servicer, Securities
Administrator or Trustee Administrator, Trustee (as to the
Trustee)
-----------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or Depositor/ Securities Administrator
External Support
-----------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Securities Administrator
Distribution
-----------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
-----------------------------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure Depositor
-----------------------------------------------------------------------------------------------
Item 8.01 Depositor
-----------------------------------------------------------------------------------------------
Item 9.01 - Financial Statements and Exhibits Responsible party for
reporting/disclosing the financial
statement or exhibit
-----------------------------------------------------------------------------------------------
EXHIBIT X
INTEREST RATE SWAP AGREEMENT AND INTEREST RATE CAP AGREEMENT
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of February 20, 2007
XXXXXXX XXXXX MITSUI MARINE and GSAMP TRUST 2007-NC1
DERIVATIVE PRODUCTS, L.P.
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than
by payment), such delivery will be made for receipt on the due date in
the manner customary for the relevant obligation unless otherwise
specified in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified
in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified
by the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to
be deducted or withheld from any additional amount paid by X to
Y under this Section 2(d)) promptly upon the earlier of
determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that
the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal
the full amount Y would have received had no such deduction or
withholding been required. However, X will not be required to
pay any additional amount to Y to the extent that it would not
be required to be paid but for:--
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d); or
(B) the failure of a representation made by Y pursuant
to Section 3(f) to be accurate and true unless such
failure would not have occurred but for (I) any action
taken by a taxing authority, or brought in a court of
competent jurisdiction, on or after the date on which a
Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to
this Agreement) or (II) a Change in Tax Law.
(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the
amount of such liability (including any related liability for
interest, but including any related liability for penalties only
if Y has failed to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
o-f the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to
perform its obligations under this Agreement and any obligations it has
under any Credit Support Document to which it is a party and has taken
all necessary action to authorise such execution, delivery and
performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision
of its constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in
lull force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur
as a result of its entering into or performing its obligations under
this Agreement or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support Document to which it is a party or its
ability to perform its obligations under this Agreement or such Credit
Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as
of the date of the information, true, accurate and complete in every
material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(e) is accurate and
true.
(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and
true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to
allow such other party or its Credit Support Provider to make a payment
under this Agreement or any applicable Credit Support Document without
any deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and to
be executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or an Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) required to be made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is
given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
or to give notice of a Termination Event or any agreement or obligation
under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or
performed by the party in accordance with this Agreement if such failure
is not remedied on or before the thirtieth day after notice of such
failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to
be complied with or performed by it in accordance with any
Credit Support Document if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of this
Agreement (in either case other than in accordance with its
terms) prior to the satisfaction of all obligations of such
party under each Transaction to which such Credit Support
Document relates without the written consent of the other party;
or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made
or repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated or
deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to
any applicable notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or an early
termination of, that Specified Transaction, (2) defaults, after giving
effect to any applicable notice requirement or grace period, in making
any payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of, a Specified Transaction
(or such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in part, a
Specified Transaction (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default,
event of default or other similar condition or event (however described)
in respect of such party, any Credit Support Provider of such party or
any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule)
which has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under such
agreements or instruments, before it would otherwise have been due and
payable or (2) a default by such party, such Credit Support Provider or
such Specified Entity (individually or collectively) in making one or
more payments on the due date thereof in an aggregate amount of not less
than the applicable Threshold Amount under such agreements or
instruments (after giving effect to any applicable notice requirement or
grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party
or any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges with
or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or
transfer:--
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit Support
Provider under this Agreement or any Credit Support Document to
which it or its predecessor was a party by operation of law or
pursuant to an agreement reasonably satisfactory to the other
party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by
such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the event
is specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other material
provision of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the party
(or such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action
is taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii)
or 6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount
is required to be paid in respect of such Tax under Section 2(d)(i)(4)
(other than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the
next succeeding Scheduled Payment Date will either (1) be required to
pay an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount has been
deducted or withheld for or on account of any Indemnifiable Tax in
respect of which the other party is not required to pay an additional
amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either
case as a result of a party consolidating or amalgamating with, or
merging with or into, or transferring all or substantially all its
assets to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party ("X"),
any Credit Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity and such action
does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as
the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is
the Affected Party, the Affected Party will, as a condition to its right
to designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of the Affected Transactions
to another of its Offices or Affiliates so that such Termination Event
ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days
after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or
a Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected
with respect to all Affected Transactions within 30 days after
an Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a Tax
Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the case
of a Credit Event Upon Merger or an Additional Termination Event if
there is only one Affected Party may, by not more than 20 days notice to
the other party and provided that the relevant Termination Event is then
continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving details
of the relevant account to which any amount payable to it is to be paid.
In the absence of written confirmation from the source of a quotation
obtained in determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the existence
and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event
of Default) and on the day which is two Local Business Days after the
day on which notice of the amount payable is effective (in the case of
an Early Termination Date which is designated as a result of a
Termination Event). Such amount will be paid together with (to the
extent permitted under applicable law) interest thereon (before as well
as after judgment) in the Termination Currency, from (and including) the
relevant Early Termination Date to (but excluding) the date such amount
is paid, at the Applicable Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A)
the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions
and the Termination Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party over (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-Defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A)
the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions
and the Termination Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it
is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's
Loss in respect of this Agreement. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non-defaulting Party will
pay the absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4),
if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed
to be references to the Affected Party and the party which is
not the Affected Party, respectively, and, if Loss applies and
fewer than all the Transactions are being terminated, Loss shall
be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be payable
equal to (I) the sum of (a) one-half of the difference
between the Settlement Amount of the party with the
higher Settlement Amount ("X") and the Settlement Amount
of the party with the lower Settlement Amount ("Y") and
(b) the Termination Currency Equivalent of the Unpaid
Amounts owing to X less (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss
in respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable
equal to one-half of the difference between the Loss of
the party with the higher Loss ("X") and the Loss of the
party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of
that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will
be subject to such adjustments as are appropriate and permitted by law
to reflect any payments or deliveries made by one party to the other
under this Agreement (and retained by such other party) during the
period from the relevant Early Termination Date to the date for payment
determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate
of loss and not a penalty. Such amount is payable for the loss of
bargain and the loss of protection against future risks and except as
otherwise provided in this Agreement neither party will be entitled to
recover any additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire Agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by
facsimile transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system, which
in each case will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will specify therein or
through another effective means that any such counterpart, telex or
electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York
City, if this Agreement is expressed to be governed by the laws of the
State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the ease of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except so as to avoid duplication, if Section 6(e)(i)(l) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with a respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such determination as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) its relation to any payment, from or through which such
payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early
Termination Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either ease) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
XXXXXXX XXXXX MITSUI MARINE GSAMP TRUST 2007-NC1
DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc. By: Xxxxx Fargo Bank, N.A.,
General Partner not in its individual capacity but solely as
Securities Administrator and Master Servicer,
on behalf of GSAMP Trust 2007-NC1
By: /s/ Xxxxx Rudov_____________________ By: /s/ Xxxxxxxx M.F. Russo____________________
Name: Xxxxx Xxxxx Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President Title: Vice President
Date: 2.20.07 Date: 2.20.07
SCHEDULE
to the
MASTER AGREEMENT
dated as of February 20, 2007
between
XXXXXXX SACHS MITSUI MARINE
DERIVATIVE PRODUCTS, L.P.
a limited partnership organized
under the laws of Delaware
("Party A"),
and
GSAMP Trust 2007-NC1
a trust organized
under the laws of the State of New York
("Party B").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose
of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
(b) "Specified Transaction" shall have the meaning specified in
Section 14 of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) will not
apply to Party A or Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not
apply to Party A or Party B.
(f) The "Cross Default" provisions of Section 5(a)(vi) will not apply
to Party A or Party B.
(g) With respect to Party B only, Section 5(a)(vii)(2) is hereby
amended as follows:
"(2) becomes insolvent or is unable to pay its debts (other than
payments due to holders of its subordinate certificates) or fails
or admits in writing its inability generally to pay its debts
(other than payments to holders of its subordinate certificates)
as they become due"
(h) The "Merger without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will not apply to Party B.
(i) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A or Party B.
(j) The "Automatic Early Termination" provisions of Section 6(a) will
not apply to Party A or Party B.
(k) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(l) "Termination Currency" means U.S. Dollars.
(m) The "Additional Termination Event" provisions of Section 5(b)(v)
will apply as set forth in Part 5(n) hereof.
(n) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A or Party B.
(o) The "Tax Event" provisions of Section 5(b)(ii) will apply to
Party A and will not apply to Party B.
(p) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will not apply to Party B.
Part 2. Tax Representations.
(a) Payer Representations. For purposes of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or
on account of any Tax from any payment (other than interest under
Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by
it to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f)
of this Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement, and (iii) the satisfaction of the agreement of the
other party contained in Section 4(d) of this Agreement, provided
that it shall not be a breach of this representation where
reliance is placed on subclause (ii) and the other party does not
deliver a form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
Party A Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A makes the following representations:
(i) It is a "U.S. payee" within the meaning of Treasury Regulation Section
1.1441-5(b).
(ii) It is a United States person within the meaning of Section 7701(a)(30) of
the Internal Revenue Code of 1986, as amended.
Party B Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party B makes the following representation:
(i) It is a trust created under an agreement governed by New York law.
Part 3. Agreement to Deliver Documents.
For the purpose of Section 4(a), each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents, or certificates to be delivered are:
Party A agrees to complete, execute, and deliver to Party B, United
States Internal Revenue Service Form W-9 or any successor of such form:
(i) on a date which is before the first scheduled payment date under
this Agreement; (ii) promptly upon reasonable demand by Party B; and
(iii) promptly upon learning that any such forms previously provided by
Party A has become obsolete or incorrect.
Party B agrees to complete, execute, and deliver to Party A, United
States Internal Revenue Service Form W-9 or any successor of such forms:
(i) on a date which is before the first scheduled payment date under
this Agreement; (ii) promptly upon reasonable demand by Party A; and
(iii) promptly upon learning that any such forms previously provided by
Party B has become obsolete or incorrect.
(b) Other documents to be delivered are:
Covered by
Party required to Form/Document/ Date by which Section 3(d)
deliver document Certificate to be delivered Representation
----------------- -------------------------- ------------- ------------
Party A Power of Attorney with At execution of this Yes
respect to Party A Agreement
Party A Support Agreement dated as At execution of this Yes
of October 8, 1993 among Agreement
Party A, Mitsui Marine and
Fire Insurance Co., Ltd.
("Mitsui Marine"), and The
Xxxxxxx Xxxxx Group, Inc.
