Exhibit 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
AVELO MORTGAGE, L.L.C.,
Servicer,
U.S. BANK NATIONAL ASSOCIATION,
Custodian,
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 March 1, 2007
------------------------------------------------------------------------
GSAMP TRUST 2007-HE2
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HE2
TABLE OF CONTENTS
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 Servicer and
each 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 Servicer to Service Mortgage Loans...............................
Section 3.02 Subservicing Agreements between the 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 Servicer 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 for Certain 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 SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Servicer.........
Section 6.02 Merger or Consolidation of the Depositor or the Servicer.........
Section 6.03 Limitation on Liability of the Depositor, the Servicer and
Others.......................................................
Section 6.04 Limitation on Resignation of the Servicer........................
Section 6.05 Additional Indemnification by the Servicer; 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 CUSTODIANS
Section 8.01 Duties of the Trustee............................................
Section 8.02 Certain Matters Affecting each 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 Avelo Mortgage, L.L.C., as
Servicer
Schedule III Representations and Warranties of U.S. Bank National Association,
as Custodian
Schedule IV Representations and Warranties of Deutsche Bank National Trust
Company, as Custodian
EXHIBITS
Exhibit A Form of Class A and Class M Certificates
Exhibit B Form of Class P Certificate
Exhibit C Form of Class C Certificate
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 Custodians
Exhibit G Form of Document Certification and Exception Report of the
Custodians
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 March 1, 2007,
among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"),
AVELO MORTGAGE, L.L.C., a Delaware limited liability company, as servicer (the
"Servicer"), U.S. BANK NATIONAL ASSOCIATION, a national banking association, as
a custodian ("U.S. Bank"), DEUTSCHE BANK NATIONAL TRUST COMPANY, a national
banking association, as a custodian ("Deutsche Bank," and together with U.S.
Bank, the "Custodians"), 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 and Class LT-M-9 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) $24,575,198.46
Class PT1-I-2A (2) $ 2,730,628.13
Class PT1-I-2B (3) $ 2,730,628.13
Class PT1-I-3A (2) $ 3,362,795.90
Class PT1-I-3B (3) $ 3,362,795.90
Class PT1-I-4A (2) $ 3,989,557.62
Class PT1-I-4B (3) $ 3,989,557.62
Class PT1-I-5A (2) $ 4,605,873.19
Class PT1-I-5B (3) $ 4,605,873.19
Class PT1-I-6A (2) $ 5,205,669.39
Class PT1-I-6B (3) $ 5,205,669.39
Class PT1-I-7A (2) $ 5,783,572.24
Class PT1-I-7B (3) $ 5,783,572.24
Class PT1-I-8A (2) $ 6,333,427.84
Class PT1-I-8B (3) $ 6,333,427.84
Class PT1-I-9A (2) $ 6,849,659.98
Class PT1-I-9B (3) $ 6,849,659.98
Class PT1-I-10A (2) $ 7,324,970.85
Class PT1-I-10B (3) $ 7,324,970.85
Class PT1-I-11A (2) $ 7,719,691.12
Class PT1-I-11B (3) $ 7,719,691.12
Class PT1-I-12A (2) $ 7,460,433.73
Class PT1-I-12B (3) $ 7,460,433.73
Class PT1-I-13A (2) $ 7,115,949.02
Class PT1-I-13B (3) $ 7,115,949.02
Class PT1-I-14A (2) $ 6,787,541.13
Class PT1-I-14B (3) $ 6,787,541.13
Class PT1-I-15A (2) $ 6,477,821.21
Class PT1-I-15B (3) $ 6,477,821.21
Class PT1-I-16A (2) $ 6,178,670.94
Class PT1-I-16B (3) $ 6,178,670.94
Class PT1-I-17A (2) $ 5,893,537.29
Class PT1-I-17B (3) $ 5,893,537.29
Class PT1-I-18A (2) $ 5,625,822.51
Class PT1-I-18B (3) $ 5,625,822.51
Class PT1-I-19A (2) $ 5,369,879.15
Class PT1-I-19B (3) $ 5,369,879.15
Class PT1-I-20A (2) $ 5,131,101.00
Class PT1-I-20B (3) $ 5,131,101.00
Class PT1-I-21A (2) $ 4,896,639.21
Class PT1-I-21B (3) $ 4,896,639.21
Class PT1-I-22A (2) $ 4,693,963.60
Class PT1-I-22B (3) $ 4,693,963.60
Class PT1-I-23A (2) $ 4,758,260.96
Class PT1-I-23B (3) $ 4,758,260.96
Class PT1-I-24A (2) $ 9,756,892.76
Class PT1-I-24B (3) $ 9,756,892.76
Class PT1-I-25A (2) $ 9,175,930.62
Class PT1-I-25B (3) $ 9,175,930.62
Class PT1-I-26A (2) $ 7,786,170.44
Class PT1-I-26B (3) $ 7,786,170.44
Class PT1-I-27A (2) $ 3,872,917.40
Class PT1-I-27B (3) $ 3,872,917.40
Class PT1-I-28A (2) $ 3,205,341.56
Class PT1-I-28B (3) $ 3,205,341.56
Class PT1-I-29A (2) $ 1,098,882.06
Class PT1-I-29B (3) $ 1,098,882.06
Class PT1-I-30A (2) $ 969,547.25
Class PT1-I-30B (3) $ 969,547.25
Class PT1-I-31A (2) $ 2,281,030.43
Class PT1-I-31B (3) $ 2,281,030.43
Class PT1-I-32A (2) $ 2,159,668.95
Class PT1-I-32B (3) $ 2,159,668.95
Class PT1-I-33A (2) $ 2,045,010.39
Class PT1-I-33B (3) $ 2,045,010.39
Class PT1-I-34A (2) $ 1,936,580.58
Class PT1-I-34B (3) $ 1,936,580.58
Class PT1-I-35A (2) $ 1,833,930.95
Class PT1-I-35B (3) $ 1,833,930.95
Class PT1-I-36A (2) $ 1,737,253.63
Class PT1-I-36B (3) $ 1,737,253.63
Class PT1-I-37A (2) $ 1,645,913.94
Class PT1-I-37B (3) $ 1,645,913.94
Class PT1-I-38A (2) $ 1,559,582.95
Class PT1-I-38B (3) $ 1,559,582.95
Class PT1-I-39A (2) $ 1,477,973.00
Class PT1-I-39B (3) $ 1,477,973.00
Class PT1-I-40A (2) $ 1,400,808.08
Class PT1-I-40B (3) $ 1,400,808.08
Class PT1-I-41A (2) $ 1,327,828.28
Class PT1-I-41B (3) $ 1,327,828.28
Class PT1-I-42A (2) $ 1,258,858.06
Class PT1-I-42B (3) $ 1,258,858.06
Class PT1-I-43A (2) $ 1,193,636.67
Class PT1-I-43B (3) $ 1,193,636.67
Class PT1-I-44A (2) $ 1,131,949.61
Class PT1-I-44B (3) $ 1,131,949.61
Class PT1-I-45A (2) $ 1,073,599.16
Class PT1-I-45B (3) $ 1,073,599.16
Class PT1-I-46A (2) $ 1,018,398.16
Class PT1-I-46B (3) $ 1,018,398.16
Class PT1-I-47A (2) $ 966,168.46
Class PT1-I-47B (3) $ 966,168.46
Class PT1-I-48A (2) $ 916,748.08
Class PT1-I-48B (3) $ 916,748.08
Class PT1-I-49A (2) $ 869,978.65
Class PT1-I-49B (3) $ 869,978.65
Class PT1-I-50A (2) $ 825,711.96
Class PT1-I-50B (3) $ 825,711.96
Class PT1-I-51A (2) $ 783,809.66
Class PT1-I-51B (3) $ 783,809.66
Class PT1-I-52A (2) $ 744,139.87
Class PT1-I-52B (3) $ 744,139.87
Class PT1-I-53A (2) $ 706,580.40
Class PT1-I-53B (3) $ 706,580.40
Class PT1-I-54A (2) $ 671,012.28
Class PT1-I-54B (3) $ 671,012.28
Class PT1-I-55A (2) $ 637,325.98
Class PT1-I-55B (3) $ 637,325.98
Class PT1-I-56A (2) $ 605,425.57
Class PT1-I-56B (3) $ 605,425.57
Class PT1-I-57A (2) $ 575,200.25
Class PT1-I-57B (3) $ 575,200.25
Class PT1-I-58A (2) $ 546,747.04
Class PT1-I-58B (3) $ 546,747.04
Class PT1-I-59A (2) $ 520,630.47
Class PT1-I-59B (3) $ 520,630.47
Class PT1-I-60A (2) $10,574,730.79
Class PT1-I-60B (3) $10,574,730.79
Class PT1-II-1 (4) $32,539,195.63
Class PT1-II-2A (5) $ 3,615,518.37
Class PT1-II-2B (6) $ 3,615,518.37
Class PT1-II-3A (5) $ 4,452,547.10
Class PT1-II-3B (6) $ 4,452,547.10
Class PT1-II-4A (5) $ 5,282,417.88
Class PT1-II-4B (6) $ 5,282,417.88
Class PT1-II-5A (5) $ 6,098,457.31
Class PT1-II-5B (6) $ 6,098,457.31
Class PT1-II-6A (5) $ 6,892,624.11
Class PT1-II-6B (6) $ 6,892,624.11
Class PT1-II-7A (5) $ 7,657,802.76
Class PT1-II-7B (6) $ 7,657,802.76
Class PT1-II-8A (5) $ 8,385,845.16
Class PT1-II-8B (6) $ 8,385,845.16
Class PT1-II-9A (5) $ 9,069,368.02
Class PT1-II-9B (6) $ 9,069,368.02
Class PT1-II-10A (5) $ 9,698,708.65
Class PT1-II-10B (6) $ 9,698,708.65
Class PT1-II-11A (5) $10,221,342.38
Class PT1-II-11B (6) $10,221,342.38
Class PT1-II-12A (5) $ 9,878,069.77
Class PT1-II-12B (6) $ 9,878,069.77
Class PT1-II-13A (5) $ 9,421,950.98
Class PT1-II-13B (6) $ 9,421,950.98
Class PT1-II-14A (5) $ 8,987,118.87
Class PT1-II-14B (6) $ 8,987,118.87
Class PT1-II-15A (5) $ 8,577,030.79
Class PT1-II-15B (6) $ 8,577,030.79
Class PT1-II-16A (5) $ 8,180,937.56
Class PT1-II-16B (6) $ 8,180,937.56
Class PT1-II-17A (5) $ 7,803,403.21
Class PT1-II-17B (6) $ 7,803,403.21
Class PT1-II-18A (5) $ 7,448,932.49
Class PT1-II-18B (6) $ 7,448,932.49
Class PT1-II-19A (5) $ 7,110,047.85
Class PT1-II-19B (6) $ 7,110,047.85
Class PT1-II-20A (5) $ 6,793,891.00
Class PT1-II-20B (6) $ 6,793,891.00
Class PT1-II-21A (5) $ 6,483,449.29
Class PT1-II-21B (6) $ 6,483,449.29
Class PT1-II-22A (5) $ 6,215,094.40
Class PT1-II-22B (6) $ 6,215,094.40
Class PT1-II-23A (5) $ 6,300,228.04
Class PT1-II-23B (6) $ 6,300,228.04
Class PT1-II-24A (5) $12,918,721.74
Class PT1-II-24B (6) $12,918,721.74
Class PT1-II-25A (5) $12,149,492.38
Class PT1-II-25B (6) $12,149,492.38
Class PT1-II-26A (5) $10,309,365.06
Class PT1-II-26B (6) $10,309,365.06
Class PT1-II-27A (5) $ 5,127,979.10
Class PT1-II-27B (6) $ 5,127,979.10
Class PT1-II-28A (5) $ 4,244,067.94
Class PT1-II-28B (6) $ 4,244,067.94
Class PT1-II-29A (5) $ 1,454,986.94
Class PT1-II-29B (6) $ 1,454,986.94
Class PT1-II-30A (5) $ 1,283,739.75
Class PT1-II-30B (6) $ 1,283,739.75
Class PT1-II-31A (5) $ 3,020,223.57
Class PT1-II-31B (6) $ 3,020,223.57
Class PT1-II-32A (5) $ 2,859,533.55
Class PT1-II-32B (6) $ 2,859,533.55
Class PT1-II-33A (5) $ 2,707,718.61
Class PT1-II-33B (6) $ 2,707,718.61
Class PT1-II-34A (5) $ 2,564,150.92
Class PT1-II-34B (6) $ 2,564,150.92
Class PT1-II-35A (5) $ 2,428,236.55
Class PT1-II-35B (6) $ 2,428,236.55
Class PT1-II-36A (5) $ 2,300,229.87
Class PT1-II-36B (6) $ 2,300,229.87
Class PT1-II-37A (5) $ 2,179,290.56
Class PT1-II-37B (6) $ 2,179,290.56
Class PT1-II-38A (5) $ 2,064,983.05
Class PT1-II-38B (6) $ 2,064,983.05
Class PT1-II-39A (5) $ 1,956,926.50
Class PT1-II-39B (6) $ 1,956,926.50
Class PT1-II-40A (5) $ 1,854,755.42
Class PT1-II-40B (6) $ 1,854,755.42
Class PT1-II-41A (5) $ 1,758,125.72
Class PT1-II-41B (6) $ 1,758,125.72
Class PT1-II-42A (5) $ 1,666,804.94
Class PT1-II-42B (6) $ 1,666,804.94
Class PT1-II-43A (5) $ 1,580,447.83
Class PT1-II-43B (6) $ 1,580,447.83
Class PT1-II-44A (5) $ 1,498,770.39
Class PT1-II-44B (6) $ 1,498,770.39
Class PT1-II-45A (5) $ 1,421,510.84
Class PT1-II-45B (6) $ 1,421,510.84
Class PT1-II-46A (5) $ 1,348,421.34
Class PT1-II-46B (6) $ 1,348,421.34
Class PT1-II-47A (5) $ 1,279,266.04
Class PT1-II-47B (6) $ 1,279,266.04
Class PT1-II-48A (5) $ 1,213,830.42
Class PT1-II-48B (6) $ 1,213,830.42
Class PT1-II-49A (5) $ 1,151,904.85
Class PT1-II-49B (6) $ 1,151,904.85
Class PT1-II-50A (5) $ 1,093,293.04
Class PT1-II-50B (6) $ 1,093,293.04
Class PT1-II-51A (5) $ 1,037,811.84
Class PT1-II-51B (6) $ 1,037,811.84
Class PT1-II-52A (5) $ 985,286.63
Class PT1-II-52B (6) $ 985,286.63
Class PT1-II-53A (5) $ 935,555.60
Class PT1-II-53B (6) $ 935,555.60
Class PT1-II-54A (5) $ 888,461.22
Class PT1-II-54B (6) $ 888,461.22
Class PT1-II-55A (5) $ 843,858.52
Class PT1-II-55B (6) $ 843,858.52
Class PT1-II-56A (5) $ 801,620.43
Class PT1-II-56B (6) $ 801,620.43
Class PT1-II-57A (5) $ 761,600.25
Class PT1-II-57B (6) $ 761,600.25
Class PT1-II-58A (5) $ 723,926.46
Class PT1-II-58B (6) $ 723,926.46
Class PT1-II-59A (5) $ 689,346.53
Class PT1-II-59B (6) $ 689,346.53
Class PT1-II-60A (5) $14,001,589.21
Class PT1-II-60B (6) $14,001,589.21
Class PT1-R (7) $ 100.00
--------------------
(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 10.00%.
(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) 10.00%.
(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 10.00%.
(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) 10.00%.
(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 Master Servicing 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.
Corresponding
Pooling-Tier Pooling-Tier REMIC-2 Corresponding Pooling-Tier Corresponding
Pooling-Tier REMIC-2 REMIC-2 Initial Principal Pooling-Tier REMIC-1 Regular Scheduled Crossover
Interest Interest Rate Amount REMIC-2 IO Interest Interest Distribution Date
-------------------- ------------- -------------------- ------------------- ---------------- -------------------
Class PT2-I-1 (1) $ 24,575,148.46 N/A N/A N/A
Class PT2-I-2A (2) $ 2,730,628.13 Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ 2,730,628.13 N/A N/A N/A
Class PT2-I-3A (2) $ 3,362,795.90 Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ 3,362,795.90 N/A N/A N/A
Class PT2-I-4A (2) $ 3,989,557.62 Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ 3,989,557.62 N/A N/A N/A
Class PT2-I-5A (2) $ 4,605,873.19 Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ 4,605,873.19 N/A N/A N/A
Class PT2-I-6A (2) $ 5,205,669.39 Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ 5,205,669.39 N/A N/A N/A
Class PT2-I-7A (2) $ 5,783,572.24 Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ 5,783,572.24 N/A N/A N/A
Class PT2-I-8A (2) $ 6,333,427.84 Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $ 6,333,427.84 N/A N/A N/A
Class PT2-I-9A (2) $ 6,849,659.98 Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $ 6,849,659.98 N/A N/A N/A
Class PT2-I-10A (2) $ 7,324,970.85 Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ 7,324,970.85 N/A N/A N/A
Class PT2-I-11A (2) $ 7,719,691.12 Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ 7,719,691.12 N/A N/A N/A
Class PT2-I-12A (2) $ 7,460,433.73 Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ 7,460,433.73 N/A N/A N/A
Class PT2-I-13A (2) $ 7,115,949.02 Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ 7,115,949.02 N/A N/A N/A
Class PT2-I-14A (2) $ 6,787,541.13 Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ 6,787,541.13 N/A N/A N/A
Class PT2-I-15A (2) $ 6,477,821.21 Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ 6,477,821.21 N/A N/A N/A
Class PT2-I-16A (2) $ 6,178,670.94 Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ 6,178,670.94 N/A N/A N/A
Class PT2-I-17A (2) $ 5,893,537.29 Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ 5,893,537.29 N/A N/A N/A
Class PT2-I-18A (2) $ 5,625,822.51 Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ 5,625,822.51 N/A N/A N/A
Class PT2-I-19A (2) $ 5,369,879.15 Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ 5,369,879.15 N/A N/A N/A
Class PT2-I-20A (2) $ 5,131,101.00 Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ 5,131,101.00 N/A N/A N/A
Class PT2-I-21A (2) $ 4,896,639.21 Class PT2-I-IO-21 N/A N/A
Class PT2-I-21B (3) $ 4,896,639.21 N/A N/A N/A
Class PT2-I-22A (2) $ 4,693,963.60 Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ 4,693,963.60 N/A N/A N/A
Class PT2-I-23A (2) $ 4,758,260.96 Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ 4,758,260.96 N/A N/A N/A
Class PT2-I-24A (2) $ 9,756,892.76 Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ 9,756,892.76 N/A N/A N/A
Class PT2-I-25A (2) $ 9,175,930.62 Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ 9,175,930.62 N/A N/A N/A
Class PT2-I-26A (2) $ 7,786,170.44 Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ 7,786,170.44 N/A N/A N/A
Class PT2-I-27A (2) $ 3,872,917.40 Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ 3,872,917.40 N/A N/A N/A
Class PT2-I-28A (2) $ 3,205,341.56 Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ 3,205,341.56 N/A N/A N/A
Class PT2-I-29A (2) $ 1,098,882.06 Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ 1,098,882.06 N/A N/A N/A
Class PT2-I-30A (2) $ 969,547.25 Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ 969,547.25 N/A N/A N/A
Class PT2-I-31A (2) $ 2,281,030.43 Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ 2,281,030.43 N/A N/A N/A
Class PT2-I-32A (2) $ 2,159,668.95 Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ 2,159,668.95 N/A N/A N/A
Class PT2-I-33A (2) $ 2,045,010.39 Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ 2,045,010.39 N/A N/A N/A
Class PT2-I-34A (2) $ 1,936,580.58 Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ 1,936,580.58 N/A N/A N/A
Class PT2-I-35A (2) $ 1,833,930.95 Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ 1,833,930.95 N/A N/A N/A
Class PT2-I-36A (2) $ 1,737,253.63 Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ 1,737,253.63 N/A N/A N/A
Class PT2-I-37A (2) $ 1,645,913.94 Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ 1,645,913.94 N/A N/A N/A
Class PT2-I-38A (2) $ 1,559,582.95 Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ 1,559,582.95 N/A N/A N/A
Class PT2-I-39A (2) $ 1,477,973.00 Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ 1,477,973.00 N/A N/A N/A
Class PT2-I-40A (2) $ 1,400,808.08 Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ 1,400,808.08 N/A N/A N/A
Class PT2-I-41A (2) $ 1,327,828.28 Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ 1,327,828.28 N/A N/A N/A
Class PT2-I-42A (2) $ 1,258,858.06 Class PT2-I-IO-42 N/A N/A
Class PT2-I-42B (3) $ 1,258,858.06 N/A N/A N/A
Class PT2-I-43A (2) $ 1,193,636.67 Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ 1,193,636.67 N/A N/A N/A
Class PT2-I-44A (2) $ 1,131,949.61 Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ 1,131,949.61 N/A N/A N/A
Class PT2-I-45A (2) $ 1,073,599.16 Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ 1,073,599.16 N/A N/A N/A
Class PT2-I-46A (2) $ 1,018,398.16 Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ 1,018,398.16 N/A N/A N/A
Class PT2-I-47A (2) $ 966,168.46 Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ 966,168.46 N/A N/A N/A
Class PT2-I-48A (2) $ 916,748.08 Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ 916,748.08 N/A N/A N/A
Class PT2-I-49A (2) $ 869,978.65 Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ 869,978.65 N/A N/A N/A
Class PT2-I-50A (2) $ 825,711.96 Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ 825,711.96 N/A N/A N/A
Class PT2-I-51A (2) $ 783,809.66 Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ 783,809.66 N/A N/A N/A
Class PT2-I-52A (2) $ 744,139.87 Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ 744,139.87 N/A N/A N/A
Class PT2-I-53A (2) $ 706,580.40 Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ 706,580.40 N/A N/A N/A
Class PT2-I-54A (2) $ 671,012.28 Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ 671,012.28 N/A N/A N/A
Class PT2-I-55A (2) $ 637,325.98 Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ 637,325.98 N/A N/A N/A
Class PT2-I-56A (2) $ 605,425.57 Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ 605,425.57 N/A N/A N/A
Class PT2-I-57A (2) $ 575,200.25 Class PT2-I-IO-57 N/A N/A
Class PT2-I-57B (3) $ 575,200.25 N/A N/A N/A
Class PT2-I-58A (2) $ 546,747.04 Class PT2-I-IO-58 N/A N/A
Class PT2-I-58B (3) $ 546,747.04 N/A N/A N/A
Class PT2-I-59A (2) $ 520,630.47 Class PT2-I-IO-59 N/A N/A
Class PT2-I-59B (3) $ 520,630.47 N/A N/A N/A
Class PT2-I-60A (2) $ 10,574,730.79 Class PT2-I-IO-60 N/A N/A
Class PT2-I-60B (3) $ 10,574,730.79 N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A April 2007
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A May 2007
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A June 2007
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A July 2007
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A August 2007
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A September 2007
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A October 2007
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A November 2007
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A December 2007
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A January 2008
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A February 2008
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A March 2008
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A April 2008
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A May 2008
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A June 2008
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A July 2008
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A August 2008
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A September 2008
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A October 2008
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A November 2008
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A December 2008
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A January 2009
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A February 2009
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A March 2009
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A April 2009
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A May 2009
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A June 2009
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A July 2009
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A August 2009
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A September 2009
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A October 2009
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A November 2009
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A December 2009
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A January 2010
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A February 2010
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A March 2010
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A August 2010
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A September 2010
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A October 2010
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A November 2010
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A December 2010
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A January 2011
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A February 2011
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A March 2011
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A April 2011
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A May 2011
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A June 2011
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A July 2011
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A August 2011
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A September 2011
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A October 2011
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A November 2011
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A December 2011
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A January 2012
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A February 2012
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A March 2012
Class PT2-I-IO-58 (4) (4) N/A Class PT1-I-58A April 2012
Class PT2-I-IO-59 (4) (4) N/A Class PT1-I-59A May 2012
Class PT2-I-IO-60 (4) (4) N/A Class PT1-I-60A June 2012
Class PT2-II-1 (5) $ 32,539,195.63 N/A N/A N/A
Class PT2-II-2A (6) $ 3,615,518.37 Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $ 3,615,518.37 N/A N/A N/A
Class PT2-II-3A (6) $ 4,452,547.10 Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $ 4,452,547.10 N/A N/A N/A
Class PT2-II-4A (6) $ 5,282,417.88 Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $ 5,282,417.88 N/A N/A N/A
Class PT2-II-5A (6) $ 6,098,457.31 Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $ 6,098,457.31 N/A N/A N/A
Class PT2-II-6A (6) $ 6,892,624.11 Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $ 6,892,624.11 N/A N/A N/A
Class PT2-II-7A (6) $ 7,657,802.76 Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $ 7,657,802.76 N/A N/A N/A
Class PT2-II-8A (6) $ 8,385,845.16 Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $ 8,385,845.16 N/A N/A N/A
Class PT2-II-9A (6) $ 9,069,368.02 Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $ 9,069,368.02 N/A N/A N/A
Class PT2-II-10A (6) $ 9,698,708.65 Class PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $ 9,698,708.65 N/A N/A N/A
Class PT2-II-11A (6) $ 10,221,342.38 Class PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $ 10,221,342.38 N/A N/A N/A
Class PT2-II-12A (6) $ 9,878,069.77 Class PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $ 9,878,069.77 N/A N/A N/A
Class PT2-II-13A (6) $ 9,421,950.98 Class PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $ 9,421,950.98 N/A N/A N/A
Class PT2-II-14A (6) $ 8,987,118.87 Class PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $ 8,987,118.87 N/A N/A N/A
Class PT2-II-15A (6) $ 8,577,030.79 Class PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $ 8,577,030.79 N/A N/A N/A
Class PT2-II-16A (6) $ 8,180,937.56 Class PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $ 8,180,937.56 N/A N/A N/A
Class PT2-II-17A (6) $ 7,803,403.21 Class PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $ 7,803,403.21 N/A N/A N/A
Class PT2-II-18A (6) $ 7,448,932.49 Class PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $ 7,448,932.49 N/A N/A N/A
Class PT2-II-19A (6) $ 7,110,047.85 Class PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $ 7,110,047.85 N/A N/A N/A
Class PT2-II-20A (6) $ 6,793,891.00 Class PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $ 6,793,891.00 N/A N/A N/A
Class PT2-II-21A (6) $ 6,483,449.29 Class PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $ 6,483,449.29 N/A N/A N/A
Class PT2-II-22A (6) $ 6,215,094.40 Class PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $ 6,215,094.40 N/A N/A N/A
Class PT2-II-23A (6) $ 6,300,228.04 Class PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $ 6,300,228.04 N/A N/A N/A
Class PT2-II-24A (6) $ 12,918,721.74 Class PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $ 12,918,721.74 N/A N/A N/A
Class PT2-II-25A (6) $ 12,149,492.38 Class PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $ 12,149,492.38 N/A N/A N/A
Class PT2-II-26A (6) $ 10,309,365.06 Class PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $ 10,309,365.06 N/A N/A N/A
Class PT2-II-27A (6) $ 5,127,979.10 Class PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $ 5,127,979.10 N/A N/A N/A
Class PT2-II-28A (6) $ 4,244,067.94 Class PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $ 4,244,067.94 N/A N/A N/A
Class PT2-II-29A (6) $ 1,454,986.94 Class PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $ 1,454,986.94 N/A N/A N/A
Class PT2-II-30A (6) $ 1,283,739.75 Class PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $ 1,283,739.75 N/A N/A N/A
Class PT2-II-31A (6) $ 3,020,223.57 Class PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $ 3,020,223.57 N/A N/A N/A
Class PT2-II-32A (6) $ 2,859,533.55 Class PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $ 2,859,533.55 N/A N/A N/A
Class PT2-II-33A (6) $ 2,707,718.61 Class PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $ 2,707,718.61 N/A N/A N/A
Class PT2-II-34A (6) $ 2,564,150.92 Class PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ 2,564,150.92 N/A N/A N/A
Class PT2-II-35A (6) $ 2,428,236.55 Class PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $ 2,428,236.55 N/A N/A N/A
Class PT2-II-36A (6) $ 2,300,229.87 Class PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $ 2,300,229.87 N/A N/A N/A
Class PT2-II-37A (6) $ 2,179,290.56 Class PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $ 2,179,290.56 N/A N/A N/A
Class PT2-II-38A (6) $ 2,064,983.05 Class PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $ 2,064,983.05 N/A N/A N/A
Class PT2-II-39A (6) $ 1,956,926.50 Class PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $ 1,956,926.50 N/A N/A N/A
Class PT2-II-40A (6) $ 1,854,755.42 Class PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $ 1,854,755.42 N/A N/A N/A
Class PT2-II-41A (6) $ 1,758,125.72 Class PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $ 1,758,125.72 N/A N/A N/A
Class PT2-II-42A (6) $ 1,666,804.94 Class PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $ 1,666,804.94 N/A N/A N/A
Class PT2-II-43A (6) $ 1,580,447.83 Class PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $ 1,580,447.83 N/A N/A N/A
Class PT2-II-44A (6) $ 1,498,770.39 Class PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $ 1,498,770.39 N/A N/A N/A
Class PT2-II-45A (6) $ 1,421,510.84 Class PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $ 1,421,510.84 N/A N/A N/A
Class PT2-II-46A (6) $ 1,348,421.34 Class PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $ 1,348,421.34 N/A N/A N/A
Class PT2-II-47A (6) $ 1,279,266.04 Class PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $ 1,279,266.04 N/A N/A N/A
Class PT2-II-48A (6) $ 1,213,830.42 Class PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ 1,213,830.42 N/A N/A N/A
Class PT2-II-49A (6) $ 1,151,904.85 Class PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ 1,151,904.85 N/A N/A N/A
Class PT2-II-50A (6) $ 1,093,293.04 Class PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ 1,093,293.04 N/A N/A N/A
Class PT2-II-51A (6) $ 1,037,811.84 Class PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ 1,037,811.84 N/A N/A N/A
Class PT2-II-52A (6) $ 985,286.63 Class PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ 985,286.63 N/A N/A N/A
Class PT2-II-53A (6) $ 935,555.60 Class PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ 935,555.60 N/A N/A N/A
Class PT2-II-54A (6) $ 888,461.22 Class PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ 888,461.22 N/A N/A N/A
Class PT2-II-55A (6) $ 843,858.52 Class PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ 843,858.52 N/A N/A N/A
Class PT2-II-56A (6) $ 801,620.43 Class PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ 801,620.43 N/A N/A N/A
Class PT2-II-57A (6) $ 761,600.25 Class PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ 761,600.25 N/A N/A N/A
Class PT2-II-58A (6) $ 723,926.46 Class PT2-II-IO-58 N/A N/A
Class PT2-II-58B (7) $ 723,926.46 N/A N/A N/A
Class PT2-II-59A (6) $ 689,346.53 Class PT2-II-IO-59 N/A N/A
Class PT2-II-59B (7) $ 689,346.53 N/A N/A N/A
Class PT2-II-60A (6) $ 14,001,589.21 Class PT2-II-IO-60 N/A N/A
Class PT2-II-60B (7) $ 14,001,589.21 N/A N/A N/A
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A April 2007
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A May 2007
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A June 2007
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A July 2007
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A August 2007
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A September 2007
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A October 2007
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A November 2007
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A December 2007
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A January 2008
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A February 2008
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A March 2008
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A April 2008
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A May 2008
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A June 2008
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A July 2008
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A August 2008
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A September 2008
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A October 2008
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A November 2008
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A December 2008
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A January 2009
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A February 2009
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A March 2009
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A April 2009
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A May 2009
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A June 2009
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A July 2009
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A August 2009
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A September 2009
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A October 2009
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A November 2009
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A December 2009
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A January 2010
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A February 2010
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A March 2010
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A August 2010
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A September 2010
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A October 2010
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A November 2010
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A December 2010
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A January 2011
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A February 2011
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A March 2011
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A April 2011
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A May 2011
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A June 2011
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A July 2011
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A August 2011
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A September 2011
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A October 2011
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A November 2011
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A December 2011
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A January 2012
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A February 2012
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A March 2012
Class PT2-II-IO-58 (4) (4) N/A Class PT1-II-58A April 2012
Class PT2-II-IO-59 (4) (4) N/A Class PT1-II-59A May 2012
Class PT2-II-IO-60 (4) (4) N/A Class PT1-II-60A June 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 Balance of A-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2A (1) 1/2 initial Class Certificate Balance of A-2A
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2B (1) 1/2 initial Class Certificate Balance of A-2B
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2C (1) 1/2 initial Class Certificate Balance of A-2C
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2D (1) 1/2 initial Class Certificate Balance of A-2D
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-4 (1) 1/2 initial Class Certificate Balance of M-4
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-5 (1) 1/2 initial Class Certificate Balance of M-5
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-6 (1) 1/2 initial Class Certificate Balance of M-6
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-7 (1) 1/2 initial Class Certificate Balance of M-7
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-8 (1) 1/2 initial Class Certificate Balance of M-8
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-9 (1) 1/2 initial Class Certificate Balance of M-9
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 and Class
LT-M-9 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 Upper-Tier Initial Principal Corresponding Class of
REMIC Interest Interest Rate Upper-Tier Amount Certificates
-------------- ------------- ----------------- ----------------------
Class A-1 (1) $ 370,801,000 Class A-1
Class A-2A (2) $ 216,267,000 Class A-2A
Class A-2B (2) $ 50,045,000 Class A-2B
Class A-2C (2) $ 74,161,000 Class A-2C
Class A-2D (2) $ 28,668,000 Class A-2D
Class M-1 (3) $ 42,961,000 Class M-1
Class M-2 (3) $ 39,423,000 Class M-2
Class M-3 (3) $ 24,261,000 Class M-3
Class M-4 (3) $ 21,228,000 Class M-4
Class M-5 (3) $ 19,206,000 Class M-5
Class M-6 (3) $ 17,184,000 Class M-6
Class M-7 (3) $ 18,196,000 Class M-7
Class M-8 (3) $ 16,173,000 Class M-8
Class M-9 (3) $ 15,162,000 Class M-9
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
$57,114,294.09 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 Designation Class Pass-Through Rate Class Certificate Balance
----------------- ----------------------- -------------------------
Class A-1(19) (1) $ 370,801,000
Class A-2A(19) (2) $ 216,267,000
Class A-2B(19) (3) $ 50,045,000
Class A-2C(19) (4) $ 74,161,000
Class A-2D(19) (5) $ 28,668,000
Class M-1(19) (6) $ 42,961,000
Class M-2(19) (7) $ 39,423,000
Class M-3(19) (8) $ 24,261,000
Class M-4(19) (9) $ 21,228,000
Class M-5(19) (10) $ 19,206,000
Class M-6(19) (11) $ 17,184,000
Class M-7(19) (12) $ 18,196,000
Class M-8(19) (13) $ 16,173,000
Class M-9(19) (14) $ 15,162,000
Class X (15) 0(15)
Class R (16) $ 50
Class RC (17) $ 100
Class RX (18) $ 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 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 to the LIBOR
Certificates of Basis Risk Carry Forward Amounts 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 or received 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.