("Goldman Group") (the
"Support Agreement")
accompanied by a
certificate of an
authorized officer of
Party A, certifying that
it is a true, complete and
correct copy of the
original Support Agreement
Party A Guaranty dated as of At execution of this Yes
December 20, 2000 between Agreement
Mitsui Marine and Xxxxxxx
Sachs Group (the
"Guaranty"), accompanied
by a certificate
certifying that it is a
true, complete and correct
copy of the original
Guaranty
Party A Most recently prepared As soon as possible Yes
annual balance sheet of following request of
Party A Party B
Party A Legal opinions with respect At execution of this No
to Party A Agreement
Party B Incumbency certificate or At execution of this Yes
other documents evidencing Agreement
the authority, incumbency
and specimen signature of
each person executing this
Agreement, any Credit
Support Document or any
Confirmation, as the case
may be.
Party B Servicer Remittance Reports Promptly upon Yes
becoming available
Party B Legal opinion with respect At execution of this No
to Party B Agreement
Party B An executed copy of the Within 30 days after No
Pooling and Servicing the date of this
Agreement dated as of Agreement
February 1, 2007, (the
"Pooling and Servicing
Agreement") among GS
Mortgage Securities Corp.,
as depositor, Avelo
Mortgage, L.L.C., as a
servicer, NC Capital
Corporation, as
responsible party,
Deutsche Bank National
Trust Company, as a
custodian, Xxxxx Fargo
Bank, National
Association, as securities
administrator and as
master servicer, and
LaSalle Bank National
Association, as trustee.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a): Address
for notices or communications to Party A:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Swap Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging
System Details: None
With a copy to:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Treasury Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging
System Details: None
Addresses for Notices. For the purpose of Section 12(a): Address for notices or
communications to Party B:
Address: Xxxxx Fargo Bank, National
Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAMP Trust 2007-NC1
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not Applicable
Party B appoints as its Process Agent: Not Applicable
With a copy to:
Address: Standard & Poor's Ratings Services,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Residential Mortgage Surveillance Group
Facsimile: 212-438-2652
With a copy to:
Address: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Backed Securities
Group
Facsimile:
000-000-0000
(c) Offices; Multibranch Parties.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(d) Calculation Agent. The Calculation Agent is Party A.
(e) Credit Support Document. Details of any Credit Support Document.
(i) With respect to Party A, (A) the Support Agreement, (B) the
Guaranty and (C) any Credit Support Annex that may be entered into
in connection with any of the events described in Part 5(n)(iii)
of this Schedule.
(ii) With respect to Party B, not applicable.
Each Credit Support Document is incorporated by reference into and
constitutes part of this Agreement and each Confirmation as if set
forth in full in this Agreement or such Confirmation.
(f) Credit Support Provider.
(i) Credit Support Provider means in relation to Party A, Goldman
Group and Mitsui Marine; provided that all defaults by,
misrepresentations of, actions or failures to act by, or
circumstances or events applicable to a "Credit Support Provider"
as such term is used in this Agreement shall be deemed in all such
circumstances to refer to defaults simultaneously in effect with
respect to both Goldman Group and Mitsui Marine,
misrepresentations made by both Goldman Group and Mitsui Marine,
actions or failures to act simultaneously by both Goldman Group
and Mitsui Marine, and circumstances or events simultaneously
applicable to both Goldman Group and Mitsui Marine.
(ii) Credit Support Provider means in relation to Party B, Not
Applicable.
(g) Governing Law. This Agreement and each Confirmation will be
governed by, and construed and enforced in accordance with, the substantive law
of the State of New York, without reference to its choice of law doctrine.
(h) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in
the second line of subparagraph (i) thereof the word "non-"; and (ii) deleting
the final paragraph thereof.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will apply
to Transactions with effect from the date of this Agreement. Notwithstanding
anything to the contrary in Section 2(c), amounts that are payable with respect
to the same Calculation Period shall be netted, as provided in Section 2(c),
even if such amounts are not due on the same Payment Date.
(j) "Affiliate" will have the meaning specified in Section 14;
provided, however, Party B shall be deemed to have no Affiliates.
Part 5. Other Provisions.
(a) Accuracy of Specified Information. With respect to Party A,
Section 3(d) is hereby amended by adding in the third line thereof after the
word "respect" and before the period the words "or, in the case of audited or
unaudited financial statements or balance sheets, a fair presentation of the
financial condition of the relevant person."
(b) Transfer. Section 7 is hereby amended by:
(i) adding in the third line thereof after the word "party,"
the words "which consent shall not be unreasonably
withheld or delayed" and adding in the third line thereof
after the clause "that: -" the words "provided that the
Rating Agency Condition is satisfied in all events
(including in the event of a transfer under Section
6(b)(ii));
(ii) adding in the second line of subparagraph (a) thereof
after the words "assets to," the words "or
reorganization, incorporation, reincorporation,
reconstitution, or reformation into or as";
(iii) deleting at the end of subparagraph (a) thereof the word
"and";
(iv) deleting in the second line of subparagraph (b) thereof
the period and replacing it with "; and";
(v) adding after subparagraph (b) thereof the following
subparagraph (c):
(c) in addition to, and not in lieu of, the
preceding transfer rights, Party A may, without recourse
by Party B or Party A's transferee to or against Party A,
transfer this Agreement, in whole, but not in part, to
any of Party A's Affiliates or any of the Affiliates of
Goldman Group pursuant to documentation prepared by Party
A, provided that:
(i) either (A) such transferee must have a
long-term, unsecured, unsubordinated
debt obligation ratings or financial
program ratings (or other similar
ratings) by S&P which are equal to or
greater than the comparable long-term,
unsecured, unsubordinated debt
obligation ratings or financial
program ratings (or other similar
ratings) of Party A immediately prior
to such transfer, or (B) the
obligations transferred to such
transferee must be guaranteed by Party
A pursuant to a guaranty in
substantially the form of the Guaranty
of the Credit Support Provider or
other agreement or instrument
consented to by Party B or other
agreement or instrument mutually
agreed upon by both parties and
satisfactory to S&P;
(ii) the transferee will not, as a result
of such transfer, be required to
withhold or deduct on account of a Tax
under Section 2(d)(i) on the next
succeeding Scheduled Payment Date an
amount in excess of that which Party A
would have been required to so
withhold or deduct on the next
succeeding Scheduled Payment Date in
the absence of such transfer unless
the transferee will be required to
make payments of additional amounts
pursuant to Section 2(d)(i)(4) in
respect of such excess;
(iii) an Event of Default or a Termination
Event does not occur as a result of
such transfer;
(iv) the Rating Agency Condition is
satisfied. With respect to the results
described in subclause (ii) above,
Party A will cause the transferee to
make, and Party B will make, such
reasonable Payer Tax Representations
and Payee Tax Representations as may
be mutually agreed upon by the
transferee and Party B in order to
permit such parties to determine that
such results will not occur upon or
after the transfer;
(v) Party A agrees to transfer only to a
transferee in a jurisdiction, which it
is aware is a "netting" jurisdiction,
that is in which, by opinion of
counsel published by ISDA, netting
under this Agreement shall be
enforceable; and
(vi) Party A will be responsible for any
costs or expenses incurred in
connection with such transfer.
(vi) adding at the end of Section 7 the following sentence:
Except as may otherwise be stated in Section 7(c) hereof or in
the documentation evidencing a transfer, a transfer of all of the
obligations of Party A made in compliance with this Section will
constitute an acceptance and assumption of such obligations (and
any related interests so transferred) by the transferee, a
novation of the transferee in place of Party A with respect to
such obligations (and any related interests so transferred), and
a release and discharge by Party B of Party A from, and an
agreement by Party B not to make any claim for payment,
liability, or otherwise against Party A with respect to, such
obligations from and after the effective date of the transfer.
(c) Set-Off. Notwithstanding the last sentence of the first paragraph of
Section 6(e) of this Agreement, but without affecting the provisions of this
Agreement requiring the calculation of certain net payment amounts as a result
of an Event of Default or Termination Event or otherwise, all payments under
this Agreement will be made without setoff or counterclaim.
(d) Reference Market-makers. The definition of "Reference Market-makers"
in Section 14 is hereby amended by adding in the fourth line thereof after the
word "credit" the words "or to enter into transactions similar in nature to
Transactions".
(e) Procedures for Entering into Transactions. On or promptly following
the Trade Date or other transaction date of each Transaction, Party A will send
to Party B a Confirmation. Party B will promptly thereafter request any
correction of such Confirmation (indicating how it believes the terms of such
Confirmation should be correctly stated and such other terms which should be
added to or deleted from such Confirmation to make it correct).
(f) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits
or expectations of the parties to this Agreement; provided, however, that this
severability provision shall not be applicable if any provision of Section 2, 5,
6, or 13 (or any definition or provision in Section 14 to the extent it relates
to, or is used in or in connection with any such Section) shall be so held to be
invalid or unenforceable.
(g) Waiver of Right to Trial by Jury. Each party hereby irrevocably
waives, to the fullest extent permitted by applicable law, any right it may have
to trial by jury in respect of any suit, action or proceeding relating to this
Agreement.
(h) Credit Support Default. Subparagraph (3) of Section 5(a)(iii) is
hereby amended by adding in the second line thereof after the word "Document"
and before the semicolon the words "(or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf)."
(i) Additional Representations. Section 3 is hereby amended by adding
the following additional subsections:
(i) No Agency. With respect to Party A, it is entering into this
Agreement and each Transaction as principal (and not as agent or
in any other capacity, fiduciary or otherwise) and, with respect
to Party B, Xxxxx Fargo Bank, National Association is entering
into the Agreement in its capacity as Securities Administrator
and Master Servicer of Party B.
(ii) Eligible Contract Participant. It is an "eligible contract
participant" as defined in the U.S. Commodity Exchange Act.
(iii) Non-Reliance. Party A is acting for its own account and
Xxxxx Fargo Bank, National Association is acting as Securities
Administrator and Master Servicer for Party B. It has made its
own independent decisions to enter into that Transaction and as
to whether that Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such advisers as it
has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanations related to the terms
and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received from the
other party shall be deemed to be an assurance or guarantee as to
the expected results of that Transaction.
(iv) Assessment and Understanding; Status of Parties. It is
capable of assessing the merits of and understanding (on its own
behalf or through independent professional advice), and
understands and accepts, the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes, the
risks of that Transaction. The other party is not acting as a
fiduciary for or an adviser to it in respect of that Transaction.
(j) RESERVED.