(16) 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.
(17) The Class RC Certificates do not have an interest rate. The Class RC
Certificates represent the residual interest in Pooling-Tier REMIC-1.
(18) The Class RX Certificates do not have an interest rate. The Class RX
Certificates represent the residual interest in the Class X REMIC.
(19) 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, (e) the Class C Certificates will be a 1% Percentage Interest in
such Class and (f) 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 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..................... Residual Certificates, Class C, 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 and Class M Certificates.
Offered Certificates............... All Classes of Certificates other
than the Private Certificates and the Class
C Certificates.
Physical Certificates.............. Class P, Class X and Residual Certificates.
Private Certificates............... 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.
Subordinated Certificates.......... Class M 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:
Aames Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreements, dated as of April 1, 2006, by and between Aames Capital
Corporation and the Sponsor.
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 the
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.
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 Servicer 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 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 Servicer, the Master
Servicer, the Securities Administrator, the Depositor, the Trustee (or
co-trustee) or each 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.
Bulk Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to the Bulk Purchase Agreements and identified as a "Bulk Mortgage
Loan" on the Mortgage Loan Schedule.
Bulk Purchase Agreement: Collectively, the Aames Purchase
Agreement, the Decision One Purchase Agreement, the New Century Purchase
Agreement, the NovaStar Purchase Agreement and the Senderra Purchase Agreement.
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 the
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, Class P and Class C 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) 46.40% 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 C Certificates: All Certificates bearing the class
designation of "Class C."
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-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), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 54.90% 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-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-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 Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 62.70% 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-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 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 Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date) and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 67.50% 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-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 Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (E) 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) 71.70% 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-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 Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) 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 (F) 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) 75.50% 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 Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) 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), (F) 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 (G) 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) 78.90% 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-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 Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) 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), (F) 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), (G) 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 (H) 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) 82.50% 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 Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) 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), (F) 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), (G) 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), (H) 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 (I) 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) 85.70% 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-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 Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) 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), (F) 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), (G) 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), (H) 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), (I) 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 (J) 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) 88.70% 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 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: April 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 the
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.
Conduit Mortgage Loan: Each Mortgage Loan purchased by the
Sponsor pursuant to its mortgage conduit program and identified as a "Conduit
Mortgage Loan" on the Mortgage Loan Schedule.
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-HE2, (ii) for
all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager GSAMP 07-HE2, 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-HE2, 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
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
the Servicer, a Cumulative Loss Event occurs if the Cumulative Realized Loss
Percentage for the Servicer exceeds the applicable percentage set forth below
with respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------- --------------------------------------------
April 2010 through March 2011 4.75% of the Cut-off Date Pool Principal
Balance of the Mortgage Loans serviced by
the Servicer
--------------------------------------------------------------------------------
April 2011 through March 2012 7.00% of the Cut-off Date Pool Principal
Balance of the Mortgage Loans serviced by
the Servicer
--------------------------------------------------------------------------------
April 2012 through March 2013 9.00% of the Cut-off Date Pool Principal
Balance of the Mortgage Loans serviced by
the Servicer
--------------------------------------------------------------------------------
April 2013 through March 2014 10.25% of the Cut-off Date Pool Principal
Balance of the Mortgage Loans serviced by
the Servicer
--------------------------------------------------------------------------------
April 2014 and thereafter 10.50% of the Cut-off Date Pool Principal
Balance of the Mortgage Loans serviced by
the 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 applicable Custodian or which at any
time comes into the possession of the applicable Custodian.
Custodian: Deutsche Bank National Trust Company, a national
banking association, and its successors in interest or U.S. Bank National
Association, a national banking association, and its successors in interest, as
applicable.
Cut-off Date: March 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 Original
Loan Sellers or the Servicer as of the Cut-off Date to the Depositor setting
forth the following information with respect to each Mortgage Loan: (1) the
applicable Original Loan Seller'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) with respect to
each MERS Designated Mortgage Loan, the MERS identification number; (45) a code
indicating if a Mortgage Loan is or has had a 30-Day Delinquency; and (46) a
code indicating if the Mortgage Loan is an Interest Only Mortgage Loan. With
respect to the Mortgage Loans in the aggregate: (1) the number of Mortgage
Loans; (2) the current aggregate outstanding principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage Loans;
and (4) the weighted average maturity of the Mortgage Loans.
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.
Decision One Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of May 1, 2006, by and between the Sponsor and
Decision One Mortgage Company, LLC.
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-HE2 Mortgage Pass-Through
Certificates, Series 2007-HE2." 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
April 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 Servicer, 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") 2007-05, 72 Fed. Reg. 13130 (2007) (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-HE2 Mortgage Pass-Through Certificates,
Series 2007-HE2." 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 or the Sponsor as contemplated by this Agreement), a
determination made by the Servicer that all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The 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 March 2037 and for the Class
X Certificates and the Residual Certificates in the Distribution Date occurring
in March 2047.
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-HE2, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicer, 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
each 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 April 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 April 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.
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 Reuters Page LIBOR01 as of 11:00 a.m.
(London time) on such date; provided, however, that if such rate does not appear
on Reuters Page LIBOR01, 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 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-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 C Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class C Certificates.
Master Servicer: Xxxxx Fargo, and its successor in interest, and
if a successor master servicer is appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master 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 0.0075%.
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 (a) the
applicable Original Loan Seller 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 applicable Original Loan Seller, in
accordance with the MERS Procedures Manual and (b) the applicable Original Loan
Seller 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 Servicer 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 applicable Original Loan Seller'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) with respect to each MERS Designated Mortgage Loan, the
MERS identification number; (45) a code indicating whether the Mortgage Loan is
a Group I Mortgage Loan or a Group II Mortgage Loan; (46) a code indicating if a
Mortgage Loan is or has had a 30-Day Delinquency; (47) a code indicating if the
Mortgage Loan is an Interest Only Mortgage Loan; (48) a code indicating whether
such Mortgage Loan is a Home Loan; (49) the Original Purchase Date; (50) the
applicable Custodian; (51) the Servicer; and (52) an identification of the
Mortgage Loan as a Bulk Mortgage Loan or a Conduit Mortgage Loan. With respect
to the Mortgage Loans in the aggregate: (1) the number of Mortgage Loans; (2)
the current aggregate outstanding principal balance of the Mortgage Loans; (3)
the weighted average Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average maturity of the Mortgage Loans.
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).
New Century Purchase Agreement: The Second Amended and Restated
Mortgage Loan Purchase and Warranties Agreements, dated as of May 1, 2006, by
and between NC Capital Corporation and the Sponsor.
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.
NMWHFIT: A "Non-Mortgage Widely Held Fixed Investment Trust" as
that term is defined in Treasury Regulations section 1.671-5(b)(12) or successor
provisions.
Non-Permitted Transferee: As defined in Section 8.11(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 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 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.
NovaStar Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreements, dated as of May 1, 2006, by and between NovaStar
Mortgage, Inc. and the Sponsor.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of the
Servicer or the Master Servicer, as applicable, with responsibility for the
servicing of the Mortgage Loans required to be serviced by the 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 the 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
the Servicer or the Master Servicer of the Mortgage Loans, (ii) does not have
any material direct or indirect financial interest in the Servicer or the Master
Servicer of the Mortgage Loans or in an Affiliate of the Servicer and (iii) is
not connected with the 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 Loan Sellers: With respect to each Conduit Mortgage
Loan, the Person who sold such Conduit Mortgage Loan to the Sponsor and with
respect to each Bulk Mortgage Loan, the Person who sold such Bulk Mortgage Loan
to the Sponsor.
Original Purchase Date: With respect to any Mortgage Loan, the
date on which the applicable Original Loan Seller sold such Mortgage Loan to the
Sponsor pursuant to the applicable 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 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, 0.235%; Class A-2A Certificates, 0.120%;
Class A-2B Certificates, 0.210%; Class A-2C Certificates, 0.270%; Class A-2D
Certificates, 0.370%; Class M-1 Certificates, 0.500%; Class M-2 Certificates,
0.550%; Class M-3 Certificates, 0.900%; Class M-4 Certificates, 1.250%; Class
M-5 Certificates, 1.650%; Class M-6 Certificates, 2.200%; Class M-7
Certificates, 2.250%; Class M-8 Certificates, 2.250%; and Class M-9
Certificates, 2.250%. On the first possible Optional Termination Date, the
Pass-Through Margins shall increase to: Class A-1 Certificates, 0.470%; Class
A-2A Certificates, 0.240%; Class A-2B Certificates, 0.420%; Class A-2C
Certificates, 0.540%; Class A-2D Certificates, 0.740%; Class M-1 Certificates,
0.750%; Class M-2 Certificates, 0.825%; Class M-3 Certificates, 1.350%; Class
M-4 Certificates, 1.875%; Class M-5 Certificates, 2.475%; Class M-6
Certificates, 3.300%; Class M-7 Certificates, 3.375%; Class M-8 Certificates,
3.375%; and Class M-9 Certificates, 3.375%.
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 the Servicer, the Trustee, the Securities
Administrator or any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 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 "AAA/V1+" 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 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 the 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 Servicer on or
prior to the related Determination Date or advanced by the 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 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 April 17,
2007, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
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 Servicer.
Realized Losses: With respect to any date of determination and
any Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid
principal balance of such Liquidated Mortgage Loan together with accrued and
unpaid interest thereon exceeds (b) the Liquidation Proceeds with respect
thereto net of the expenses incurred by the Servicer in connection with the
liquidation of such Liquidated Mortgage Loan and net of 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 two Business Days immediately preceding such
Distribution Date.
REO Disposition: The final sale by the 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 April 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, repurchased
by the Sponsor, 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 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 the Servicer's, the
Master Servicer's or the Trustee's, as the case may be, enforcement of the
Sponsor'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
Servicer to each 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.
Reuters Page LIBOR01: The display page currently so designated on
the Reuters 3000 Xtra Service (or such other page as may replace that page on
that service or any successor service for displaying comparable rates or
prices).
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 one Business Day immediately preceding such Distribution Date,
and ending on such Distribution Date.
Senderra Purchase Agreement: The Flow Mortgage Loan Purchase and
Warranties Agreement, as amended by Amendment No. 1, dated as of June 28, 2006,
by and between the Sponsor and Senderra Funding LLC.
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, 53.60%.
Servicer: Avelo Mortgage, L.L.C., a Delaware limited liability
company, and its successors in interest.
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 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. The Servicer shall not 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 the Servicer, each Mortgage Loan
serviced by the 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 the 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 Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the applicable 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 the 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 the 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 Servicer by the Depositor or its designee, on which servicing of the
applicable Mortgage Loans was transferred to the Servicer.
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 5.65% of the Cut-off Date Pool Principal Balance. On and
after the Stepdown Date, an amount equal to 11.30% 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-HE2, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Securities Administrator, the Servicer, each 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 Servicer on or prior to the related
Determination Date or advanced by the 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
April 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 the Servicer, a Subservicer, the
Trustee or any 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
the 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 the 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 for a Deleted Mortgage Loan pursuant to the terms of the
Representations and Warranties Agreement.
Substitution Adjustment Amount: Any amount required to be paid in
connection with a Substitute Mortgage Loan pursuant to the Representations and
Warranties Agreement.
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).
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 Servicer on or prior to the related Determination Date or
advanced by the Servicer 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,
payable to the Swap Provider 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 16.00% 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
------------------------- ------------------------------------------------------------
April 2009 - March 2010 1.90% for the first month,
plus an additional 1/12th of 2.35% for each month thereafter
April 2010 - March 2011 4.25% for the first month,
plus an additional 1/12th of 2.40% for each month thereafter
April 2011 - March 2012 6.65% for the first month,
plus an additional 1/12th of 1.95% for each month thereafter
April 2012 - March 2013 8.60% for the first month,
plus an additional 1/12th of 1.10% for each month thereafter
April 2013 - March 2014 9.70% for the first month,
plus an additional 1/12th of 0.10% for each month thereafter
April 2014 and thereafter 9.80%
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. Bank National Association: U.S. Bank National Association, a
national banking association, and its successors in interest.
U.S. Person: (i) A citizen or resident of the United States; (ii)
a corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the Holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, 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. The Class C
Certificates shall have no Voting Rights.
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.
WHFIT: A "Widely Held Fixed Investment Trust" as that term is
defined in Treasury Regulations section 1.671-5(b)(22) or successor provisions.
WHFIT Regulations: Treasury Regulations section 1.671-5, as
amended.
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
applicable 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 the copy of
the Mortgage Note), with all applicable riders, bearing all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee, 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
state law does not so allow and the Trustee (and applicable Custodian)
is advised by the applicable Original Loan Seller that state law does
not so allow. If the Mortgage Loan was acquired by the applicable
Original Loan Seller 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 all applicable riders, with
evidence of recording thereon. If in connection with any Mortgage Loan,
the applicable Original Loan Seller, 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 applicable Original
Loan Seller, (to the extent that it has not previously delivered the
same to the Sponsor or the applicable Custodian) shall deliver or cause
to be delivered to the applicable 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
applicable Original Loan Seller (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
applicable Custodian upon receipt thereof by the applicable Original
Loan Seller; 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 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 applicable
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 applicable
Original Loan Seller (to the extent that it has not previously delivered
the same to the Sponsor or the applicable Custodian) shall deliver or
cause to be delivered to the applicable 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 applicable Original Loan Seller (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
applicable Custodian upon receipt thereof by the applicable Original
Loan Seller; or (B) in the case of an intervening Assignment of Mortgage
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 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; 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 one or
more lost note affidavits are provided to cover multiple missing Mortgage Notes
on the Closing Date, the Depositor shall use reasonable efforts to cause the
Sponsor to deliver to the applicable Custodian the applicable individual lost
note affidavits within ten (10) Business Days of the Closing Date. If the
Sponsor 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 applicable Custodian or exception report noting such missing
document from the applicable Custodian, shall notify the Sponsor to take such
remedial actions, including, without limitation, the repurchase by the Sponsor
of any Conduit Mortgage Loan or Bulk Mortgage Loan, as applicable, within 180
days of the Closing Date.
The Depositor shall use reasonable efforts to cause the Sponsor
to deliver to the applicable Custodian the applicable recorded document promptly
upon receipt from the respective recording office but in no event later than 180
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.
The Depositor shall use reasonable efforts to cause the Sponsor
to forward to the applicable Custodian additional documents evidencing an
assumption, modification, consolidation or extension of a Mortgage Loan approved
by the Sponsor in accordance with the terms of the applicable Purchase
Agreement. All such Mortgage Loan Documents held by the applicable Custodian as
to each applicable Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall use
reasonable efforts to cause the Sponsor to deliver to the applicable Custodian
Assignments of Mortgages, in blank, for each Mortgage Loan (except with respect
to each MERS Designated Mortgage Loan). The Depositor shall use reasonable
efforts to cause the Sponsor to provide the Assignments of Mortgage with
completed recording information to the Servicer in a reasonably acceptable
manner. In the event that any Assignment of Mortgage is not recorded or is
improperly recorded, the Servicer will have no liability directly resulting from
such lack of recordation or such improper recordation and solely resulting from
any failure to receive notices made with regard to such Assignment of Mortgage,
except for any liability incurred by reason of willful misfeasance, bad faith or
negligence by the Servicer in the performance of its duties hereunder or by
reason of reckless disregard of its obligations and duties hereunder. 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 Sponsor, pursuant to the applicable
Purchase Agreement, at no expense to the Trust Fund, the Master Servicer, the
Securities Administrator, the Servicer, the applicable Custodian, the Trustee or
the Depositor 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 shall not be an expense of the Trustee, the 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, (ii) if such Mortgage Loan is a MERS Designated Mortgage
Loan or (iii) if the Rating Agencies have each notified the Depositor in writing
that not recording any such Assignments of Mortgage would not cause the initial
ratings on any LIBOR Certificates to be downgraded or withdrawn; provided,
however, that the Trustee nor the Servicer shall be held responsible or liable
for any loss that occurs because an Assignment of Mortgage was not recorded, but
only to the extent the Servicer does not have prior knowledge of the act or
omission that causes such loss. Unless the Depositor gives the Trustee and the
Servicer notice to the contrary, the Depositor is deemed to have given the
Servicer and the Trustee notice that the condition set forth in clause (iii)
above is applicable. If the Assignment of Mortgage is to be recorded, the
Depositor shall use reasonable efforts to cause the Sponsor to assign the
Mortgage at the Sponsor's expense to "LaSalle Bank National Association, as
trustee under the Pooling and Servicing Agreement dated as of March 1, 2007,
GSAMP Trust 2007-HE2." In the event that any such assignment is lost or returned
unrecorded because of a defect therein with respect to any Mortgage Loan, and
such defect is not cured, the Trustee shall cause the Sponsor to repurchase such
Mortgage Loan pursuant to the Representations and Warranties Agreement.
On or prior to the Closing Date, the Depositor shall deliver to
the applicable Custodian, the Trustee, the Master Servicer and the Servicer a
copy of the Data Tape Information in electronic, machine readable medium in a
form mutually acceptable to the Depositor, the applicable 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
each Custodian, the Master Servicer, the Securities Administrator, the Trustee
and the Servicer, and the applicable Custodian shall promptly, upon receipt of
the Mortgage Loan Schedule (or any other mortgage loan schedules received by the
applicable Custodian from the Depositor), inform the Depositor of receipt
thereof.
In the event, with respect to any Mortgage Loan, that such
original or copy of any document submitted for recordation to the appropriate
public recording office is not so delivered to the applicable Custodian within
90 days following the applicable Original Purchase Date, and in the event that
the Sponsor does not cause such failure to be cured within 60 days of discovery
of 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 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 remedy shall not apply in the event that the
Sponsor 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 Sponsor 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 Sponsor 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 applicable Custodian prior to the Closing Date of a copy
of such Mortgage or assignment, as the case may be, certified (such
certification to be an original thereof) by the public recording office to be a
true and complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP Trust 2007-HE2" 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 applicable 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 applicable Custodian, on the Trustee's behalf, holds and
will hold such documents and the other documents delivered to the applicable
Custodian pursuant to Section 2.01, and that the applicable 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
applicable Custodian acknowledges that it will maintain possession of the
related Mortgage Notes in the State of Texas, Minnesota or California, unless
otherwise permitted by the Rating Agencies.
As a condition to the Closing, on the Closing Date, the
applicable Custodian shall deliver via facsimile (with original to follow the
next Business Day) to the Depositor, the Trustee, the Master Servicer and the
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 applicable Custodian shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
On the Closing Date, the applicable 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
Servicer an Initial Certification, in the form annexed hereto as Exhibit F, and
shall deliver to the Depositor, the Trustee, the Master Servicer and the
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 applicable Custodian, within 30 days after the receipt of
the Mortgage File by the applicable 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 applicable Custodian shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
The applicable Custodian shall retain possession and custody of
each applicable Custodial File in accordance with and subject to the terms and
conditions set forth herein. The Servicer shall promptly deliver to the
applicable Custodian, upon the execution or receipt thereof, the originals of
such other documents or instruments constituting the Custodial File as come into
the possession of the Servicer from time to time.
The Depositor shall use reasonable efforts to cause the Sponsor
to 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 applicable 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 Depositor shall use
reasonable efforts to cause the Sponsor to deliver such documents, at the
Sponsor'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
Servicer and each Custodian (a) The Servicer hereby makes the representations
and warranties set forth in Schedule II hereto to the Depositor, the Master
Servicer, the Securities Administrator, the Custodians and the Trustee as of the
dates set forth in such Schedule. U.S. Bank National Association hereby makes
the representations and warranties set forth in Schedule III hereto to the
Depositor, the Master Servicer, the Servicer, the Securities Administrator and
the Trustee as of the Closing Date. Deutsche Bank hereby makes the
representations and warranties set forth in Schedule IV hereto to the Depositor,
the Servicer, the Master Servicer, the Securities Administrator and the Trustee
as of the Closing Date.
(b) It is understood and agreed by the Servicer and each
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 Servicer 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 Master Servicer, the
Securities Administrator, the Trustee, each Custodian or the 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) In connection with any repurchase or substitution of a
Mortgage Loan pursuant to this Section 2.03 or Sections 2.07 or 3.28 or the
Representations and Warranties Agreement, as applicable, the Servicer shall,
based on information provided by the Sponsor, 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 each Custodian
and the Trustee. The Servicer shall have no liability with respect to the
information provided by the Sponsor related to the Substitute Mortgage Loan.
Upon any such repurchase or any substitution and the deposit to the Collection
Account of any Substitution Adjustment Amount, the applicable Custodian shall
release the Mortgage File held for the benefit of the Certificateholders
relating to such Deleted Mortgage Loan to the Sponsor or the Depositor, as
applicable, and shall execute and deliver at the direction of the Sponsor or the
Depositor, as applicable, such instruments of transfer or assignment prepared by
the Sponsor or the Depositor, as applicable, in each case without recourse, as
shall be necessary to vest title in the Sponsor or its designee or the
Depositor, as applicable, or their respective designees, the Trustee's interest
in any Deleted Mortgage Loan repurchased or substituted for as described above
in this Section 2.03(c).
(d) For any month in which the Sponsor 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 serviced by the Servicer 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)
serviced by the Servicer. The Depositor shall use reasonable efforts to cause
the Sponsor to remit to the Servicer for deposit into the Collection Account on
or before the next Remittance Date any Substitution Adjustment Amount.
(e) 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
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, each Custodian shall release the related Custodial
File held for the benefit of the Certificateholders to such Person as directed
by the 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,
the Servicer, the Master Servicer, the Securities Administrator, each Custodian
or the Trustee on their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Custodial Files to each 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. For the avoidance of doubt, the Class C Certificates shall not represent
a regular or residual interest in any Trust REMIC. 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 March 2047, 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 Trustee, the Master
Servicer, the Securities Administrator and the 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 each Custodian and shall inure to the benefit of
the Trustee and the 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 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 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 Servicer to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, the Servicer shall service and administer the
related Mortgage Loans in accordance with the terms of this Agreement and the
respective Mortgage Loans (provided, however that, prior to the related
Servicing Transfer Date, the Depositor shall cause the applicable Original Loan
Seller to service such applicable Mortgage Loans substantially in accordance
with the terms of this Agreement), 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 the Servicer, any Subservicer or any
Affiliate of the Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or
Servicing Advances; or
(iv) the 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, the 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, the 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, the 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 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. The 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. The 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 the Servicer, and the applicable Custodian
and/or the Trustee, as applicable, shall furnish to the Servicer and any
Subservicer such documents as are necessary or appropriate to enable the
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to the 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 substantially attached
hereto as Exhibit R in favor of the Servicer for the purposes described herein
to the extent necessary or desirable to enable the Servicer to perform its
duties hereunder. The Trustee shall not be liable for the actions of the
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 the 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, the 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 the 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,
the 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) the
Servicer shall not (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 the 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) The 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 the Servicer and
Subservicers. (a) The Servicer may enter into subservicing agreements with
Subservicers, for the servicing and administration of the Mortgage Loans
("Subservicing Agreements"). The 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.
The Servicer shall give notice to the Depositor, the Master Servicer, the
Securities Administrator and the applicable 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 and the Securities Administrator and thereafter shall be
effective at the time the 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.
The 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. The 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 the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The 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 the Servicer's execution and delivery of such
instruments.
(c) As part of its servicing activities hereunder, the Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee (solely in its representative capacity) and the
Certificateholders, shall enforce the obligations of each Subservicer engaged by
the 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 the Servicer, in its good
faith business judgment, would require were it the owner of the related Mortgage
Loans. The 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) The Servicer shall cause any Subservicer engaged by the
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 the Servicer, and
to provide the information required with respect to such Subservicer under
Section 8.12(g) of this Agreement. The 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),
the Servicer and any Subservicer engaged by the Servicer is permitted to utilize
one or more Subcontractors to perform certain of its obligations hereunder. The
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 the
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
the 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, the Servicer shall cause any such Subcontractor used by the
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 the Servicer. The 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
the Servicer engages a Subcontractor in connection with the performance of any
of its duties under this Agreement, the 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 the
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 the Servicer
shall comply with Section 3.02(d) with respect thereto.
Section 3.03 Successor Subservicers. The 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 Servicer without any act or deed on the
part of such Subservicer or the Servicer, and the 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 the 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 the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the 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
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the 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 Servicer alone, and neither the Trustee nor the Master
Servicer (or any successor to the 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. The 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 the Servicer at any time shall for any reason
no longer be the 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 the Servicer under each Subservicing Agreement that
the 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 the Servicer's interest therein and to have replaced the 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) the Servicer
shall not thereby be relieved of any liability or obligations under any
Subservicing Agreement that arose before it ceased to be the 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 the Servicer that arose before it ceased to be the Servicer.
The 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)
The 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, the 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 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 the 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 the Servicer, such default is reasonably foreseeable, the 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
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, the 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 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 creditor's rights generally or (2) due to
acceleration in connection with a foreclosure or other involuntary payment or
(v) if the 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 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 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
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
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, the 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) The 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 applicable Original Loan
Seller transferred a fully transferable Tax Service Contract to the Servicer at
no expense to the Servicer. Each Tax Service Contract shall be assigned to the
Master Servicer (or successor servicer), as applicable, at the Servicer's
expense in the event that the 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, the Servicer undertakes to perform such functions. To
the extent the related Mortgage Loan provides for Escrow Payments, the 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. The 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
the 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 the 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 the 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, the 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 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 Servicer receives notice
of a tax lien with respect to the Mortgage Loan being imposed, the 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 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,
the 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 Servicer. On behalf of the Trustee, the
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
the 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 the 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 the Servicer or
required to be paid by the 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 the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the 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. The
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) The
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 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 the 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 the Servicer from a
Mortgagor, or otherwise received with respect to such Mortgage Loan (or
the related REO Property);
(iv) to pay to the 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 Sponsor 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 the Servicer for (A) any xxxxxxxxxxxx X&X
Advance or Servicing Advance previously made which the 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 the
Servicer in accordance with the terms of this Agreement; provided that
the 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 Servicer from its own funds,
from Amounts Held for Future Distribution, provided, however, any funds
so applied shall be replaced by the 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 the 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, the Servicer, the
Depositor, the Securities Administrator or the Trustee for expenses
incurred by or reimbursable to the Master Servicer, the 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, the 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 the Servicer for unreimbursed Advances;
and
(xiii) to clear and terminate the Collection Account upon
termination of this Agreement.