(k) Regarding Party A. Party B acknowledges and agrees that Party A has
had and will have no involvement in and, accordingly, accepts no responsibility
for: (i) the establishment, structure, or choice of assets of Party B; (ii) the
selection of any person performing services for or acting on behalf of Party B;
(iii) the selection of Party A as the counterparty; (iv) the terms of the
Certificates; (v) the preparation of or passing on the disclosure and other
information contained in any prospectus or prospectus supplement for the
Certificates, the Pooling and Servicing Agreement, or any other agreements or
documents used by Party B or any other party in connection with the marketing
and sale of the Certificates; (vi) the ongoing operations and administration of
Party B, including the furnishing of any information to Party B which is not
specifically required under this Agreement; or (vii) any other aspect of Party
B's existence except for those matters specifically identified in this
Agreement.
(l) No Recourse. The Certificates represent an equity interest in Party
B only and the foregoing does not represent an interest in or obligation of
Party A, and no recourse may be had by the holders of the Certificates against
Party A or its assets with respect to the Notes and the Certificates and/or this
Agreement.
(m) Indemnifiable Tax. Party A agrees that Party B will not be required
to pay any additional amounts pursuant to Section 2(d)(i)(4) of the Agreement in
respect of an Indemnifiable Tax. If Party A is required to pay additional
amounts in respect of a withholding tax pursuant to Section 2(d)(i)(4) of this
Agreement, Party A may transfer this Agreement, subject to satisfaction of the
Rating Agency Condition, as provided in Section 6(b)(ii) of this Agreement and
such transfer shall not require the consent of Party B to the extent it is in
conformance with the provisions of Section 7(c), as amended herein.
(n) Additional Termination Events.
(i) It shall be an Additional Termination Event, with Party A
as the sole Affected Party, if the Depositor determines
at any time that it is required for purposes of
compliance with Item 1115(b) of Regulation AB to provide
any financial or other data relating to Party A and,
within 15 calendar days of such determination, Party A
fails to assign this Agreement and all of its obligations
hereunder to a substitute counterparty that (A) has
agreed to provide any financial or other data required
under Regulation AB, (B) has agreed to provide
indemnifications relating to such financial or other data
acceptable to the Depositor, (C) satisfies the Rating
Agency Condition and (D) is approved by the Depositor
(which approval shall not be unreasonably withheld). For
the avoidance of doubt, unless otherwise specified in
this Agreement, Party A shall be under no obligation to
provide any such financial or other data, whether in
connection with this Termination Event or otherwise. For
purposes of this Termination Event, (i) "Commission"
shall mean the Securities and Exchange Commission, (ii)
"Depositor" shall mean GS Mortgage Securities Corp., and
(iii) "Regulation AB" shall mean the Asset Backed
Securities Regulation AB, 17 C.F.R.
ss.ss.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.
(ii) It shall also be an Additional Termination Event if (i)
an Optional Termination Date is designated pursuant to
the Pooling and Servicing Agreement (a "Redemption
Termination") and (ii) there remains no more than 5
Business Days prior to the proposed Redemption Date. In
the case of a Redemption Termination, both Party A and
Party B shall have the right to cause a termination of
this Agreement and, for purposes of Section 6(e)(ii) of
this Agreement, Party B shall be the sole Affected Party.
Following notification from the Securities Administrator
and Master Servicer that it has received a redemption
notice, Party A shall provide the Securities
Administrator and Master Servicer from time to time, upon
request, with good faith estimates of the amount that
would be payable under Section 6(e)(ii) in the event of
such Redemption Termination. Any termination payment
payable in respect of such Additional Termination Event
shall be paid on the relevant Redemption Date.
(iii) (I) It shall also be an Additional Termination Event,
with Party A the sole Affected Party (except as expressly
provided herein) if Party A, a replacement counterparty,
or a person or an entity that guarantees the obligations
of such replacement counterparty, as the case may be, has
a rating that does not satisfy the Required Hedge
Counterparty Rating (but is at least "BBB-" or "A-3" (if
applicable) by S&P and at least A1 by Moody's) and none
of the following events has occurred:
(A) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A
or such replacement counterparty, as the case
may be, transfers this Agreement, in whole,
but not in part, to a counterparty that
satisfies the Required Hedge Counterparty
Rating, subject to satisfaction of the Rating
Agency Condition;
(B) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A
or such replacement counterparty, as the case
may be, collateralizes its Exposure to Party
B pursuant to an ISDA Credit Support Annex,
subject to satisfaction of the Rating Agency
Condition, as applicable; provided that such
ISDA Credit Support Annex shall be made a
Credit Support Document for Party A pursuant
to an amendment of this Agreement in a form
acceptable to the Securities Administrator
and Master Servicer which amendment shall
also be subject to satisfaction of Rating
Agency Condition;
(C) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, the
obligations of Party A or such replacement
counterparty, as the case may be, under this
Agreement are guaranteed by a person or
entity that satisfies the Required Hedge
Counterparty Rating, subject to satisfaction
of the Rating Agency Condition; or
(D) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A
or such replacement counterparty, as the case
may be, takes such other steps, if any, to
enable the Issuer to satisfy the Rating
Agency Condition.
(II) It shall also be an Additional Termination
Event, with Party A as the sole Affected Party
(except as expressly provided herein) if Party A, a
replacement counterparty, or a person or an entity
that guarantees the obligations of such replacement
counterparty, as the case may be, has a rating
withdrawn or reduced below "BBB-" or "A-3" (if
applicable) by S&P or below "A1" by Moody's and
within 7 days thereafter, Party A or such
replacement counterparty, as the case may be, while
collateralizing its Exposure to Party B, fails to
transfer this Agreement, in whole, but not in part,
to a counterparty that satisfies the Required Hedge
Counterparty Rating, subject to satisfaction of the
Rating Agency Condition.
Upon downgrade of Party A below the Required Hedge
Counterparty Rating or below "BBB-" or "A-3" (if applicable)
by S&P or below "A1" by Moody's, or if S&P or Moody's
withdraws its ratings for any reason, Party A will promptly
give notice of the circumstances to Party B and to the rating
agencies that at the time are providing ratings for the
Certificates.
Party B shall be entitled to (A)(1) in case of an Additional
Termination Event described in Part 5(n)(iii)(I), designate a
date that is not earlier than the expiration of the 30 day
period referred to in Part 5(n)(iii)(I) as an Early
Termination Date in respect of all transactions under this
Agreement by giving notice to Party A at least 10 days prior
to the date so designated (which notice may be given prior to
the expiration of such 30 day period) and (2) in case of an
Additional Termination Event described in this Part
5(n)(iii)(II), immediately designate an Early Termination
Date, in respect of all transactions under this Agreement by
giving notice to Party A and (B) no later than the respective
dates specified in clause (A)(1) and (A)(2), transfer the
rights and obligations of Party A hereunder to a counterparty
that satisfies the Required Hedge Counterparty Rating,
subject to satisfaction of the Rating Agency Condition.
In connection with a transfer of this Agreement as described
in this Part 5(n)(iii), Party A shall, at its sole cost and
expense, use commercially reasonable efforts to seek a
replacement counterparty. In addition, if Party A pursues any
of the alternative actions contemplated in paragraphs (A),
(B), (C) and (D) of Part 5(n)(iii)(I) above, it shall do so
at its sole cost and expense.
As used herein, "Required Hedge Counterparty Rating" means,
with respect to Party A, a replacement counterparty or entity
guaranteeing the obligations of such replacement
counterparty, (x) either (i) if such counterparty or entity
has only a long-term rating by Moody's, a long-term senior,
unsecured debt obligation rating, financial program rating or
other similar rating (as the case may be, the "Long-Term
rating") of at least "Aa3" by Moody's and if rated "Aa3" by
Xxxxx'x is not on negative credit watch by Moody's or (ii) if
such counterparty or entity has a Long-Term Rating and a
short-term rating by Moody's, a Long-Term Rating of at least
"A1" by Moody's and a short-term rating of "P-1" by Moody's
and, in each case, such rating is not on negative credit
watch by Moody's and (y) (i) a short-term rating of at least
"A-1" by S&P or (ii) if such counterparty or entity does not
have a short-term rating by S&P, a Long-Term Rating of at
least "A+" by S&P.
For the purposes of determining the Settlement Amount with
respect to the designation of an Early Termination Date
arising from the Additional Termination Event specified in
Part 5(n)(iii), both Party A and Party B shall be Affected
Parties. If the Settlement Amount calculated pursuant to this
subclause (iii) is an amount owing by Party B to Party A,
then such payment shall be a Swap Termination Payment payable
by Party B to Party A in accordance with the priority of
payments described in the Pooling and Servicing Agreement;
provided, however, that (a) if Party A does not after the
exercise of commercially reasonable efforts cause any of the
conditions specified in Part 5(n)(iii)(I)(A) to (D) to be
satisfied, Party B shall use commercially reasonable efforts
to enter into a replacement Transaction(s) with a
counterparty acceptable to the Rating Agencies, in respect of
the Affected Transaction(s) relating to the Additional
Termination Event; and (b) where multiple quotations are
available such replacement Transaction(s) shall be entered
into based on the quoted price(s) that would result in the
largest payment made to Party B by the replacement
counterparty (it being understood that Party A may be
permitted to actively solicit and obtain such quotations on
behalf of Party B); and (c) to the extent that payments are
received by Party B as a result of entering into such
replacement Transaction(s), then Party A shall have first
priority as to such payments versus all other creditors of
Party B and Party B shall pay the lesser of (x) the amount so
received and (y) the Swap Termination Payment to the extent
not already paid by Party B over to Party A immediately upon
receipt.
As used herein, "Exposure" means, as of any date of
determination, the amount, if any, that would be payable to
Party B by Party A under this Agreement if an Early
Termination Date were to occur as of such date of
determination as a result of a Termination Event, Party A
were the sole Affected Party, all Transactions were
terminated in connection with such Early Termination Date and
(solely for purposes of determining Exposure) the amount of
such payment were calculated using Market Quotation.
For any Additional Termination Event, the date that Party A or
Party B, as the case may be, specifies in its notice of its
election to terminate shall be the Early Termination Date for the
Transactions; provided, that solely in the case of an Additional
Termination Event described in subclause (ii) above, the Early
Termination Date shall be no earlier than the 3rd Business Day
preceding the Redemption Date and no later than the Redemption
Date.
(o) Indemnifiable Tax. The definition of "Indemnifiable Tax" in Section
14 is hereby amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also means any
Tax imposed in respect of a payment under this Agreement by
reason of a Change in Tax Law by a government or taxing authority
of a Relevant Jurisdiction of the party making such payment,
unless the other party is incorporated, organized, managed and
controlled, or considered to have its seat in such jurisdiction,
or is acting for purposes of this Agreement through a branch or
office located in such jurisdiction.