To the extent that the Servicer does not timely make the
remittance referred to in clause (i) above, the 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) The 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. The 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) The 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 Servicer, shall
be for the benefit of the Servicer and shall be subject to its withdrawal in the
manner set forth in Section 3.11. The 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) The 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. The 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. The 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 the 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 the 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
the 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 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 the 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 the 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, the 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) The 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 the 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 the Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond
in the form and amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx
Mac, unless the Servicer has obtained a waiver of such requirements from Xxxxxx
Mae or Xxxxxxx Mac. The Servicer shall provide the Master Servicer access to
review such insurance policies and fidelity bond of the Servicer or its
affiliates. The Servicer shall be deemed to have complied with this provision if
an Affiliate of the 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 the Servicer. Upon request from the
Master Servicer, the 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). The 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. The 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 the
Servicer shall not be required to take such action if, in the reasonable belief
of the Servicer, the 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 the 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, the 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,
the 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. The 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 the
Servicer and has a credit risk rating at least equal to that of the original
Mortgagor. In connection with any assumption, modification or substitution, the
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. The
Servicer shall not take nor 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 the Servicer in respect of an
assumption or substitution of liability agreement will be retained by the
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. The Servicer shall notify each Custodian that any such substitution,
modification or assumption agreement has been completed by forwarding to the
applicable 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, the 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 the 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. The
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. The 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, the
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 the Servicer
through Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds from
the related Mortgaged Property, as contemplated in Section 3.11. The 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. In
circumstances where the Servicer determines that it would be uneconomical to
foreclose on the related Mortgaged Property, the 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 the Servicer, the 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 the
Servicer did not receive notice or otherwise had no actual knowledge regarding
such foreclosure on the related first lien mortgage loan; provided, however, if
the 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,
the 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. The Servicer shall not 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
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 the 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
the 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 the 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 the 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 the 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,
the Servicer shall cause an environmental inspection or review of such Mortgaged
Property to be conducted by a qualified inspector. Upon completion of the
inspection, the 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 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 Servicer determines, consistent with
Accepted Servicing Practices, to proceed with foreclosure or acceptance of a
deed-in-lieu of foreclosure, the 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 the Servicer, the Servicer shall be entitled to
be reimbursed from amounts in the Collection Account pursuant to Section 3.11.
In the event the Servicer determines not to proceed with foreclosure or
acceptance of a deed-in-lieu of foreclosure, the 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 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 the Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer will, within five (5) Business Days of the payment in full, notify the
applicable 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
applicable Custodian. Upon receipt of such certification and Request for
Release, the applicable Custodian shall promptly release the related Custodial
File to the Servicer within five (5) 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, each Custodian shall, upon
request of the Servicer and delivery to the applicable Custodian of a Request
for Release, release the related Custodial File to the Servicer, and the Trustee
shall, at the direction of the Servicer, execute such documents as shall be
necessary to the prosecution of any such proceedings and the Servicer shall
retain the Mortgage File in trust for the benefit of the Trustee. Such Request
for Release shall obligate the Servicer to return each and every document
previously requested from the Custodial File to the applicable Custodian when
the need therefor by the 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 the Servicer has delivered to the applicable
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 applicable Custodian to the Servicer or its
designee. Upon receipt of a Request for Release under this Section 3.16, the
applicable Custodian shall deliver the related Custodial File to the Servicer by
regular mail or by overnight courier, unless the Servicer requests that the
applicable Custodian deliver such Custodial File to the Servicer by overnight
courier (in which case such delivery shall be at the Servicer's expense);
provided, however, that in the event the 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 the 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 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 the Servicer a power of attorney
sufficient to authorize the 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 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) The 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. The Servicer, either itself
or through an agent selected by the 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. The 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 the Servicer deems to be in the best
interest of the Master Servicer. The Servicer shall notify the Master Servicer
from time to time as to the status of each REO Property.
(c) The 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 the
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, the 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) The 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) The Servicer shall deposit net of reimbursement to the
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) The 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 Servicer as additional servicing compensation.
(h) The 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) the 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) the 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 the 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. The Servicer shall
manage, conserve, protect and operate each REO Property serviced by the 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 Servicer shall either
itself or through an agent selected by the 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 the 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 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
Servicer shall select a comparable alternative index over which it has no direct
control and which is readily verifiable. The 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. The 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 the Servicer or the receipt of
notice from the Master Servicer that the Servicer has failed to adjust a
Mortgage Interest Rate or Scheduled Payment in accordance with the terms of the
related Mortgage Note, the 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 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 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
Servicer to Be Held for the Securities Administrator for the Benefit of the
Trustee. The Servicer shall account fully to the Securities Administrator on
behalf of the Trustee for any funds received by the Servicer or which otherwise
are collected by the 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, the 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 the 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. The 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 the Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Servicer under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, the 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, the 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 the Servicer's responsibilities and obligations under this Agreement;
provided, however, that the 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 the Servicer only to the extent such fees or charges are received by
the Servicer. The Servicer shall also be entitled pursuant to Section
3.09(b)(vi) 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) The 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 the 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. The Servicer, the
Securities Administrator and the Master Servicer shall deliver or cause to be
delivered, and the Servicer shall cause each Subservicer engaged by the 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), the 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 Servicer as to the nature of any defaults by the
Servicer or any related Subservicer in the fulfillment of any of the 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), the Servicer or Subservicer under this Section apply to the
Securities Administrator and the Master Servicer, and the Servicer and
Subservicer that serviced a Mortgage Loan during the applicable period, whether
or not the 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 Servicer 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 each Custodian, only until a Form 15 Suspension Notice has been
filed), the Servicer, the Securities Administrator, the Master Servicer, each
Custodian and the Trustee (in its capacity as successor master servicer, if
applicable) each shall deliver, and the Servicer shall cause each Subservicer
engaged by the Servicer, and the 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 the 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 the 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 Servicer, 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 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 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 the 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 each Custodian, only until a Form 15 Suspension
Notice has been filed), the Servicer, the Securities Administrator, the Master
Servicer, the Trustee (in its capacity as successor master servicer, if
applicable) and each Custodian shall cause, and the Servicer, the Securities
Administrator and the Master Servicer shall cause each Subservicer engaged by
the Servicer and the Servicer, the Securities Administrator and the Master
Servicer shall cause each Servicing Function Participant utilized by the
Securities Administrator, the Master Servicer or the 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 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 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
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 the Servicer), as the case may be, in the fulfillment of any of the
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 sub-servicing agreement. No Subcontractor
engaged by the 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, the 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 the
Servicer, the Securities Administrator or the Master Servicer submits its
assessment pursuant to Section 3.23(a), the 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), each Custodian, the Servicer or Subservicer under this Section
apply to the Securities Administrator, the Master Servicer and the Trustee (in
its capacity as successor master servicer, if applicable), each Custodian, and
the 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 the Servicer shall for any reason no longer be the 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 the
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 the Servicer pursuant to Section
2.03 or (v) deemed to have made any representations and warranties of the
Servicer hereunder). Any such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the 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 Servicer shall for any reason no longer be the
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 the 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 Servicer thereunder; and the 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 Servicer shall, upon request of the Master Servicer, but
at the expense of the 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 Servicer shall remit to
the Securities Administrator on each Remittance Date an amount from its own
funds equal to Compensating Interest payable by the Servicer for such Remittance
Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With
respect to each Mortgage Loan, the 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) The 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 the 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). 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)(J), the
lesser of (x) the Class X Distributable Amount (to the extent remaining after
the distributions specified in Sections 4.02(a)(iii)(A)-(I) 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)(K). 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 the Servicer to the
Securities Administrator pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments;
(iii) any amounts remitted by the 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 Servicer shall remit any amount not
required to be remitted, the 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 the Servicer. Upon receipt
of such purchase price, the Servicer shall provide to the applicable Custodian a
Request for Release and the applicable Custodian shall promptly release to the
Depositor or the Servicer, as applicable, the Mortgage File relating to the
Mortgage Loan being repurchased.
Section 3.29 Transfer of Servicing for Certain Mortgage Loans
Prior to the Servicing Transfer Date, the Depositor shall cause the applicable
Original Loan Seller to comply with each of the servicing transfer requirements
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 the 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, the 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,
the 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 the 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 the Servicer with respect to the
Mortgage Loans and REO Properties. Any Amounts Held for Future Distribution and
so used shall be appropriately reflected in the Servicer's records and replaced
by the Servicer by deposit in the Collection Account on or before any future
Remittance Date to the extent required. In addition, the 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 the 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 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 the 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 the 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 the Servicer delivered to the Master Servicer. In
addition, the 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, the 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 (to
the extent not previously paid to the Swap Provider as a
Replacement Swap Provider Payment to the Trust), other than a
Defaulted Swap Termination Payment, owed to the Swap Provider
with respect to that Distribution Date;
(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; and
(K) from any remaining Interest Remittance Amounts, to
the Class M-9 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 and Class
M-9 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 Class M-1
Principal Distribution Amount, to the Class M-1 Certificates
until their Class Certificate Balance has 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 Class M-1
Certificates in clause (ii)(B)(b) above, and (y) the Class M-2
Principal Distribution Amount, to the Class M-2 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 Class M-1
Certificates in clause (ii)(B)(b) above and to the Class M-2
Certificates in clause (ii)(B)(c) above, and (y) the Class M-3
Principal Distribution Amount, to the Class M-3 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 Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above and to the Class M-3
Certificates in clause (ii)(B)(d) 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;
(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 Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above and to the Class M-4
Certificates in clause (ii)(B)(e) 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;
(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 Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) 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;
(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 Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above and to the Class M-6
Certificates in clause (ii)(B)(g) 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;
(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 Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above and to the Class M-7
Certificates in clause (ii)(B)(h) 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;
(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 Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7
Certificates in clause (ii)(B)(h) above and to the Class M-8
Certificates in clause (ii)(B)(i) 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;
(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 Excess Reserve Fund Account, the amount of
any Basis Risk Payment for such Distribution Date;
(K) 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;
(L) to the Supplemental Interest Trust, the amount of
any Defaulted Swap Termination Payment;
(M) 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 and Class M-9
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;
(N) to the Class X Certificates, the remainder of the
Class X Distributable Amount not distributed pursuant to
Sections 4.02(a)(iii)(A)-(M);
(O) to the Class RC Certificates, any remaining amount,
in respect of Pooling-Tier REMIC-1;
(P) 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
(Q) 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, Net Swap
Receipts, Cap Payments or 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 and
Class M 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
Servicer, 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 Servicer (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 Servicer;
(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 (i) and/or (ii) above from the Servicer, the Servicer 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 Master
Servicer, the Servicer and the Depositor is limited, if applicable, to the
availability, timeliness and accuracy of the information derived from the Master
Servicer and the Servicer. 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 1-866-846-4526.
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 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 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 CC hereto, a monthly
defaulted loan report substantially similar to the format set forth in Exhibit
DD hereto and a realized loss report substantially similar to the format set
forth in Exhibit EE hereto (or in such other format mutually agreed to among the
Depositor, the Servicer, 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 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.
The 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 the
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 the 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. The Servicer hereby represents and warrants that, as of the Closing Date,
the Servicer does not have a safety and soundness regulator that requires the
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 the Servicer, an Affiliate of the
Servicer, or its designee (including, without limitation, an employee of the
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 the 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 the 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 Servicer, an Affiliate of the
Servicer, or its designee (including, without limitation, an employee of the
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, a Class C
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,
a Class C 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 Servicer 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 Servicer 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, a Class C 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, a Class C 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, the Class C Certificates and the 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 Trustee, the Securities Administrator or the Servicer, 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 Servicer, 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 00 Xxxxxx 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 Servicer, 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 Servicer, the Securities
Administrator, the Master Servicer, the Trustee, the Depositor and any agent of
the Servicer, 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 Servicer, the Master Servicer, the Securities Administrator, the Trustee,
the Depositor or any agent of the Servicer, 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 the 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, the 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-HE2. 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 SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer 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 the
Servicer. (a) The Depositor and the 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 the Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Servicer, shall be the
successor of the Depositor or the 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 the 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 the Servicer under this Agreement by any
Person (i) into which the Servicer may be merged or consolidated, or (ii) which
may be appointed as a successor to the Servicer, the 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
Servicer and Others. Neither the Depositor, the Servicer 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 Servicer or any such Person against any breach of representations
or warranties made by it herein or protect the Depositor, the Servicer 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, the Servicer and any
director, officer, employee or agent of the Depositor and the 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, the Servicer and any director, officer, employee, Affiliate or
agent of the Depositor, the Sponsor or the 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 the 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 the 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 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 the Servicer. Subject
to the provisions of Section 6.02, Section 7.01 and Section 7.02, the Servicer
shall not assign this Agreement or resign from the obligations and duties hereby
imposed on it except (i) by mutual consent of the 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 the Servicer or (iii) upon satisfaction of the following
conditions: (a) the 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 the
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 the 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 Servicer; Third
Party Claims.
(a) The Servicer shall indemnify the Depositor, the Sponsor, the
Master Servicer, the Securities Administrator and the Trustee and any Affiliate,
director, officer, employee or agent of the Depositor, the Sponsor, 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 the 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 the Servicer, or (iii) the failure of the
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 Servicer immediately shall notify the Depositor, 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 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 Master Servicer, the Securities Administrator
or the Trustee in respect of such claim.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the 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 the Servicer or
any Subservicer engaged by the Servicer or any Subcontractor utilized by the
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 the 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 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 the
Servicer, on the other, in connection with a breach of the 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
Servicer.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means with respect to the Servicer individually, any one of the
following events:
(a) any failure by the 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 the Servicer by the Depositor or by the Securities
Administrator, or to the 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 the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement which continues unremedied for
a period of thirty 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 the
Servicer by the Depositor, the Securities Administrator or the Master Servicer,
or to the 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 the 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 the Servicer,
the cure period may be extended for an additional 30 days upon delivery by the
Servicer to the Securities Administrator of a certificate to the effect that the
Servicer believes in good faith that the failure or breach can be cured within
such additional time period and the 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 the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(d) the 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 the Servicer or of or relating to all or
substantially all of its property; or
(e) the 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 the 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 Servicer and (with
a copy to each Rating Agency), terminate all of the rights and obligations of
the 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 the 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 the 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 the 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 the Servicer of the default
on any Remittance Date on which the 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 the 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 the 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 the Servicer as set forth in the immediately
preceding sentence. If the Servicer fails to make such payment, the Master
Servicer shall send notice of termination (by email, facsimile or other writing)
to the Servicer, and, on and after the receipt by the Servicer of such notice,
or upon receipt by the Servicer of notice with respect to any other clause of
this Section 7.01, all authority and power of the 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 the 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 the Servicer to pay amounts owed pursuant to this
Agreement. The Servicer agrees to cooperate with the Master Servicer in
effecting the termination of the 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 the Servicer
hereunder, the 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 the 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 the 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
the 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 the 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 the
Servicer would have been entitled to charge to the Collection Account if the
Servicer had continued to act hereunder including, if the 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 the 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 the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Any successor
to the 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 the
Servicer (other than liabilities of the Servicer under Section 6.03 incurred
prior to termination of the 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 the
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 the Servicer from
investments. The Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Master Servicer nor any other successor Servicer shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
In the event that the 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 the 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 the 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 the 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 CUSTODIANS
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 each Custodian and the
Trustee. Except as otherwise provided in Section 8.01:
(a) each 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) each 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 any 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 any 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
each 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 the Servicer of any funds paid to the Depositor, the Securities
Administrator, the Master Servicer or the 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 the 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, each Custodian and any
director, officer, employee, or agent of the Trustee or the applicable 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 applicable Custodian's
duties under this Agreement,
other than any loss, liability, or expense with respect to the Trustee (i)
resulting from any breach of the Servicer's obligations in connection with this
Agreement for which the 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
applicable Custodian's duties under this Agreement or (iii) resulting from any
breach of the Master Servicer's obligations hereunder for which the Master
Servicer has performed its obligation to indemnify the Trustee pursuant to this
Agreement. This indemnity shall survive the termination of this Agreement or the
resignation or removal of the Trustee and applicable 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 the Servicers 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 Servicer 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 the 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 the 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 the 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 Servicer 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
Servicer 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 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
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by the 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 the 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 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 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 Servicer, 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 Servicer, in the case of any such
minimum tax, and otherwise if such tax arises out of or results from a breach by
the Servicer of any of its obligations under 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 or (iv)
in all other cases, or if the Trustee, the Master Servicer, the Securities
Administrator, the Servicer or the Sponsor fails to honor its obligations under
the preceding clause (i), (ii) or (iii), any such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in Section
4.02(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 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.
The grantor trust portion of the Trust Fund shall be treated as a
WHFIT that is a NMWHFIT. The Securities Administrator shall report as required
under the WHFIT Regulations to the extent such information as is reasonably
necessary to enable the Securities Administrator to do so, and is not in its
possession, is provided to the Securities Administrator on a timely basis. The
Securities Administrator is hereby directed to assume that DTC is the only
"middleman" (as such term is defined in the WHFIT Regulations) unless the
Depositor provides the Securities Administrator with the identities of other
"middlemen" that are Certificateholders. The Securities Administrator shall be
entitled to rely on the first sentence of this paragraph and shall be entitled
to indemnification in accordance with the terms of this Agreement in the event
that the IRS makes a determination that the first sentence of this paragraph is
incorrect.
The Securities Administrator, in its discretion, shall report
required WHFIT information using either the cash or accrual method, except to
the extent the WHFIT Regulations specifically require a different method. The
Securities Administrator shall be under no obligation to determine whether any
Certificateholder or other beneficial owner of a Certificate, to the extent the
Securities Administrator knows of any other beneficial owner of a Certificate,
uses the cash or accrual method. The Securities Administrator shall make
available information as required by the WHFIT Regulations to Certificateholders
annually. In addition, the Securities Administrator shall not be responsible or
liable for providing subsequently amended, revised or updated information to any
Certificateholder, unless requested by the Certificateholder.
The Securities Administrator shall not be liable for failure to
meet the reporting requirements of the WHFIT Regulations nor for any penalties
thereunder if such failure is due to: (i) the lack of reasonably necessary
information being provided to the Securities Administrator, (ii) incomplete,
inaccurate or untimely information being provided to the Securities
Administrator or (iii) the inability of the Securities Administrator, after good
faith efforts, to alter its existing information reporting systems to capture
information necessary to fully comply with the WHFIT Regulations for the 2007
calendar year. Absent receipt of information regarding any sale of Certificates,
including the price, amount of proceeds and date of sale from the beneficial
owner thereof or the Depositor, the Securities Administrator may assume there is
no secondary market trading of WHFIT interests.
To the extent required by the WHFIT Regulations, the Securities
Administrator shall use reasonable efforts to publish on an appropriate website
the CUSIP Numbers for the Certificates that represent ownership of a WHFIT. The
CUSIP Numbers so published shall represent the Rule 144A CUSIP Numbers. The
Securities Administrator shall make reasonable good faith efforts to keep the
website accurate and updated to the extent CUSIP Numbers have been received. The
Securities Administrator shall not be liable for investor reporting delays that
result from the receipt of inaccurate or untimely CUSIP Number information.
The Securities Administrator shall be entitled to additional
reasonable compensation for changes in reporting required in respect of the
WHFIT Regulations that arise as a result of a change in the WHFIT Regulations or
a change in interpretation of the WHFIT Regulations by the IRS, if such change
requires, in the Securities Administrator's sole discretion, a material increase
in the Securities Administrator's reporting obligations in respect of the
related Grantor Trust.
Section 8.12 Periodic Filings. (a) The Securities Administrator,
the Master Servicer and the 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 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 the 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 Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Securities Administrator that the Depositor has filed 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 Servicer and each Subservicer engaged by the
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 Servicer, each Custodian, each
Subservicer engaged by the Servicer and each Servicing Function Participant
utilized by the 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
Servicer, the applicable Custodian (if the Trust is subject to Exchange Act
Reports for such fiscal year), each Subservicer engaged by the Servicer and each
Servicing Function Participant utilized by the 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 standard 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 the Servicer (and any Subservicer or
Servicing Function Participant engaged by the 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, the Servicer shall sign a
certification solely with respect to the 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 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 Servicer 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)
the 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 the
Servicer's obligations under this Section 8.12(d) or any material misstatement,
material omission, negligence, bad faith or willful misconduct of the 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 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 Servicer, on the other hand, in connection with
a breach of the Servicer's obligations under this Section 8.12(d) or any
material misstatement or omission, negligence, bad faith or willful misconduct
of the Servicer in connection therewith. The obligations of the Securities
Administrator and the Servicer under this Section 8.12(d) shall apply to the
Securities Administrator and the 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 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
Servicer 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 Servicer 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, 10-D or
10-K 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 Servicer 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 (including, without limitation, any
transfer of servicing of the Mortgage Loans after the Closing Date) (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
standard 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 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 the 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 a notional
principal 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) Each Custodian shall
provide access to the Mortgage Loan Documents in possession of the applicable
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 applicable Custodian. Each 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) Each Custodian may resign from its obligations hereunder upon
60 days prior written notice to the Trustee, the Depositor, the Securities
Administrator and the Servicer. 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 such Custodian's resignation is received by the
Trustee, the applicable Custodian may petition a court of competent jurisdiction
to appoint a successor Custodian.
Upon such resignation and appointment of successor Custodian, the
applicable Custodian shall, at such 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 applicable Custodian, shall bear the costs
relating to the transfer of Mortgage Files if such Custodian shall resign with
cause (including such Custodian's resignation due to the failure of such
Custodian to be paid all fees due to such 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, each 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) Each 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 applicable Custodian to deliver when required
any assessment of compliance required to be delivered by the applicable
Custodian or (ii) any material misstatement or omission contained in any
assessment of compliance provided to be delivered by the applicable Custodian.
This indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the applicable Custodian.
(e) Notwithstanding anything in this Agreement to the contrary,
no Custodian shall 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 each 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 such
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
Custodians shall be paid their fee by the Securities Administrator from the
Securities Administrator's own funds pursuant to a separate fee schedule. The
Custodians shall have no lien on the Trust Fund for the payment of such fees.
Section 8.15 Limitations on Custodial Responsibilities.
(a) Each 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) Each 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 such Custodian's compensation or
for reimbursement of expenses.
(c) Each Custodian shall not be responsible or liable for, and
makes no representation or warranty with respect to, the validity, adequacy or
perfection or any lien upon or security interest in any Mortgage File.
(d) The duties and obligations of each 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
each Custodian shall not be the party required to take the action or refrain
from acting. In no event shall any Custodian have any responsibility to
ascertain or take action except as expressly provided herein.
(e) Each Custodian makes no representations and shall have no
responsibilities (except as expressly set forth herein) as to the validity,
sufficiency, value, genuineness, ownership or transferability of any of the
Conduit Mortgage Loans, and shall not be required to and shall not make any
representations as to the validity, value or genuineness of the Conduit Mortgage
Loans.
(f) Each 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.
(g) Each Custodian shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any document in the Mortgage File or of any Conduit Mortgage
Loans or (ii) the collectibility, insurability, effectiveness including the
authority or capacity of any Person to execute or issue any document in the
Mortgage File, or suitability of any Conduit Mortgage Loans unless specified
otherwise in this Agreement.
(h) Each Custodian shall have no obligation to verify the receipt
of any such documents the existence of which was not made known to such
Custodian by receipt of the Mortgage File.
(i) Each Custodian shall have no obligation to determine whether
the recordation of any document is necessary.
(j) In no event shall any 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.
(k) Any Person into which the applicable Custodian may be merged
or consolidated, or any Person resulting from any merger, conversion or
consolidation to which the applicable Custodian shall be a party, or any person
succeeding to the business of such Custodian, shall be the successor of such
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 the Servicer's obligations under this Agreement, and
(except as set forth below) shall use its reasonable good faith efforts to cause
the 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) the Servicer reports a delinquency on a monthly report and
(ii) the 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 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 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
Servicer as required hereunder (including costs associated with (i) termination
of the 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 the Servicer it replaces or for any errors or omissions of the
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by the Servicer of the 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 the Servicer 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
Servicer, the Depositor, the Securities Administrator, the Custodians 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) [Reserved].
(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 Servicer, the Depositor,
the Securities Administrator, the Custodians, 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 Servicer, the
Depositor, the Securities Administrator, the Custodians, the Trustee and the
Trust constitutes the sole remedy of the Servicer, the Depositor, the Securities
Administrator, the Custodians, 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 Servicer, the
Depositor, the Master Servicer, Securities Administrator, the applicable
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 the 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 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 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 Servicer 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 Servicer as required under this
Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Servicer, Depositor, the Sponsor, the
Securities Administrator, the Custodians, 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 Servicer, Depositor, the Sponsor, the Securities
Administrator, the Custodians, 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 Securities Administrator, the Servicer, the
applicable 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 Securities
Administrator, the Servicer, the applicable 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 the Servicer has performed its obligation to
indemnify the Trustee and the Custodian pursuant to Section 6.05, or (iii) 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 Servicer 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 the 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 the Servicer of any funds paid to the Depositor or the Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Depositor or the 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 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 Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase by the Servicer
(at the direction of the Majority Class C Certificateholder), on the Optional
Termination Date, 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 (or in the case of the Servicer, acting at the
direction of the Majority Class C Certificateholder, selected by the Majority
Class C Certificateholder), at the expense of such Person (or in the case of the
Servicer, acting at the direction of the Majority Class C Certificateholder, the
Majority Class C Certificateholder), 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) ("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.
Section 11.02 Final Distribution on the Certificates. If on any
Remittance Date, the 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, the 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 the Servicer (at the direction of the Majority Class C Certificateholder)
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, the
Person electing to terminate the Trust Fund shall notify the Depositor, the
Master Servicer, the Servicer, the Trustee and the Securities Administrator in
writing as of the date the electing Person intends to terminate the Trust Fund
and of the applicable Termination Price of the Mortgage Loans and REO
Properties. The Servicer, when acting at the direction of the Majority Class C
Certificateholder, shall be entitled to reasonably rely on a representation from
the Majority Class C Certificateholder that it is the Majority Class C
Certificateholder and is entitled under this Agreement to direct the Servicer to
terminate the Trust Fund.
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 and the
Person electing to terminate the Trust Fund is the Servicer (at the direction of
the Majority Class C Certificateholder), the Majority Class C Certificateholder
shall remit the applicable Termination Price in immediately available funds to
the Servicer at least two Business Days prior to the applicable Distribution
Date, and, upon receipt of such funds from the Majority Class C
Certificateholder, the Servicer shall promptly deposit such funds in the
Collection Account. During the time such funds are held in the Collection
Account, such funds shall be invested, at the direction of the Majority Class C
Certificateholder, in Permitted Investments, and the Majority Class C
Certificateholder shall be entitled to all income from such investments, and
shall be responsible for, and shall reimburse the Servicer for all losses from
such investments. The Majority Class C Certificateholder shall be obligated to
reimburse the Servicer for its reasonable out-of-pocket expenses incurred in
connection with its termination of the Trust Fund at the direction of the
Majority Class C Certificateholder and shall indemnify and hold harmless the
Servicer for any losses, liabilities or expenses resulting from any claims
directly resulting from or relating to the Servicer's termination of the Trust
Fund at the direction of the Majority Class C Certificateholder, except to the
extent such losses, liabilities or expenses arise out of or result from the
Servicer's negligence, bad faith or willful misconduct.
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 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, to the extent funds are
available for such distribution), 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, (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 a
Person elects to terminate the Trust Fund as provided in Section 11.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee and the Securities Administrator have been
supplied with an Opinion of Counsel, at the expense of the electing Person, 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; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F 1, the first day of the 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 the electing
Person.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time
to time by the Depositor, the Securities Administrator, the Master Servicer, the
Servicer, each 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, any 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. Each Custodian, the Trustee, the
Securities Administrator, the Master Servicer, the Depositor and the 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 and to facilitate the administration of each Trust REMIC under the
REMIC Provisions and the grantor trust, (ii) avoid or minimize the risk of the
imposition of any tax on any Trust REMIC or the grantor trust 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 Servicer, each
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.
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 Servicer, any Certificate beneficially owned by
the Depositor 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 Custodians 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 the 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 Servicer by
the Depositor in writing; (b) 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; (c) in the case of Avelo, 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; (d)
in the case of U.S. Bank National Association, to U.S. Bank National
Association, 0000 Xxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Xxxxxx
Xxxxxxxx, or such other address as may be hereafter furnished to the Swap
Provider, the Cap Provider and the other parties hereto in writing; (e) in the
case of the Deutsche Bank, Deutsche Bank National Trust Company, 0000 Xxxx Xx.
Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Mortgage Custody -
GS07AC, or such other address as may be hereafter furnished to the Swap
Provider, the Cap Provider and the other parties hereto in writing; (f) 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-HE2 and (ii) for
all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Services Manager--GSAMP 2007-HE2, or such other addresses as
may be hereafter furnished to the Swap Provider, the Cap Provider and the other
parties hereto in writing; (g) in the case of the Swap Provider and Cap
Provider, Xxxxxxx Xxxxx 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 (h) 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) The 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)
the 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 the Servicer pursuant to this
Agreement. No consent of the Trustee, Certificateholders or any other party
shall be required before the 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 the Servicer. Notwithstanding the
existence of any Advance Facility under which an Advance Financing Person agrees
to fund Advances, (A) the 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 the 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 the Servicer enters into an Advance Facility, the 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 the Servicer would be permitted to reimburse itself in
accordance with Section 3.11 hereof, assuming the 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, the
Servicer, on behalf of the Advance Financing Person and the 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, the Servicer
shall no longer be entitled to receive reimbursement for any Advance
Reimbursement Amounts and the 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) the 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 the
Servicer or the 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 the 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 the Servicer's Assignee. The 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 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 the 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 the 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, the Servicer shall remain entitled to be reimbursed by the
Advance Financing Person for all Advances funded by the Servicer to the extent
the related Advance Reimbursement Amounts have not been assigned or pledged to
such Advance Financing Person or the Servicer's Assignee.
(f) For purposes of any Officer's Certificate of the 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 the
Servicer or any predecessor Servicer. In making its determination that any
Advance or Servicing Advance theretofore made has become a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance, the Servicer shall apply the same
criteria in making such determination regardless of whether such Advance or
Servicing Advance shall have been made by the 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, Trustee, the
Depositor and the 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 the 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 the
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) the 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
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. The Servicer agrees
that on reasonable prior notice, it will permit any representative of the
Depositor, the Master Servicer or the Trustee during the Servicer's normal
business hours, to examine all the books of account, records, reports and other
papers of the 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 the 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 the 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 the Servicer). The
Servicer may impose commercially reasonable restrictions on dissemination of
information the Servicer defines as confidential.