(p) Limited Recourse; Non-petition. Party A agrees that the obligations
of Party B hereunder are limited recourse obligations payable solely from the
assets of Party B, and due to the extent funds are available for the payment
thereof in accordance with the priority of payments described in the Pooling and
Servicing Agreement. Party A agrees that it will not, prior to the date which is
at least one year and one day or, if longer, the then applicable preference
period following the payment in full of all the Certificates issued pursuant to
the Pooling and Servicing Agreement and the expiration of all applicable
preference periods under Title 11 of the United States Code or other applicable
law relating to any such payment, acquiesce, petition or otherwise invoke or
cause Party B to invoke the process of any governmental authority for the
purpose of commencing or sustaining a case (whether voluntary or involuntary)
against Party B under any bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of Party B or any substantial part of its property or ordering
the winding-up or liquidation of the affairs of Party B. Nothing contained
herein shall prohibit Party A from submitting a claim, or proof of claim, in any
proceeding or process instituted by or against Party B by any person other than
Party A or its Affiliates. Party A and Party B agree that this Part 5(p) shall
survive the termination of this Agreement for any reason whatsoever.
(q) Securities Administrator and Master Servicer Capacity. It is
expressly understood and agreed by the parties hereto that insofar as this
Agreement is executed by the Securities Administrator and Master Servicer (i)
this Agreement is executed and delivered by Xxxxx Fargo Bank, National
Association, not in its individual capacity but solely as Securities
Administrator and Master Servicer under the Pooling and Servicing Agreement in
the exercise of the powers and authority conferred to and vested in it
thereunder and (ii) under no circumstances shall Xxxxx Fargo Bank, National
Association in its individual capacity be personally liable for the payment of
any indebtedness or expenses or be personally liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken under
this Agreement on behalf of Party B or any assignee.
(r) Additional Party A Covenant. Following a failure to satisfy the
Required Hedge Counterparty Rating in accordance with Part 5(n)(iii)(I), Party A
shall take the actions described in accordance with Part 5(n)(iii)(I)(A), (B),
(C) or (D). Following a failure to satisfy the rating requirements set forth in
Part 5(n)(iii)(II), Party A shall take the actions described in accordance with
Part 5(n)(iii)(II).
(s) Agreements: Furnish Specified Information. Section 4(a) is hereby
amended by adding at the end thereof the following paragraph:
Notwithstanding the foregoing provisions of this Section 4(a),
the parties agree that, pursuant to the terms of the Power of
Attorney with respect to Party A referred to in Part 3(b) of this
Schedule, any one or more of the officers of Party A's general
partner who has been designated as an agent and attorney in fact
of Party A will so deliver to Party B or such government or
taxing authority the specified or requested forms, documents, or
certificates.
(t) Confirmations. Transactions shall be promptly confirmed by the
parties by Confirmations exchanged by mail, telex, facsimile or other electronic
means. Where a Transaction is confirmed by means of an electronic messaging
system that the parties have elected to use to confirm such Transaction (i) such
confirmation will constitute a "Confirmation" as referred to in this Agreement
even where not so specified in the confirmation and (ii) such Confirmation will
supplement, form part of, and be subject to this Agreement and all provisions in
this Agreement will govern the Confirmation except as modified therein.
(u) Tax Documentation. Section 4(a)(iii) of the Agreement is hereby
amended by adding prior to the existing text:
"upon the earlier of learning that any such form or document is required
or"
(v) Inconsistency-Trade Call. In the event of any inconsistency between
a telephone conversation, including a trade call and a Confirmation signed by
both parties, the Confirmation shall govern.
(w) Condition Precedent. The condition precedent in Section 2(a)(iii)(1)
does not apply to a payment and delivery owing by a party if the other party
shall have satisfied in full all its payment or delivery obligations under
Section 2(a)(i) and shall at the relevant time have no future payment or
delivery obligations, whether absolute or contingent, under Section 2(a)(i).
(x) Definitions. This Agreement shall be subject to the 2000 Definitions
(the "2000 Definitions") as published by the International Swaps and Derivatives
Association Inc. The provisions of the 2000 Definitions are incorporated by
reference in and shall be deemed a part of this Agreement, except that all
references in the 2000 Definitions to a "Swap Transaction" shall be deemed
references to a "Transaction" for the purposes of this Agreement. Capitalized
terms used and not otherwise defined herein (or in the 2000 Definitions) shall
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement referred to in Part 3(b). If in relation to any Transaction there is
any inconsistency between the 2000 Definitions, this Agreement, the Pooling and
Servicing Agreement, any Confirmation and any other definitions published by
ISDA that are incorporated into any Confirmation, the following will prevail for
purposes of such Transaction in the order of precedence indicated: (i) such
Confirmation (without reference to any definitions or provisions incorporated
therein); (ii) the Pooling and Servicing Agreement; (iii) this Agreement; (iv)
such other definitions; and (v) the 2000 Definitions.
(y) Amendments. Section 9(b) is hereby amended as follows:
(i) by inserting the following phrase immediately prior to the
period at the end of the sentence: "and the Rating Agency
Condition is satisfied"; and
(ii) by adding the following text thereto immediately following
the first sentence: "Amendments to this Agreement or the Schedule
may not be effected in a Confirmation."
(z) "Rating Agency Condition" means, with respect to any action to which
a Rating Agency Condition applies, that each rating agency then rating
the Certificates shall have been given ten days (or such shorter period
as is acceptable to each such rating agency) prior notice of that action
and that each such rating agency shall have notified the Securities
Administrator and Master Servicer in writing that such action will not
result in a reduction, qualification or withdrawal of the then current
rating of the Certificates that it maintains.
IN WITNESS WHEREOF, the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
XXXXXXX SACHS MITSUI MARINE DERIVATIVE
PRODUCTS, L.P.
By: GSMMDPGP, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Date: 2/20/2007
GSAMP TRUST 2007-NC1
By: Xxxxx Fargo Bank, N.A.,
not in its individual capacity but solely
as Securities Administrator and Master
Servicer, on behalf of GSAMP Trust 2007-NC1
By: /s/ Xxxxxxxx X.X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
Date: 2/20/2007
Xxxxxxx Sachs Capital Markets, L.P. |
00 Xxxxx Xxxxxx x Xxx Xxxx, Xxx Xxxx 00000 | Tel: 000-000-0000
--------------------------------------------------------------
[XXXXXXX XXXXX LOGO]
CONFIRMATION
DATE: January 25, 2007
TO: Xxxxxxx Sachs Mortgage Company, L.P. (Account No.: 760-02345)
Attention: Xxxxx Kong
TO: Xxxxxxx Sachs Mitsui Marine Derivative Products, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FROM: Xxxxxxx Xxxxx Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Swap Transaction
REF NO: NUUS7015E0 (310000000)/(006 831 671)
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Xxxxxxx Sachs Capital Markets, L.P. (" GSCM") and
Xxxxxxx Xxxxx Mortgage Company ("Counterparty"). This communication constitutes
a "Confirmation" as referred to in Paragraph 2 below.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivatives
Association, Inc. are incorporated into this Confirmation.
2. This Confirmation evidences a complete and binding agreement between GSCM and
Counterparty as to the terms of the Transaction to which this Confirmation
relates, and this Confirmation evidences a Transaction for the benefit of the
certificate holders of the GSAMP Trust 2007-NC1 ("GSAMP"). This Transaction
shall constitute a "Transaction" within the scope of, and this Confirmation
shall supplement, form a part of, and be subject to, an agreement in the form of
the 1992 ISDA Master Agreement (Multicurrency-Cross Border) (the "ISDA Form") as
if the parties had executed an agreement in such form effective as of the Trade
Date but without any Schedule except for (i) the election of Loss and Second
Method, (ii) New York law (without regard to the conflicts of law principles) as
the governing law, (iii) US Dollars as the Termination Currency, (iv) the
election that subparagraph (ii) of Section 2(c) will apply to Transactions, (v)
only Section 5(a)(i) Failure to Pay and Section 5(a)(vii) Bankruptcy will be
applicable to the parties (all other Events of Default will not apply to either
party), (vi) Section 5(a)(i) is modified by replacing the word "third" in the
last line of Section 5(a)(i) with the word "first", (vii) only Section 5(b)(i)
Illegality, Section 5(b)(ii) Tax Event and Section 5(b)(iii) Tax Event Upon
Merger will be applicable to the parties (all other Termination Events will not
apply to either party), and (viii) Set-off under Section 6(e) will not apply. In
the event of any inconsistency between the Definitions, the ISDA Form and this
Confirmation, this Confirmation will govern. Notwithstanding the foregoing, it
is understood and agreed that upon the assignment of this Transaction to GSMMDP
and GSAMP pursuant to the terms of paragraph 4A hereof, this Transaction shall
be governed by the ISDA Master Agreement and the Schedule thereto between such
parties dated as of February 20, 2007.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 1,423,718,422 (subject to reduction in
accordance with the Amortization Schedule set
forth in Annex I)
Trade Date: January 25, 2007
Effective Date: February 20, 2007
Termination Date: February 25, 2012, subject to adjustment in
accordance with the Modified Following Business
Day Convention
Initial Payment: USD 180,000 payable by Counterparty to GSCM on
February 20, 2007
Floating Amounts:
----------------
Floating Rate Payer: GSCM
Floating Rate Payer Early On the day which is one (1) Business Day prior to
Payment Dates: each Floating Rate Period End Date.
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated 1 Month
Maturity:
Floating Rate Spread: None
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count Actual/360
Fraction:
Floating Rate Period Monthly, on the 25th day of each month,
End Dates: commencing on March 25, 2007 and ending on the
Termination Date, subject to adjustment in
accordance with the Modified Following Business
Day Convention.
Fixed Amounts:
-------------
Fixed Rate Payer: Counterparty
Fixed Rate Payer Monthly, on the 25th day of each month,
Payment Dates: commencing on March 25, 2007 and ending on the
Termination Date, subject to adjustment in
accordance with the Modified Following Business
Day Convention.
Fixed Rate: 5.19%
Fixed Rate Day Count Fraction: Actual/360
Fixed Rate Period End Dates: Adjusted in accordance with
the Modified Following
Business Day Convention.