Nothing in this Section 12.09 shall limit the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the 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
the Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. The 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,
the 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 the 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 the 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, the Servicer, the Trustee and each 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, each Custodian and the 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/ Xxxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice 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
U.S. BANK NATIONAL ASSOCIATION,
as Custodian
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Asst. Vice President
AVELO MORTGAGE, L.L.C.,
as Servicer,
By: /s/ J. Xxxxxx Xxxxxxx
-----------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: 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-HE2,
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 II to the Depositor, the Securities
Administrator, the Master Servicer, the Custodians and the Trustee, as of the
Closing Date. Capitalized terms used but not otherwise defined in this Schedule
II 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.(i) 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 III
GSAMP Trust 2007-HE2,
Mortgage Pass-Through Certificates
Representations and Warranties of
U.S. Bank National Association, a national banking association, as Custodian
----------------------------------------------------------------------------
U.S. Bank National Association, a national banking association
("U.S. Bank") hereby makes the representations and warranties set forth in this
Schedule III to the Depositor, the Master Servicer, the Securities
Administrator, the Servicer and the Trustee, as of the Closing Date, or if so
specified herein, as of the Cut-off Date:
(1) U.S. Bank is a national banking association duly organized,
validly existing and in good standing under the federal laws of the
United States of America and is duly authorized and qualified to
transact any and all business contemplated by this Pooling and Servicing
Agreement to be conducted by U.S. Bank;
(2) U.S. Bank has the full power and authority 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 U.S. Bank 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
Servicer and the Trustee, constitutes a legal, valid and binding
obligation of U.S. Bank, enforceable against U.S. Bank 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 U.S. Bank, the consummation by U.S. Bank 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 U.S. Bank and will not (A) result in a breach of any term or
provision of the Articles of Incorporation or Bylaws of U.S. Bank 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 U.S. Bank is a party or by which it may be bound, or
any statute, order or regulation applicable to U.S. Bank of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over U.S. Bank; and U.S. Bank 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 to the actual
knowledge of an authorized officer of U.S. Bank, materially and
adversely affects or would in the future materially and adversely
affect, (x) the ability of U.S. Bank to perform its obligations under
this Pooling and Servicing Agreement or (y) the business, operations,
financial condition, properties or assets of U.S. Bank taken as a whole;
(4) No litigation is pending against U.S. Bank that would
materially and adversely affect the execution, delivery or
enforceability of this Pooling and Servicing Agreement or the ability of
U.S. Bank to perform any of its obligations hereunder in accordance with
the terms hereof; and
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by U.S. Bank of, or compliance by U.S. Bank with, this
Pooling and Servicing Agreement or the consummation by U.S. Bank 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.
SCHEDULE IV
GSAMP Trust 2007-HE2,
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 IV to the
Depositor, the Master Servicer, the 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 and CLASS M CERTIFICATES
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.
Certificate No. :
Cut-off Date : March 1, 2007
First Distribution Date : April 25, 2007
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates of this Class Certificate
Class : Class Balance
--------------------- ----------------------
Class A-1 $ 370,801,000
Class A-2A $ 216,267,000
Class A-2B $ 50,045,000
Class A-2C $ 74,161,000
Class A-2D $ 28,668,000
Class M-1 $ 42,961,000
Class M-2 $ 39,423,000
Class M-3 $ 24,261,000
Class M-4 $ 21,228,000
Class M-5 $ 19,206,000
Class M-6 $ 17,184,000
Class M-7 $ 18,196,000
Class M-8 $ 16,173,000
Class M-9 $ 15,162,000
: Class CUSIP/ISIN No.
--------------------- ----------------------
CUSIP Class A-1 362440 AA7
Class A-2A 362440 AB5
Class A-2B 362440 AC3
Class A-2C 362440 AD1
Class A-2D 362440 AE9
Class M-1 362440 AF6
Class M-2 362440 AG4
Class M-3 362440 AH2
Class M-4 000000 XX0
Class M-5 362440 AK5
Class M-6 362440 AL3
Class M-7 362440 AM1
Class M-8 362440 AN9
Class M-9 362440 AP4
ISIN :
Class A-1 US362440AA75
Class A-2A US362440AB58
Class A-2B US362440AC32
Class A-2C US362440AD15
Class A-2D US362440AE97
Class M-1 US362440AF62
Class M-2 US362440AG46
Class M-3 US362440AH29
Class M-4 US362440AJ84
Class M-5 US362440AK57
Class M-6 US362440AL31
Class M-7 US362440AM14
Class M-8 US362440AN96
Class M-9 US362440AP45
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-HE2
Mortgage Pass-Through Certificates, Series 2007-HE2
[Class A-] [Class M-]
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 Servicer, the Securities Administrator, the
Custodians, the Sponsor, the applicable Original Loan Seller 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"), Avelo Mortgage, L.L.C., as a servicer
(the "Servicer"), U.S. Bank National Association ("U.S. Bank"), as a custodian,
Deutsche Bank National Trust Company, as a custodian (together with U.S. Bank,
the "Custodians"), 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-HE2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-HE2 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 Servicer, the
Securities Administrator, the Custodians 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 : March 1, 2007
First Distribution Date : April 25, 2007
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : 362440 AU3
ISIN US362440AU30
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-HE2
Mortgage Pass-Through Certificates, Series 2007-HE2
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 Servicer, the Securities Administrator, the Custodians, the
Sponsor, the applicable Original Loan Seller 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"), Avelo Mortgage, L.L.C., as a servicer
(the "Servicer"), U.S. Bank National Association ("U.S. Bank"), as a custodian,
Deutsche Bank National Trust Company, as a custodian (together with U.S. Bank,
the "Custodians"), 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-HE2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-HE2 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 Servicer, the
Securities Administrator, the Custodians 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
FORM OF CLASS C 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 TRUSTEE 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 TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : C-1
Cut-off Date : March 1, 2007
First Distribution Date : April 25, 2007
Percentage Interest of this
Certificate ("Denomination") : [___]%
CUSIP : 362440 AV1
ISIN : US362440AV13
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-HE2
Mortgage Pass-Through Certificates, Series 2007-HE2
Class C
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Servicer, the Securities Administrator, the Sponsor, the applicable Original
Loan Seller 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"), Avelo Mortgage, L.L.C., as a servicer
(the "Servicer"), U.S. Bank National Association ("U.S. Bank"), as a custodian,
Deutsche Bank National Trust Company, as a custodian (together with U.S. Bank,
the "Custodians"), 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. The
only rights of this Class under the Agreement is to make a request as set forth
in Article XI of the Agreement.
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.
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-HE2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-HE2 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 Servicer, the
Securities Administrator 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-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 : March 1, 2007
First Distribution Date : April 25, 2007
Initial Certificate Balance of this
Certificate ("Denomination") : $50
Initial Certificate Balance of all
Certificates of this Class : $50
CUSIP : 362440 AQ2
ISIN : US362440AQ28
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-HE2
Mortgage Pass-Through Certificates, Series 2007-HE2
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 Servicer, the Securities Administrator, the Custodians, the
Sponsor, the applicable Original Loan Seller 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"), Avelo Mortgage, L.L.C., as a servicer
(the "Servicer"), U.S. Bank National Association ("U.S. Bank"), as a custodian,
Deutsche Bank National Trust Company, as a custodian (together with U.S. Bank,
the "Custodians"), 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 Servicer 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-HE2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-HE2 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 Servicer, the
Securities Administrator, the Custodians 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
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 : March 1, 2007
First Distribution Date : April 25, 2007
Initial Certificate Balance of this
Certificate ("Denomination") : $100
Initial Certificate Balances of all
Certificates of this Class : $100
CUSIP : 362440 AR0
ISIN : US362440AR01
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-HE2
Mortgage Pass-Through Certificates, Series 2007-HE2
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 Servicer, the Securities Administrator, the Custodians, the
Sponsor, the applicable Original Loan Seller 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"), Avelo Mortgage, L.L.C., as a servicer
(the "Servicer"), U.S. Bank National Association ("U.S. Bank"), as a custodian,
Deutsche Bank National Trust Company, as a custodian (together with U.S. Bank,
the "Custodians"), 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 Servicer 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-HE2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-HE2 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 Servicer, the
Securities Administrator, the Custodians 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 : March 1, 2007
First Distribution Date : April 25, 2007
Initial Certificate Balance of this
Certificate ("Denomination") : $50
Initial Certificate Balances of all
Certificates of this Class : $50
CUSIP : 362440 AS8
ISIN : US362440AS83
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-HE2
Mortgage Pass-Through Certificates, Series 2007-HE2
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 Servicer, the Securities Administrator, the Custodians, the
Sponsor, the applicable Original Loan Seller 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"), Avelo Mortgage, L.L.C., as a servicer
(the "Servicer"), U.S. Bank National Association ("U.S. Bank"), as a custodian,
Deutsche Bank National Trust Company, as a custodian (together with U.S. Bank,
the "Custodians"), 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 Servicer 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-HE2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-HE2 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 Servicer, the
Securities Administrator, the Custodians 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 SERVICER 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 : March 1, 2007
First Distribution Date : April 25, 2007
Percentage Interest of this Certificate
("Denomination") : 100%
CUSIP : 362440 AT6
ISIN: : US362440AT66
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2007-HE2
Mortgage Pass-Through Certificates, Series 2007-HE2
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 Servicer, the Securities
Administrator, the Custodians, the Sponsor, the applicable Original Loan Seller
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"), Avelo Mortgage, L.L.C., as a servicer
(the "Servicer"), U.S. Bank National Association ("U.S. Bank"), as a custodian,
Deutsche Bank National Trust Company, as a custodian (together with U.S. Bank,
the "Custodians"), 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 Servicer 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 Servicer 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 Servicer 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-HE2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2007-HE2 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 Servicer, the
Securities Administrator, the Custodians 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 Servicer 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 April 1,
2007, among GS Mortgage Securities Corp., as Depositor,
Avelo Mortgage, L.L.C., as Servicer, U.S. Bank National
Association, as a Custodian, Deutsche Bank National Trust
Company, as a Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as
Securities Administrator and Master Servicer, GSAMP Trust
2007-HE2, Series 2007-HE2
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 applicable 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.
U.S. BANK NATIONAL ASSOCIATION,
as Custodian
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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 March 1, 2007, among
GS Mortgage Securities Corp., as Depositor, Avelo Mortgage,
L.L.C., as Servicer, U.S. Bank National Association, as a
Custodian, Deutsche Bank National Trust Company, as a Custodian,
LaSalle Bank National Association, as Trustee, and Xxxxx Fargo
Bank, N.A., as Securities Administrator and Master Servicer,
GSAMP Trust 2007-HE2, Series 2007-HE2
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as a Custodian, hereby certifies that as to each Mortgage Loan
listed in the Mortgage Loan Schedule for which it is the applicable 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.
U.S. BANK NATIONAL ASSOCIATION,
as Custodian
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Custodian
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
EXHIBIT H
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2007-HE2,
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 March 1, 2007 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Avelo Mortgage, L.L.C., as a servicer (the
"Servicer"), U.S. Bank National Association ("U.S. Bank"), as a custodian,
Deutsche Bank National Trust Company, as a custodian (together with U.S. Bank,
the "Custodians"), 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-HE2
Re: GSAMP Trust 2007-HE2 Mortgage Pass-Through Certificates, Series
-----------------------------------------------------------------
2007-HE2, 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-HE2
Xxxxxxx Xxxxx Mitsui Marine Derivative Products, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
RE GSAMP Trust 2007-HE2 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 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.
--------------
(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.
____ 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:
----------------------------
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-HE2
Re: GSAMP Trust 2007-HE2 Mortgage Pass-Through Certificates,
--------------------------------------------------------
Series 2007-HE2, 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 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.
AVELO MORTGAGE, L.L.C.
By:
------------------------------
(authorized signer)
Issuer:
--------------------------
Address:
-------------------------
---------------------------------
Date:
----------------------------
Acknowledged receipt by:
U.S. Bank National Association, as Custodian
By:
--------------------------------------------
Name:
Title:
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 applicable 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 applicable 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 applicable Original Loan Seller, 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 applicable Original
Loan Seller, (to the extent that it has not previously delivered the
same to the Sponsor or the applicable Custodian) shall deliver or cause
to be delivered to the applicable 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
applicable Original Loan Seller (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
applicable Custodian upon receipt thereof by the applicable Original
Loan Seller; 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 applicable
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 applicable
Original Loan Seller (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 applicable 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 applicable Original Loan Seller (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
applicable Custodian upon receipt thereof by the applicable Original
Loan Seller; 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-HE2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-HE2, issued pursuant to the Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Avelo Mortgage, L.L.C., as Servicer, U.S. Bank
National Association, as a Custodian, Deutsche Bank National
Trust Company, as a Custodian, LaSalle Bank National Association,
as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2007-HE2
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; 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 Servicer and each Custodian.
Date:
----------------------------
---------------------------------
[Signature]
[Title]
EXHIBIT P
FORM OF SECURITIES ADMINISTRATOR CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2007-HE2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-HE2, issued pursuant to the Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Avelo Mortgage, L.L.C., as Servicer, U.S. Bank
National Association, as a Custodian, Deutsche Bank National
Trust Company, as a Custodian, LaSalle Bank National Association,
as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2007-HE2
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 Servicer 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-HE2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-HE2, issued pursuant to the Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Avelo Mortgage, L.L.C., as Servicer, U.S. Bank
National Association, as a Custodian, Deutsche Bank National
Trust Company, as a Custodian, LaSalle Bank National Association,
as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2007-HE2
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-HE2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-HE2, issued pursuant to the Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Avelo Mortgage, L.L.C., as Servicer, U.S. Bank
National Association, as a Custodian, Deutsche Bank National
Trust Company, as a Custodian, LaSalle Bank National Association,
as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2007-HE2
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-HE2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2007-HE2, issued pursuant to the Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Avelo Mortgage, L.L.C., as Servicer, as a Custodian,
U.S. Bank National Association, as a Custodian, Deutsche Bank
National Trust Company, as a Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as
Securities Administrator and Master Servicer, GSAMP Trust
2007-HE2
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:
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. (the "Depositor"), Avelo
Mortgage, L.L.C., as servicer ("Avelo"), U.S. Bank National Association, as a
custodian ("U.S. Bank"), Deutsche Bank National Trust Company, as a custodian
("DBNTC" and together with U.S. Bank, the "Custodians"), Xxxxx Fargo Bank, N.A.,
as master servicer ("Master Servicer") and securities administrator ("Securities
Administrator") and the Trustee, dated as of March 1, 2007 (the "Pooling and
Servicing Agreement"), hereby constitutes and appoints Avelo, by and through
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 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 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, Avelo shall not,
without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating Avelo's
representative capacity; provided that 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, Avelo, the Custodians,
the Master Servicer, the Securities Administrator and the Trustee, dated as of
March 1, 2007, GSAMP Trust 2007-HE2, Mortgage Pass-Through Certificates, Series
2007-HE2, 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-HE2, Mortgage Pass-Through
Certificates, Series 2007-HE2
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-HE2, Mortgage
Pass-Through Certificates, Series 2007-HE2, 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 (the "Agreement"),
dated as of April 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, Xxxxxxx Sachs Mortgage Company ("GSMC" or "Seller")
acquired certain mortgage loans (the "Aames Mortgage Loans") set forth on the
mortgage loan schedule attached hereto as Schedule I (the "Aames Mortgage Loan
Schedule") from Aames Capital Corporation ("Aames") pursuant to that certain
Flow Mortgage Loan Purchase and Warranties Agreement, dated as of April 1, 2006
(the "Aames Purchase Agreement"), by and between GSMC, as purchaser, and Aames,
as seller;
WHEREAS, GSMC acquired certain mortgage loans (the "Decision One
Mortgage Loans") set forth on the mortgage loan schedule attached hereto as
Schedule II (the "Decision One Mortgage Loan Schedule") from Decision One
Mortgage Company, LLC. ("Decision One") pursuant to that certain Flow Mortgage
Loan Purchase and Warranties Agreement, dated as of May 1, 2006 (the "Decision
One Purchase Agreement"), by and between GSMC, as purchaser, and Decision One,
as seller;
WHEREAS, GSMC acquired certain mortgage loans (the "New Century
Mortgage Loans") set forth on the mortgage loan schedule attached hereto as
Schedule III (the "New Century Mortgage Loan Schedule") from NC Capital
Corporation ("New Century") pursuant to that certain Second Amended and Restated
Flow Mortgage Loan Purchase and Warranties Agreement, dated as of May 1, 2006
(the "New Century Purchase Agreement"), by and between GSMC, as purchaser, and
New Century, as seller;
WHEREAS, GSMC acquired certain mortgage loans (the "NovaStar
Mortgage Loans") set forth on the mortgage loan schedule attached hereto as
Schedule IV (the "NovaStar Mortgage Loan Schedule") from NovaStar Mortgage, Inc.