Business Days: New York and Los Angeles
Calculation Agent: GSCM
4. Additional Provisions:
A. Assignment Provisions: It is acknowledged and agreed by the parties that this
Transaction shall be subject to assignment first by Counterparty to GS Mortgage
Securities Corp., then, simultaneously, (i) by GSCM to Xxxxxxx Sachs Mitsui
Marine Derivative Products, L.P. ("GSMMDP") and (ii) by GS Mortgage Securities
Corp. to GSAMP, and by GSAMP, through a collateral assignment, to Xxxxx Fargo
Bank, N.A. (the "Securities Administrator"), as securities administrator on
behalf of the holders of the Mortgage Pass-Through Certificates Series 2007-NC1,
(CUSIP Numbers: [ ] the "Certificates") (each such assignee is referred to
herein as an "Assignee" and each such assignor is referred to herein as an
"Assignor"). These assignments shall occur on the day the Assignor and Assignee
agree to such assignment and provide written or oral notification of the
effective date of assignment to the relevant constant party, or, in the case of
a simultaneous double assignment, the other assignor and/or assignee, as
appropriate (the "Constant Party") (each such day hereinafter referred to as an
"Assignment Date"). Furthermore, with respect to each assignment of this
Transaction to an Assignee, the Assignee shall accept assignment of this
Transaction subject to all terms of this Confirmation and all references to the
term "Counterparty" herein shall be deemed references to each subsequent
assignee of Counterparty and all references to the term "GSCM" herein shall be
deemed references to each subsequent assignee of GSCM. On each Assignment Date,
Constant Party, the relevant Assignor and the relevant Assignee, in
consideration of the premises and the mutual covenants contained herein and for
other good and valuable consideration received, agree as follows:
(a) Assignor sells, assigns, transfers, and sets over to Assignee, its
successors and permitted assigns, all of its right, title, and interest in, to,
under, and in respect of, this Transaction . Assignor releases and discharges
Constant Party from, and agrees not to make any claim against Constant Party
with respect to, any obligations of Constant Party arising and to be performed
under and in respect of this Transaction after the Assignment Date. Assignor
agrees that Assignee has no liability with respect to any obligation arising or
to be performed under and in respect of this Transaction prior to or on the
Assignment Date.
(b) Assignee accepts such sale, assignment and transfer and assumes and agrees
to perform each and every obligation of Assignor arising and to be performed
under this Transaction after the Assignment Date, with the same force and effect
as if Assignee had been a party to this Transaction originally; it being
understood and agreed that, with respect to the Securities Administrator as
Assignee, the Securities Administrator is an assignee solely by reason of its
capacity as securities administrator (and not in its individual capacity) and
the Securities Administrator in its individual capacity shall have no obligation
or liability for payment of any indebtedness or expenses and shall not be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken hereunder.
(c) Constant Party consents to the sale, assignment and transfer by Assignor and
the assumption by Assignee referred to above. Constant Party releases and
discharges Assignor from, and agrees not to make any claim against Assignor with
respect to, any obligations of Assignor arising and to be performed under and in
respect of this Transaction after the Assignment Date. Constant Party agrees
that Assignee has no liability with respect to any obligation arising or to be
performed under and in respect of this Transaction prior to or on the Assignment
Date.
(d) Assignor hereby represents and warrants to, and covenants and agrees with,
Assignee and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization; (ii)
it has all requisite power and authority to assign and delegate to Assignee its
rights and obligations under this Transaction as provided herein and has taken
all necessary action to authorize such assignment and delegation; and (iii) such
assignment and delegation is its legal, valid, and binding obligation
enforceable against Assignor in accordance with the terms hereof.
(e) Assignee hereby represents and warrants to, and covenants and agrees with,
Assignor and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization; (ii)
it has all requisite power and authority to assume the rights and obligations of
Assignor under this Transaction as provided herein and perform its obligations
under this Transaction and has taken all necessary action to authorize such
assumption and performance; and (iii) such assumption and this Transaction is
its legal, valid, and binding obligation enforceable against Assignee in
accordance with the terms hereof.
5. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUS7015E0 (310000000)) carefully and immediately upon receipt so that errors or
discrepancies can be promptly identified and rectified and (b) to confirm that
the foregoing correctly sets forth the terms of the agreement between GSCM,
GSMMDP and Counterparty with respect to the particular Transaction to which this
Confirmation relates, by manually signing this Confirmation and providing the
other information requested herein and immediately returning an executed copy to
Swap Administration, facsimile No. 000-000-0000.
Very truly yours,
XXXXXXX SACHS CAPITAL MARKETS, L.P.
By: Xxxxxxx Xxxxx Capital Markets, L.L.C.
General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Agreed and Accepted By:
XXXXXXX SACHS MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Xxxxx Mortgage Company, L.P.
By: /s/ Xxxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Agreed and Accepted By:
Xxxxx Fargo Bank, N.A. not in its individual capacity but solely as Securities
Administrator, on behalf of GSAMP Trust 2007-NC1
By: /s/ Xxxxxxxx X. X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. X. Xxxxx
Title: Vice President
Annex I
-------
Schedule
--------
For the Calculation to but excluding:* The applicable USD
Period from and Notional Amount
including:* shall be:
-------------------- --------------------- ------------------
February 20, 2007 March 25, 2007 1,423,718,422
March 25, 2007 April 25, 2007 1,404,313,764
April 25, 2007 May 25, 2007 1,380,585,379
May 25, 2007 June 25, 2007 1,352,574,517
June 25, 2007 July 25, 2007 1,320,359,709
July 25, 2007 August 25, 2007 1,284,057,887
August 25, 2007 September 25, 2007 1,243,826,183
September 25, 2007 October 25, 2007 1,199,859,604
October 25, 2007 November 25, 2007 1,152,420,988
November 25, 2007 December 25, 2007 1,101,964,773
December 25, 2007 January 25, 2008 1,050,352,729
January 25, 2008 February 25, 2008 999,769,178
February 25, 2008 March 25, 2008 951,552,033
March 25, 2008 April 25, 2008 905,589,653
April 25, 2008 May 25, 2008 861,775,703
May 25, 2008 June 25, 2008 820,008,896
June 25, 2008 July 25, 2008 780,192,753
July 25, 2008 August 25, 2008 742,235,376
August 25, 2008 September 25, 2008 706,034,222
September 25, 2008 October 25, 2008 671,522,215
October 27, 2008 November 25, 2008 638,343,122
November 25, 2008 December 25, 2008 606,661,322
December 25, 2008 January 25, 2009 561,956,305
January 25, 2009 February 25, 2009 502,316,790
February 25, 2009 March 25, 2009 438,701,971
March 25, 2009 April 25, 2009 393,482,652
April 25, 2009 May 26, 2009 380,105,771
May 26, 2009 June 25, 2009 360,000,152
June 25, 2009 July 25, 2009 341,003,581
July 25, 2009 August 25, 2009 323,057,162
August 25, 2009 September 25, 2009 306,097,864
September 25, 2009 October 25, 2009 290,067,044
October 25, 2009 November 25, 2009 274,912,319
November 25, 2009 December 25, 2009 260,584,182
December 25, 2009 January 25, 2010 247,037,165
January 25, 2010 February 25, 2010 234,226,741
February 25, 2010 March 25, 2010 222,111,216
March 25, 2010 April 25, 2010 210,651,163
April 25, 2010 May 25, 2010 199,809,885
May 25, 2010 June 25, 2010 189,552,743
June 25, 2010 July 25, 2010 179,847,523
July 25, 2010 August 25, 2010 170,663,167
August 25, 2010 September 25, 2010 161,970,622
September 25, 2010 October 25, 2010 153,742,422
October 25, 2010 November 25, 2010 145,952,804
November 25, 2010 December 25, 2010 138,577,465
December 25, 2010 January 25, 2011 131,593,517
January 25, 2011 February 25, 2011 124,979,329
February 25, 2011 March 25, 2011 118,562,850
March 25, 2011 April 25, 2011 112,269,482
April 25, 2011 May 25, 2011 106,306,998
May 25, 2011 June 25, 2011 100,657,259
June 25, 2011 July 25, 2011 95,303,153
July 25, 2011 August 25, 2011 90,228,535
August 25, 2011 September 25, 2011 85,418,163
September 25, 2011 October 25, 2011 80,857,669
October 25, 2011 November 25, 2011 76,533,371
November 25, 2011 December 25, 2011 72,431,047
December 25, 2011 January 25, 2012 68,535,894
January 25, 2012 February 25, 2012 64,840,775
*Subject to adjustment in accordance with the Modified Following Business Day
Convention
Xxxxxxx Sachs Capital Markets, L.P. |
00 Xxxxx Xxxxxx x Xxx Xxxx, Xxx Xxxx 00000 | Tel: 000-000-0000
--------------------------------------------------------------
[XXXXXXX XXXXX LOGO]
CONFIRMATION
DATE: January 25, 2007
TO: Xxxxxxx Sachs Mortgage Company, L.P. (Account No.: 760-02345)
Attention: Xxxxx Kong
TO: Xxxxxxx Sachs Mitsui Marine Derivative Products, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FROM: Xxxxxxx Xxxxx Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Cap Transaction
REF NO: NUUC7011A0 (290000000) / (006 831 671)
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified
below (the "Transaction") between Xxxxxxx Sachs Capital Markets, L.P. ("GSCM")
and Xxxxxxx Xxxxx Mortgage Company, L.P. ("Counterparty"). This communication
constitutes a "Confirmation" as referred to in paragraph 2. below.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivatives
Association, Inc. are incorporated into this Confirmation.
2. This Confirmation evidences a complete and binding agreement between GSCM and
Counterparty as to the terms of the Transaction to which this Conf irmation
relates, and this Confirmation evidences a Transaction for the benefit of the
certificate holders of the GSAMP Trust 2007-NC1 ("GSAMP"). This Transaction
shall constitute a "Transaction" within the scope of, and this Confirmation
shall supplement, form a part of, and be subject to, an agreement in the form of
the 1992 ISDA Master Agreement (Multicurrency-Cross Border) (the "ISDA Form") as
if the parties had executed an agreement in such form effective as of the Trade
Date but without any Schedule except for (i) the election of Loss and Second
Method, (ii) New York law (without regard to the conflicts of law principles) as
the governing law, (iii) US Dollars as the Termination Currency, (iv) the
election that subparagraph (ii) of Section 2(c) will apply to Transactions, (v)
only Section 5(a)(i) Failure to Pay and Section 5(a)(vii) Bankruptcy will be
applicable to the parties (all other Events of Default will not apply to either
party), (vi) Section 5(a)(i) is modified by replacing the word "third" in the
last line of Section 5(a)(i) with the word "first", (vii) only Section 5(b)(i)
Illegality Section 5(b)(ii) Tax Event and Secion 5(b)(iii) Tax Event Upon Merger
will be applicable to the parties (all other Termination Events will not apply
to either party), and (viii) Set-off under Section 6(e) will not apply. In the
event of any inconsistency between the Definitions, the ISDA Form and this
Confirmation, this Confirmation will govern. Notwithstanding the foregoing, it
is understood and agreed that upon the assignment of this Transaction to GSMMDP
and GSAMP pursuant to the terms of paragraph 4A hereof, this Transaction shall
be governed by the ISDA Master Agreement and Schedule thereto between such
parties dated as of February 20 2007.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 6,628,584.00 (subject to adjustment in
accordance with the Amortization Schedule set
forth in Annex I)
Trade Date: January 25, 2007
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: February 25, 2012, subject to adjustment in
accordance with the Modified Following Business
Day Convention
Floating Amounts:
----------------
Floating Rate Payer (Cap GSCM
Seller):
Cap Rate: 6.00%
Floating Rate Payer Early On the day which is one (1) Business Day prior
Payment Dates: to each Floating Rate Period End Date
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated 1 Month
Maturity:
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count Actual/360
Fraction:
Floating Rate Payer Payment Monthly, on the 25th day of each month,
Dates: commencing on April 25, 2007 and ending on the
Termination Date, subject to adjustment in
accordance with the Modified Following Business
Day Convention.
Fixed Amounts:
-------------
Fixed Rate Payer (Cap Buyer): Counterparty
Fixed Rate Payer Payment Date: January 31, 2007, subject to adjustment in
accordance with the Modified Following Business
Day Convention.
Fixed Amount: USD 1,700,000
Business Days: New York and Los Angeles
Calculation Agent: GSCM
4. Additional Provisions:
A. Assignment Provisions: It is acknowledged and agreed by the parties that this
Transaction shall be subject to assignment first by Counterparty to GS Mortgage
Securities Corp., then, simultaneously, (i) by GSCM to Xxxxxxx Sachs Mitsui
Marine Derivative Products, L.P. ("GSMMDP") and (ii) by GS Mortgage Securities
Corp. to GSAMP, and by GSAMP, through a collateral assignment to Xxxxx Fargo
Bank, N.A. (the "Securities Administrator"), as securities administrator on
behalf of the holders of the Mortgage Pass-Through Certificates, Series
2007-NC1, (CUSIP Number: [ ]; the "Certificates ") (each such assignee is
referred to herein as an "Assignee" and each such assignor is referred to herein
as an "Assignor"). These assignments shall occur on the day the Assignor and
Assignee agree to such assignment and provide written or oral notification of
the effective date of assignment to the relevant constant party, or, in the case
of a simultaneous double assignment, the other assignor and/or assignee, as
appropriate (the "Constant Party") (each such day hereinafter referred to as an
"Assignment Date"). Furthermore, with respect to each assignment of the
Transaction to an Assignee, the Assignee shall accept assignment of the
Transaction subject to all terms of this Confirmation and all references to the
term "Counterparty" herein shall be deemed references to each subsequent
assignee of Counterparty and all references to the term GSCM herein shall be
deemed references to each subsequent assignee of "GSCM". On each Assignment
Date, Constant Party, the relevant Assignor and the relevant Assignee, in
consideration of the premises and the mutual covenants contained herein and for
other good and valuable consideration received, agree as follows:
(a) Assignor sells, assigns, transfers, and sets over to Assignee, its
successors and permitted assigns, all of its right, title, and interest in, to,
under, and in respect of, the Transaction. Assignor releases and discharges
Constant Party from, and agrees not to make any claim against Constant Party
with respect to, any obligations of Constant Party arising and to be performed
under and in respect of the Transaction after the Assignment Date. Assignor
agrees that Assignee has no liability with respect to any obligation arising or
to be performed under and in respect of the Transaction prior to or on the
Assignment Date.
(b) Assignee accepts such sale, assignment and transfer and assumes and agrees
to perform each and every obligation of Assignor arising and to be performed
under the Transaction after the Assignment Date, with the same force and effect
as if Assignee had been a party to the Transaction originally; it being
understood and agreed that, with respect to the Securities Administrator as
Assignee, the Securities Administrator is an assignee solely by reason of its
capacity as securities administrator (and not in its individual capacity) and
the Securities Administrator in its individual capacity shall have no obligation
or liability for payment of any indebtedness or expenses and shall not be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken hereunder.
(c) Constant Party consents to the sale, assignment and transfer by Assignor and
the assumption by Assignee referred to above. Constant Party releases and
discharges Assignor from, and agrees not to make any claim against Assignor with
respect to, any obligations of Assignor arising and to be performed under and in
respect of the Transaction after the Assignment Date. Constant Party agrees that
Assignee has no liability with respect to any obligation arising or to be
performed under and in respect of the Transaction prior to or on the Assignment
Date.
(d) Assignor hereby represents and warrants to, and covenants and agrees with,
Assignee and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization; (ii)
it has all requisite power and authority to assign and delegate to Assignee its
rights and obligations under the Transaction as provided herein and has taken
all necessary action to authorize such assignment and delegation; and (iii) such
assignment and delegation is its legal, valid, and binding obligation
enforceable against Assignor in accordance with the terms hereof.
(e) Assignee hereby represents and warrants to, and covenants and agrees with,
Assignor and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization; (ii)
it has all requisite power and authority to assume the rights and obligations of
Assignor under the Transaction as provided herein and perform its obligations
under the Transaction and has taken all necessary action to authorize such
assumption and performance; and (iii) such assumption and the Transaction is its
legal, valid, and binding obligation enforceable against Assignee in accordance
with the terms hereof.
(f) Assignor and Constant Party acknowledge that as of the Assignment Dates no
amounts are owed by the Assignor or Constant Party to the other under the
Transaction to which this Agreement relates.
5. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUC7011A0 (290000000)) carefully and immediately upon receipt so that errors or
discrepancies can be promptly identified and rectified and (b) to confirm that
the foregoing correctly sets forth the terms of the agreement between GSCM,
GSMMDP and Counterparty, with respect to the particular Transaction to which
this Confirmation relates, by manually signing this Confirmation and providing
the other information requested herein and immediately returning an executed
copy to Swap Administration, facsimile No. 000-000-0000.
Very truly yours,
XXXXXXX XXXXX CAPITAL MARKETS, L.P.
By: Xxxxxxx Sachs Capital Markets, L.L.C.
General Partner
By: /s/ Xxxxx Son Xxx
-------------------------------
Name: Xxxxx Son Xxx
Title: Vice President
Agreed and Accepted By:
XXXXXXX SACHS MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Xxxxx Mortgage Company, L.P.
By: /s/ Xxxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Agreed and Accepted By:
Xxxxx Fargo Bank, N.A. not in its individual capacity but solely as Securities
Administrator, on behalf of GSAMP Trust 2007-NC1
By: /s/ Xxxxxxxx X. X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. X. Xxxxx
Title: Vice President
Annex I
-------
Schedule
--------
For the Calculation to but excluding**: The applicable USD
Periods from and Notional Amount
including**: shall be:
---------------------- ------------------------- ---------------------
March 25, 2007 April 25, 2007 6,628,584
April 25, 2007 May 25, 2007 14,791,767
May 25, 2007 June 25, 2007 24,469,345
June 25, 2007 July 25, 2007 35,619,764
July 25, 2007 August 25, 2007 48,179,313
August 25, 2007 September 25, 2007 62,061,116
September 25, 2007 October 25, 2007 77,156,087
October 25, 2007 November 25, 2007 93,320,497
November 25, 2007 December 25, 2007 110,330,100
December 25, 2007 January 25, 2008 127,379,655
January 25, 2008 February 25, 2008 143,561,184
February 25, 2008 March 25, 2008 158,352,279
March 25, 2008 April 25, 2008 171,836,740
April 25, 2008 May 25, 2008 184,093,862
May 25, 2008 June 25, 2008 195,198,664
June 25, 2008 July 25, 2008 205,222,109
July 25, 2008 August 25, 2008 214,231,313
August 25, 2008 September 25, 2008 222,295,384
September 25, 2008 October 25, 2008 229,467,318
October 25, 2008 November 25, 2008 235,904,788
November 25, 2008 December 25, 2008 241,558,618
December 25, 2008 January 25, 2009 251,628,629
January 25, 2009 February 25, 2009 265,941,091
February 25, 2009 March 25, 2009 279,665,872
March 25, 2009 April 25, 2009 284,886,482
April 25, 2009 May 25, 2009 269,384,803
May 25, 2009 June 25, 2009 267,150,803
June 25, 2009 July 25, 2009 264,551,393
July 25, 2009 August 25, 2009 261,629,202
August 25, 2009 September 25, 2009 258,415,555
September 25, 2009 October 25, 2009 254,939,819
October 25, 2009 November 25, 2009 251,232,143
November 25, 2009 December 25, 2009 247,320,197
December 25, 2009 January 25, 2010 243,231,306
January 25, 2010 February 25, 2010 238,988,340
February 25, 2010 March 25, 2010 234,612,703
March 25, 2010 April 25, 2010 244,385,317
April 25, 2010 May 25, 2010 240,681,038
May 25, 2010 June 25, 2010 236,870,219
June 25, 2010 July 25, 2010 232,970,193
July 25, 2010 August 25, 2010 228,995,769
August 25, 2010 September 25, 2010 224,960,905
September 25, 2010 October 25, 2010 220,878,274
October 25, 2010 November 25, 2010 216,759,710
November 25, 2010 December 25, 2010 212,616,037
December 25, 2010 January 25, 2011 208,457,206
January 25, 2011 February 25, 2011 204,292,214
February 25, 2011 March 25, 2011 200,280,993
March 25, 2011 April 25, 2011 196,486,381
April 25, 2011 May 25, 2011 192,689,276
May 25, 2011 June 25, 2011 188,896,871
June 25, 2011 July 25, 2011 185,115,705
July 25, 2011 August 25, 2011 181,351,710
August 25, 2011 September 25, 2011 177,610,231
September 25, 2011 October 25, 2011 173,896,131
October 25, 2011 November 25, 2011 170,213,500
November 25, 2011 December 25, 2011 166,564,874
December 25, 2011 January 25, 2012 162,943,197
January 25, 2012 February 25, 2012 159,362,651
**subject to adjustment in accordance with the Modified Following Business Day
Convention
EXHIBIT Y
FORM OF SERVICER REMITTANCE REPORT
----------------------------------------------------------------------------------------------------------
Format
Column Name Description Decimal Comment Max Size
----------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Text up to 10 digits 20
Servicer to define a group of
loans.
----------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to Text up to 10 digits 10
each loan by the investor.
----------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a Text up to 10 digits 10
loan by the Servicer. This may
be different than the LOAN_NBR.
----------------------------------------------------------------------------------------------------------
BORROWER_NAME The borrower name as received Maximum length of 30 30
in the file. It is not (Last, First)
separated by first and last
name.
----------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar 11
scheduled interest payment that signs ($)
a borrower is expected to pay,
P&I constant.
----------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as 4 Max length of 6 6
reported by the Servicer.
----------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate 4 Max length of 6 6
less the service fee rate as
reported by the Servicer.
----------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a 4 Max length of 6 6
loan as reported by the
Servicer.
----------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a 2 No commas(,) or dollar 11
loan as reported by the signs ($)
Servicer.
----------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
----------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported 4 Max length of 6 6
by the Servicer.
----------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using 4 Max length of 6 6
to calculate a forecasted rate.
----------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar 11
balance at the beginning of the signs ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar 11
balance at the end of the signs ($)
processing cycle.
----------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of MM/DD/YYYY 10
processing cycle that the
borrower's next payment is due
to the Servicer, as reported by
Servicer.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to 2 No commas(,) or dollar 11
be applied. signs ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated MM/DD/YYYY 10
with the first curtailment
amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) or dollar 11
first curtailment amount, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount 2 No commas(,) or dollar 11
to be applied. signs ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date associated MM/DD/YYYY 10
with the second curtailment
amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or dollar 11
second curtailment amount, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to 2 No commas(,) or dollar 11
be applied. signs ($)
----------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated MM/DD/YYYY 10
with the third curtailment
amount.
----------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) or dollar 11
third curtailment amount, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount 2 No commas(,) or dollar 11
as reported by the Servicer. signs ($)
----------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as MM/DD/YYYY 10
reported by the Servicer.
----------------------------------------------------------------------------------------------------------
Action Code Key: 2
15=Bankruptcy,
30=Foreclosure, ,
60=PIF,
63=Substitution,
65=Repurchase,70=REO
----------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numeric code
used to indicate the
default/delinquent status of a
particular loan.
----------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar 11
adjustment as reported by the signs ($)
Servicer.
----------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor 2 No commas(,) or dollar 11
Adjustment amount, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan 2 No commas(,) or dollar 11
Amount, if applicable. signs ($)
----------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is 2 No commas(,) or dollar 11
passing as a loss, if signs ($)
applicable.
----------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or dollar 11
principal amount due at the signs ($)
beginning of the cycle date to
be passed through to investors.
----------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance 2 No commas(,) or dollar 11
due to investors at the end of signs ($)
a processing cycle.
----------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount 2 No commas(,) or dollar 11
as reported by the Servicer for signs ($)
the current cycle -- only
applicable for
Scheduled/Scheduled Loans.
----------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current cycle as
reported by the Servicer --
only applicable for
Scheduled/Scheduled Loans.
----------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar 11
collected by the Servicer for signs ($)
the current reporting cycle --
only applicable for
Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current
reporting cycle as reported by
the Servicer -- only applicable
for Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received 2 No commas(,) or dollar 11
when a borrower prepays on his signs ($)
loan as reported by the
Servicer.
----------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount 2 No commas(,) or dollar 11
for the loan waived by the signs ($)
servicer.
----------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of MM/DD/YYYY 10
the Modification for the loan.
----------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be 30
alpha or numeric
----------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding 2 No commas(,) or dollar 11
principal and interest advances signs ($)
made by Servicer.
----------------------------------------------------------------------------------------------------------
Exhibit Y: Standard File Layout - Delinquency Reporting
Please be advised that failure to comply with ANY or all of the guidelines
entailed herein may result in issuance of late reporting fees.
(C) Copyright Xxxxx Fargo Bank, Corporate Trust Services
Contact us with Reporting Questions: XXXXxxxxxxXXX@XxxxxXxxxx.xxx
-------------------------------------- -------------------------------------------------- --------- -------------
Column/Header Name Description Decimal Format
Comment
-------------------------------------- -------------------------------------------------- --------- -------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
-------------------------------------- -------------------------------------------------- --------- -------------
LOAN_NBR A unique identifier assigned to each loan by the
originator.
-------------------------------------- -------------------------------------------------- --------- -------------
CLIENT_NBR Servicer Client Number
-------------------------------------- -------------------------------------------------- --------- -------------
SERV_INVESTOR_NBR Contains a unique number as assigned by
an external servicer to identify a group
of loans in their system.
-------------------------------------- -------------------------------------------------- --------- -------------
BORROWER_FIRST_NAME First Name of the Borrower.
-------------------------------------- -------------------------------------------------- --------- -------------
BORROWER_LAST_NAME Last name of the borrower.
-------------------------------------- -------------------------------------------------- --------- -------------
XXXX_XXXXXXX Xxxxxx Name and Number of Property
-------------------------------------- -------------------------------------------------- --------- -------------
PROP_STATE The state where the property located.
-------------------------------------- -------------------------------------------------- --------- -------------
PROP_ZIP Zip code where the property is located.
-------------------------------------- -------------------------------------------------- --------- -------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment
is due MM/DD/YYYY to the servicer at the
end of processing cycle, as reported by
Servicer.
-------------------------------------- -------------------------------------------------- --------- -------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
-------------------------------------- -------------------------------------------------- --------- -------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
-------------------------------------- -------------------------------------------------- --------- -------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
-------------------------------------- -------------------------------------------------- --------- -------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has MM/DD/YYYY
been approved by the courts
-------------------------------------- -------------------------------------------------- --------- -------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a Motion
For Relief Was Granted.
-------------------------------------- -------------------------------------------------- --------- -------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
-------------------------------------- -------------------------------------------------- --------- -------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan
Such As;
-------------------------------------- -------------------------------------------------- --------- -------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled MM/DD/YYYY
To End/Close
-------------------------------------- -------------------------------------------------- --------- -------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
-------------------------------------- -------------------------------------------------- --------- -------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the
servicer MM/DD/YYYY with instructions to
begin foreclosure proceedings.
-------------------------------------- -------------------------------------------------- --------- -------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
-------------------------------------- -------------------------------------------------- --------- -------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
-------------------------------------- -------------------------------------------------- --------- -------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected MM/DD/YYYY
to occur.
-------------------------------------- -------------------------------------------------- --------- -------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No
foreclosure sale. commas(,)
or dollar
signs ($)
-------------------------------------- -------------------------------------------------- --------- -------------
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
-------------------------------------- -------------------------------------------------- --------- -------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession MM/DD/YYYY
of the property from the borrower.
-------------------------------------- -------------------------------------------------- --------- -------------
LIST_PRICE The price at which an REO property is marketed. 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
-------------------------------------- -------------------------------------------------- --------- -------------
OFFER_AMT The dollar value of an offer for an REO property. 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by MM/DD/YYYY
the Servicer.
-------------------------------------- -------------------------------------------------- --------- -------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
-------------------------------------- -------------------------------------------------- --------- -------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
OCCUPANT_CODE Classification of how the property is occupied.
-------------------------------------- -------------------------------------------------- --------- -------------
PROP_CONDITION_CODE A code that indicates the condition of the
property.
-------------------------------------- -------------------------------------------------- --------- -------------
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
CURR_PROP_VAL The current "as is" value of the property based 2
on brokers price opinion or appraisal.
-------------------------------------- -------------------------------------------------- --------- -------------
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a broker's
price opinion or appraisal.
-------------------------------------- -------------------------------------------------- --------- -------------
If applicable:
-------------------------------------- -------------------------------------------------- --------- -------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
-------------------------------------- -------------------------------------------------- --------- -------------
DELINQ_REASON_CODE The circumstances which caused a borrower
to stop paying on a loan. Code indicates
the reason why the loan is in default for
this cycle.
-------------------------------------- -------------------------------------------------- --------- -------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With MM/DD/YYYY
Mortgage Insurance Company.
-------------------------------------- -------------------------------------------------- --------- -------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
-------------------------------------- -------------------------------------------------- --------- -------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued MM/DD/YYYY
By The Pool Insurer
-------------------------------------- -------------------------------------------------- --------- -------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
-------------------------------------- -------------------------------------------------- --------- -------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
-------------------------------------- -------------------------------------------------- --------- -------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No
commas(,)
or
dollar
signs
($)
-------------------------------------- -------------------------------------------------- --------- -------------
Exhibit 2: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as
follows:
-------------------- ----------------------------------------------
Delinquency Code Delinquency Description
-------------------- ----------------------------------------------
001 FNMA-Death of principal mortgagor
-------------------- ----------------------------------------------
002 FNMA-Illness of principal mortgagor
-------------------- ----------------------------------------------
003 FNMA-Illness of mortgagor's family member
-------------------- ----------------------------------------------
004 FNMA-Death of mortgagor's family member
-------------------- ----------------------------------------------
005 FNMA-Marital difficulties
-------------------- ----------------------------------------------
006 FNMA-Curtailment of income
-------------------- ----------------------------------------------
007 FNMA-Excessive Obligation
-------------------- ----------------------------------------------
008 FNMA-Abandonment of property
-------------------- ----------------------------------------------
009 FNMA-Distant employee transfer
-------------------- ----------------------------------------------
011 FNMA-Property problem
-------------------- ----------------------------------------------
012 FNMA-Inability to sell property
-------------------- ----------------------------------------------
013 FNMA-Inability to rent property
-------------------- ----------------------------------------------
014 FNMA-Military Service
-------------------- ----------------------------------------------
015 FNMA-Other
-------------------- ----------------------------------------------
016 FNMA-Unemployment
-------------------- ----------------------------------------------
017 FNMA-Business failure
-------------------- ----------------------------------------------
019 FNMA-Casualty loss
-------------------- ----------------------------------------------
022 FNMA-Energy environment costs
-------------------- ----------------------------------------------
023 FNMA-Servicing problems
-------------------- ----------------------------------------------
026 FNMA-Payment adjustment
-------------------- ----------------------------------------------
027 FNMA-Payment dispute
-------------------- ----------------------------------------------
029 FNMA-Transfer of ownership pending
-------------------- ----------------------------------------------
030 FNMA-Fraud
-------------------- ----------------------------------------------
031 FNMA-Unable to contact borrower
-------------------- ----------------------------------------------
INC FNMA-Incarceration
-------------------- ----------------------------------------------
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
-------------------- ---------------------------------------------
Status Code Status Description
-------------------- ---------------------------------------------
09 Forbearance
-------------------- ---------------------------------------------
17 Pre-foreclosure Sale Closing Plan Accepted
-------------------- ---------------------------------------------
24 Government Seizure
-------------------- ---------------------------------------------
26 Refinance
-------------------- ---------------------------------------------
27 Assumption
-------------------- ---------------------------------------------
28 Modification
-------------------- ---------------------------------------------
29 Charge-Off
-------------------- ---------------------------------------------
30 Third Party Sale
-------------------- ---------------------------------------------
31 Probate
-------------------- ---------------------------------------------
32 Military Indulgence
-------------------- ---------------------------------------------
43 Foreclosure Started
-------------------- ---------------------------------------------
44 Deed-in-Lieu Started
-------------------- ---------------------------------------------
49 Assignment Completed
-------------------- ---------------------------------------------
61 Second Lien Considerations
-------------------- ---------------------------------------------
62 Veteran's Affairs-No Bid
-------------------- ---------------------------------------------
63 Veteran's Affairs-Refund
-------------------- ---------------------------------------------
64 Veteran's Affairs-Buydown
-------------------- ---------------------------------------------
65 Chapter 7 Bankruptcy
-------------------- ---------------------------------------------
66 Chapter 11 Bankruptcy
-------------------- ---------------------------------------------
67 Chapter 13 Bankruptcy
-------------------- ---------------------------------------------
EXHIBIT Z
FORM OF MONTHLY DEFAULTED LOAN REPORT
----------------------------------------------------------------------------------------------------------
Format
Column/Header Name Description Decimal Comment
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
----------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each loan
by the originator.
----------------------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
----------------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of
loans in their system.
----------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
----------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
----------------------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
----------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
----------------------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
----------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment MM/DD/YYYY
is due to the servicer at the end of
processing cycle, as reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
----------------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was MM/DD/YYYY
filed.
----------------------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was
filed.
----------------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
----------------------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy MM/DD/YYYY
has been approved by the courts
----------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
----------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved MM/DD/YYYY
By The Servicer
----------------------------------------------------------------------------------------------------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A
Loan Such As;
----------------------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
----------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
----------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
----------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
----------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in MM/DD/YYYY
a Foreclosure Action
----------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
----------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,)
foreclosure sale. or dollar
----------------------------------------------------------------------------------------------------------
signs ($)
----------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction of MM/DD/YYYY
the borrower.
----------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession MM/DD/YYYY
of the property from the borrower.
----------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is 2 No commas(,)
marketed. or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,)
property. or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin MM/DD/YYYY
or by the Servicer.
----------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
----------------------------------------------------------------------------------------------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is
occupied.
----------------------------------------------------------------------------------------------------------
PROP_CONDITION_CODE A code that indicates the condition of the
property.
----------------------------------------------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
----------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property 2
based on brokers price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a
broker's price opinion or appraisal.
----------------------------------------------------------------------------------------------------------
If applicable:
----------------------------------------------------------------------------------------------------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
----------------------------------------------------------------------------------------------------------
DELINQ_REASON_CODE The circumstances which caused a borrower
to stop paying on a loan. Code indicates
the reason why the loan is in default for
this cycle.
----------------------------------------------------------------------------------------------------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
----------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
----------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On 2 No commas(,)
Claim or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
----------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance 2 No commas(,)
Company or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
----------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,)
Company or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans MM/DD/YYYY
Admin
----------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
----------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
Exhibit 2: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as
follows:
Delinquency Code Delinquency Description
---------------- -----------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
Status Code Status Description
----------- ------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
EXHIBIT Z Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and
all credits as separate line items. Claim packages are due on the
remittance report date. Late submissions may result in claims not
being passed until the following month. The Servicer is responsible to
remit all funds pending loss approval and /or resolution of any
disputed items.
The numbers on the 332 form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
-------------------------------------
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been
made as agreed. For documentation, an Amortization Schedule from
date of default through liquidation breaking out the net interest
and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance
of the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period
of coverage, base tax, interest, penalty. Advances prior to
default require evidence of servicer efforts to recover
advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance
forward)
* Other expenses - copies of corporate advance history showing
all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision
and WFB's approved Officer Certificate
* Unusual or extraordinary items may require further
documentation.
13. The total of lines 1 through 12.
Credits:
14-21.Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332
form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial
proceeds and line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
Exhibit 3A: Calculation of Realized Loss/Gain Form 332
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
------------------------ -------------------------- ----------------------
Servicer Loan No. Servicer Name Servicer Address
------------------------ -------------------------- ----------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: ______________________________________________________
Property Address: _____________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge
Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount _______________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________ (1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes (see page 2) ________________(5)
(6) Property Maintenance ________________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections ________________(10)
(11) FC Costs/Other Legal Expenses ________________(11)
(12) Other (itemize) ________________(12)
Cash for Keys__________________________ ________________(12)
HOA/Condo Fees_______________________ ________________(12)
______________________________________ ________________(12)
Total Expenses $ _______________(13)
Credits:
(14) Escrow Balance $ _______________(14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance / Gov't Insurance ________________ (18)
(18a) HUD Part A ________________ (18a)
(18b) HUD Part B ________________ (18b)
(19) Pool Insurance Proceeds ________________ (19)
(20) Proceeds from Sale of Acquired Property ________________ (20)
(21) Other (itemize) ________________ (21)
_________________________________________ ________________ (21)
Total Credits $________________(22)
Total Realized Loss (or Amount of Gain) $________________(23)
Escrow Disbursement Detail
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
Type Date Paid Period of Total Paid Base Amount Penalties Interest
(Tax /Ins.) Coverage
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
--------------------------------------------------------------------------------
Please be advised that failure to comply with ANY or all of the guidelines
entailed herein may result in issuance of late reporting fees.
(C) Copyright Xxxxx Fargo Bank, Corporate Trust Services
Contact us with Reporting Questions: XXXXxxxxxxXXX@XxxxxXxxxx.xxx
--------------------------------------------------------------------------------
EXHIBIT AA
FORM OF REALIZED LOSS REPORT
Exhibit : Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and
all credits as separate line items. Claim packages are due on the
remittance report date. Late submissions may result in claims not being
passed until the following month. The Servicer is responsible to remit
all funds pending loss approval and /or resolution of any disputed
items.
The numbers on the 332 form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
-------------------------------------
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been
made as agreed. For documentation, an Amortization Schedule from
date of default through liquidation breaking out the net interest
and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance
of the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period
of coverage, base tax, interest, penalty. Advances prior to
default require evidence of servicer efforts to recover
advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance
forward)
* Other expenses - copies of corporate advance history showing
all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision
and WFB's approved Officer Certificate
* Unusual or extraordinary items may require further
documentation.
13. The total of lines 1 through 12.
Credits:
--------
14-21.Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial
proceeds and line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
Exhibit 3A: Calculation of Realized Loss/Gain Form 332
Prepared by: __________________ Date: _____________________________
Phone: ______________________ Email Address:_____________________
------------------- -------------------- --------------------
|Servicer Loan No.| |Servicer Name | |Servicer Address |
| | | | | |
| | | | | |
------------------- |------------------- --------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: _________________________________________________________
Property Address: _________________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount _______________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________ (1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes (see page 2) ________________(5)
(6) Property Maintenance _______________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections ________________(10)
(11) FC Costs/Other Legal Expenses ________________(11)
(12) Other (itemize) ________________(12)
Cash for Keys__________________________ ________________(12)
HOA/Condo Fees_______________________ ________________(12)
______________________________________ ________________(12)
Total Expenses $ ________________ (13)
Credits:
(14) Escrow Balance $ ________________ (14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance / Gov't Insurance ________________ (18a)
HUD Part A
________________ (18b)
HUD Part B
(19) Pool Insurance Proceeds ________________ (19)
(20) Proceeds from Sale of Acquired Property ________________ (20)
(21) Other (itemize) ________________ (21)
_________________________________________ ________________ (21)
Total Credits $________________ (22)
Total Realized Loss (or Amount of Gain) $________________ (23)
Escrow Disbursement Detail
Type Date Paid Period of Total Paid Base Amount Penalties Interest
(Tax /Ins.) Coverage
------------ --------- --------- ---------- ----------- --------- --------
Standard File Layout - Master Servicing
-------------------------------------------------------------------------- ------- ------------------------------------ -------
Column Name Description Decimal Format Comment Max
Size
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 10 digits 20
define a group of loans.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
LOAN_NBR A unique identifier assigned to each Text up to 10 digits 10
loan by the investor.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERVICER_LOAN_NBR A unique number assigned to a loan by Text up to 10 digits 10
the Servicer. This may be different
than the LOAN_NBR.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
BORROWER_NAME The borrower name as received in the Maximum length of 30 (Last, First) 30
file. It is not separated by first and
last name.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar signs ($) 11
scheduled interest payment that a
borrower is expected to pay, P&I
constant.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
NOTE_INT_RATE The loan interest rate as reported by 4 Max length of 6 6
the Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
NEW_PAY_AMT The new loan payment amount as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
ACTL_BEG_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or dollar signs ($) 11
at the beginning of the processing cycle.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
ACTL_END_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or dollar signs ($) 11
at the end of the processing cycle.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle MM/DD/YYYY 10
that the borrower's next payment is due
to the Servicer, as reported by Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SERV_CURT_DATE_3 The curtailment date associated with the MM/DD/YYYY 10
third curtailment amount.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
Action Code Key: 15=Bankruptcy, 2
00xXxxxxxxxxxx, , 00xXXX,
63=Substitution,
65=Repurchase,70=REO
ACTION_CODE The standard FNMA numeric code used to
indicate the default/delinquent status
of a particular loan.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
LOAN_LOSS_AMT The amount the Servicer is passing as a 2 No commas(,) or dollar signs ($) 11
loss, if applicable.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SCHED_BEG_PRIN_BAL The scheduled outstanding principal 2 No commas(,) or dollar signs ($) 11
amount due at the beginning of the cycle
date to be passed through to investors.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar signs ($) 11
investors at the end of a processing
cycle.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer for the current
cycle -- only applicable for
Scheduled/Scheduled Loans.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
SCHED_NET_INT The scheduled gross interest amount less 2 No commas(,) or dollar signs ($) 11
the service fee amount for the current
cycle as reported by the Servicer --
only applicable for Scheduled/Scheduled
Loans.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
ACTL_PRIN_AMT The actual principal amount collected by 2 No commas(,) or dollar signs ($) 11
the Servicer for the current reporting
cycle -- only applicable for
Actual/Actual Loans.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
ACTL_NET_INT The actual gross interest amount less 2 No commas(,) or dollar signs ($) 11
the service fee amount for the current
reporting cycle as reported by the
Servicer -- only applicable for
Actual/Actual Loans.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar signs ($) 11
borrower prepays on his loan as reported
by the Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the 2 No commas(,) or dollar signs ($) 11
loan waived by the servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar signs ($) 11
interest advances made by Servicer.
------------------------------- ------------------------------------------ ------- ------------------------------------ -------