("NovaStar") pursuant to that certain Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of May 1, 2006 (the "NovaStar Purchase Agreement"), by and
between GSMC, as purchaser, and NovaStar, as seller;
WHEREAS, GSMC acquired certain mortgage loans (the "Senderra
Mortgage Loans") set forth on the mortgage loan schedule attached hereto as
Schedule V (the "Senderra Mortgage Loan Schedule") from Senderra Funding, LLC
("Senderra") pursuant to that certain Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of March 1, 2006, as amended by Amendment No. 1, dated as of
June 28, 2006 (the "Senderra Purchase Agreement"), by and between GSMC, as
purchaser, and Senderra, as seller;
WHEREAS, GSMC acquired certain mortgage loans (the "Conduit Mortgage
Loans," and together with the Aames Mortgage Loans, the Decision One Mortgage
Loans, the New Century Mortgage Loans, the NovaStar Mortgage Loans and the
Senderra Mortgage Loans, the "Mortgage Loans") set forth on the mortgage loan
schedule attached hereto as Schedule VI (the "Conduit Mortgage Loan Schedule")
from various mortgage loan sellers pursuant to certain Master Loan Purchase
Agreements (the "Conduit Purchase Agreements," and together with the Aames
Purchase Agreement, the Decision One Purchase Agreement, the New Century
Purchase Agreement, the NovaStar Purchase Agreement and the Senderra Purchase
Agreement, the "Purchase Agreements"), each by and between GSMC, as purchaser,
and the applicable mortgage loan seller, as seller;
WHEREAS, pursuant to that certain Xxxx of Sale, dated as of April
20, 2007, by and between GSMC and the Depositor, the Mortgage Loans are to be
transferred by GSMC to the Depositor;
WHEREAS, pursuant to that certain Pooling and Servicing Agreement,
dated as of March 1, 2007 (the "Pooling and Servicing Agreement"), by and among
the Depositor, Avelo Mortgage, L.L.C., as servicer, U.S. Bank National
Association, as a custodian, Deutsche Bank National Trust Company, as a
custodian, Xxxxx Fargo Bank, N.A., as securities administrator and as master
servicer and LaSalle Bank National Association, as trustee, GSAMP Trust 2007-HE2
(the "Trust") shall issue its Mortgage Pass-Through Certificates, Series
2007-HE2 (the "Certificates"), 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 securitization of the Mortgage Loans
and the issuance of the Certificates, the parties hereto have determined it to
be necessary and appropriate for GSMC to 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:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
ALTA: The American Land Title Association, or any successor thereto.
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 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.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
such Mortgage Loan as of the Cut-off Date (unless otherwise indicated), to the
lesser of (a) the Appraised Value of the Mortgaged Property at origination and
(b) if such Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property,
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
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 the 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(e) of the Standard & Poor's
LEVELS(R) Glossary.
Section 2. Representations and Warranties of GSMC.
(a) As to each Mortgage Loan, GSMC hereby makes the representations
and warranties set forth in Exhibit I hereto to the Depositor as of the Closing
Date (or such other date as set forth herein).
Section 3. Repurchase or Substitution Obligation for Breach of a
Representation or Warranty.
(a) Within ninety (90) 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 ninety (90) calendar days of
GSMC's receipt of request from the Depositor, repurchase such Mortgage Loan at
the Repurchase Price. In the event that such a breach shall involve any
representation or warranty set forth in Section 2 of this Agreement, and such
breach cannot be cured within ninety (90) days of the earlier of either
discovery by or notice to GSMC of such breach, all of the Mortgage Loans
materially and adversely affected thereby shall, at the Depositor's option, be
repurchased by GSMC at the Repurchase Price. 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 clauses (O),
(P), (R), (S) and (T) of Exhibit I, 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 of this Agreement relating to any Mortgage Loan and GSMC
discovers or receives notice of any such breach within two years 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 two years
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 or the Custodian, as the
case may be, 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 the Custodian 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, together with one month's interest at the Mortgage Interest Rate on
the Deleted Mortgage Loan, 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.
(c) Assignment and Assumption of EPD Provision
(i) GSMC hereby assigns, conveys, transfers and sets over to the
Depositor all of GSMC's right, title and interest (except as otherwise set
forth in Section 3(c)(ii) below) in, to and under GSMC's rights to require
any original loan seller to repurchase a Mortgage Loan as a result of a
scheduled payment of principal and interest not being made during the
period of time specified in the early payment default provision (the "EPD
Provision") in the related purchase price and terms agreement, trade
confirmation, seller's guide or mortgage loan purchase and warranties
agreement, each between GSMC and the applicable original loan seller, but
only to the extent such provision relates to any Mortgage Loans that are
the subject of this Agreement.
(ii) Notwithstanding the foregoing set forth in (i) above GSMC
specifically reserves and does not assign to the Depositor any and all
right, title and interest in, to and under the right to receive as part of
the repurchase price for any such Mortgage Loan repurchased pursuant to
any EPD Provision the excess (the "Repurchase Premium") of the Purchase
Price Percentage (as defined in the applicable purchase price and terms
agreement) over 100% multiplied by the unpaid principal balance of such
Mortgage Loan. In the event any Mortgage Loan is eligible to be
repurchased by the applicable original loan seller pursuant to the
provisions of the applicable agreement specified in Section 3(c)(i) above,
the Depositor shall require GSMC to use reasonable efforts, acting on
behalf of the Depositor, to require the applicable original loan seller to
repurchase such Mortgage Loan at the price set forth in the applicable
agreement. The Depositor acknowledges and agrees that GSMC may not be able
to collect the full amount owing under the applicable agreement from the
applicable original loan seller (due to credit issues, disputes as to
whether an early payment default has occurred, or otherwise), and that
GSMC may, in attempting to enforce remedies against the applicable
original loan seller, also attempt to enforce remedies in respect of the
Repurchase Premium and in respect of mortgage loans not subject (or not
then subject) to this Agreement (or may attempt to enforce such remedies
in lieu of attempting to enforce remedies in respect of Mortgage Loans
subject to this Agreement). GSMC may allocate any recoveries from the
applicable original loan seller to amounts owing in respect of the
Repurchase Premium or in respect of mortgage loans not subject (or not
then subject) to this Agreement prior to, or in lieu of, allocating
amounts to Mortgage Loans subject to this Agreement.
Section 4. Document Delivery Requirements.
(a) 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 one hundred eighty (180) 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: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
EXHIBIT I
Representations and Warranties Regarding the Mortgage Loans. For the
purposes of this exhibit, "Mortgage Loan" refers to the applicable Mortgage
Loan, "Mortgage Loan Schedule" refers to the applicable Mortgage Loan Schedule
and "Seller" refers to the applicable seller of the Mortgage Loans.
(A) Mortgage Loans as Described. The information set forth in the
Mortgage Loan Schedule relating to the Mortgage Loans is complete, true and
correct as of the Cut-off Date;
(B) Payments Current. Except with respect to the Mortgage Loans
identified on Exhibit I-A, (i) all payments required to be made up to the
Closing Date for the Mortgage Loan under the terms of the Mortgage Note, other
than payments not yet 30 days delinquent, have been made and credited, (ii) no
payment required under the Mortgage Loan has been 30 days or more delinquent at
any time since the origination of the Mortgage Loan, and (iii) the first Monthly
Payment was made with respect to the Mortgage Loan on its related Due Date or
within the grace period, all in accordance with the terms of the related
Mortgage Note;
(C) 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 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;
(D) 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 as are customarily insured against in the jurisdiction
where the related Mortgaged Property is located and acceptable to the Rating
Agencies;
(E) 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,
equal credit opportunity, disclosure and all predatory, abusive and fair lending
laws applicable to the Mortgage Loan, including, without limitation, any
provisions relating to Prepayment Penalties, have been complied with, and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations;
(F) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) 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:
(1) with respect to a Second Lien Loan only, the lien of the first
mortgage on the Mortgaged Property;
(2) the lien of current real property taxes and assessments not yet
due and payable;
(3) 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; and
(4) 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.
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 first lien (with respect
to a First Lien Loan) or second lien (with respect to a Second Lien Loan) and
first priority (with respect to a First Lien Loan) or second priority (with
respect to a Second Lien Loan) security interest on the property described
therein and Xxxxxx has full right to sell and assign the same to the Depositor.
(G) 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;
(H) Title Insurance. With respect to a Mortgage Loan which is not a
Co-op Loan, 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 generally
accepted title insurer and qualified to do business in the jurisdiction where
the Mortgaged Property is located, insuring the Seller, its successors and
assigns, as to the first (with respect to a First Lien Loan) or second (with
respect to a Second Lien Loan) priority lien of the Mortgage in the original
principal amount of the Mortgage Loan (or to the extent a Mortgage Note provides
for negative amortization, the maximum amount of negative amortization in
accordance with the Mortgage), subject only to the exceptions contained in
clauses (a), (b) and (c) of paragraph (f) of this Exhibit I, 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;
(I) No Defaults. Except as set forth in paragraph (b) above, 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 Xxxxxx nor any of its Affiliates nor any of their
respective predecessors, have waived any default, breach, violation or event
which would permit acceleration;
(J) 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;
(K) 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 the 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;
(L) 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;
(M) 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 GSMC's knowledge, such provision is
enforceable;
(N) 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, 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;
(O) Prepayment Penalty. 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; or prior to the
Mortgage Loan's origination, the Mortgagor was offered the option of obtaining a
mortgage loan that did not require payment of such a premium and (iii) the
Prepayment Penalty was adequately disclosed to the Mortgagor in the mortgage
loan documents pursuant to applicable state, local and federal 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;
(P) 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;
(Q) Origination. 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;
(R) Purchase of Insurance. No Mortgagor was required to purchase any
single premium credit insurance policy (e.g. life, mortgage, disability,
property, accident, unemployment or health 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,
mortgage, disability, property, accident, unemployment or health insurance) 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;
(S) Qualified Mortgage. The Mortgage Loan would be a "qualified
mortgage," within the meaning of Section 860G(a)(3) of the Code, if transferred
to a REMIC on its startup day in exchange for the regular or residual interests
in the REMIC;
(T) No Arbitration. No Mortgage Loan originated on or after August
1, 2004 requires the related Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan transaction;
(U) Disclosure of Fees and Charges. All fees and charges (including
finance charges), whether or not financed, assessed, collected or to be
collected in connection with the origination and servicing of each Mortgage
Loan, have been disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation;
(V) 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;
(W) 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 Depositor, and which has
been delivered to the Trustee or to such other Person as the Depositor shall
designate in writing, and the terms of which are reflected in the Mortgage Loan
Schedule. The substance of any such waiver, alteration or modification has been
approved by the issuer of the title insurer, if any, to the extent required, and
its terms are reflected on the Mortgage Loan Schedule, if applicable;
(X) Ownership. Xxxxxx is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The Mortgage
Loan is not assigned or pledged, and Xxxxxx has good, indefeasible and
marketable title thereto, and has full right to transfer and sell the Mortgage
Loan to the Depositor 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 and following the sale of
each Mortgage Loan, the Depositor will own such Mortgage Loan free and clear of
any encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest;
(Y) 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;
(Z) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Depositor) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(AA) 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 Seller or the
related original loan seller, 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;
(BB) 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;
(CC) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan does not rely solely 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 such as the Mortgagor's income, assets and 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;
(DD) No 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;
(EE) No Fraud. No error, omission, misrepresentation, negligence,
fraud or similar occurrence with respect to a Mortgage Loan has taken place on
the part of GSMC, the Mortgagor, or, to the best of GSMC's knowledge, any
appraiser, any builder, or any developer, or any other party involved in the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan
EXHIBIT I-A
Exceptions to Representations and Warranties Regarding the Mortgage Loans
[None.]
SCHEDULE I
Aames Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE II
Decision One Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE III
New Century Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE IV
NovaStar Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE V
Senderra Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE VI
Conduit Mortgage Loan Schedule
(Available Upon Request to Depositor)
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], [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
Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the Securities
1122(d)(1)(i) transaction agreements. Administrator/Servicer
If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing Securities
1122(d)(1)(ii) activities. Administrator/Servicer
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained. N/A
A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the Servicer/Master Servicer
1122(d)(1)(iv) 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 specified in the transaction
1122(d)(2)(i) agreements. Servicer/Master Servicer
Disbursements made via wire transfer on behalf of an obligor or to Servicer/Securities
1122(d)(2)(ii) an investor are made only by authorized personnel. Administrator/Master Servicer
Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for
such advances, are made, reviewed and approved as specified
1122(d)(2)(iii) in the transaction agreements. Servicer/Master Servicer
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with Servicer/Securities
respect to commingling of cash) as set forth in the transaction Administrator/Master Servicer
1122(d)(2)(iv) agreements.
Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution that Servicer/Securities
meets the requirements of Rule 13k-1(b)(1) of the Securities Administrator/Master Servicer
1122(d)(2)(v) Exchange Act.
Unissued checks are safeguarded so as to prevent unauthorized Servicer/Securities
1122(d)(2)(vi) access. Administrator/Master Servicer
Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the reconciliation;
and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days Servicer/Securities
1122(d)(2)(vii) specified in the transaction agreements. Administrator/Master Servicer
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Investor Remittances and Reporting
-----------------------------------------------------------------------------------------------------------------------
Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total unpaid Securities
principal balance and number of mortgage loans serviced by the Administrator/Servicer/Master
1122(d)(3)(i) Servicer. Servicer
Amounts due to investors are allocated and remitted in Securities
accordance with timeframes, distribution priority and other Administrator/Servicer/Master
1122(d)(3)(ii) terms set forth in the transaction agreements. Servicer
Disbursements made to an investor are posted within two business Securities
days to the Servicer's investor records, or such other number of Administrator/Servicer/Master
1122(d)(3)(iii) days specified in the transaction agreements. Servicer
Amounts remitted to investors per the investor reports agree with Securities
cancelled checks, or other form of payment, or custodial bank Administrator/Servicer/Master
1122(d)(3)(iv) statements. Servicer
-----------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
-----------------------------------------------------------------------------------------------------------------------
Collateral or security on mortgage loans is maintained as required
1122(d)(4)(i) by the transaction agreements or related mortgage loan documents. Custodian/Servicer
Mortgage loan and related documents are safeguarded as required by Custodian/Servicer
1122(d)(4)(ii) the transaction agreements
Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
1122(d)(4)(iii) conditions or requirements in the transaction agreements. Servicer
Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two business
days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage Servicer
1122(d)(4)(iv) loan documents.
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) 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
1122(d)(4)(vi) the transaction agreements and related pool asset documents. Servicer
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 Servicer
1122(d)(4)(vii) established by the transaction agreements.
Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such records
are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency Servicer
1122(d)(4)(viii) is deemed temporary (e.g., illness or unemployment).
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) 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 Servicer
days of full repayment of the related mortgage loans, or such other
1122(d)(4)(x) number of 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 Servicer
1122(d)(4)(xi) other number of days specified in the 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
1122(d)(4)(xii) obligor's error or omission. Servicer
Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the Servicer,
or such other number of days specified in the transaction Servicer
1122(d)(4)(xiii) agreements.
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements. Servicer
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
1122(d)(4)(xv) as set forth in the transaction agreements. Securities Administrator
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EXHIBIT U
-------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
-------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-------------------------------------------------------------------------------
Item 1: Distribution and Pool Master Servicer/
Performance 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 1121 which Depositor
is NOT included on the Monthly
Statement
-------------------------------------------------------------------------------
Item 2: Legal Proceedings (i) All parties to the Agreement
(as to themselves), (ii) the
per Item 1117 of Regulation AB Trustee, the Master Servicer, the
Securities Administrator and the
Servicer (to their respective
actual knowledge) as to the issuing
entity, (iii) the Depositor as to
the sponsor, and each Original Loan
Seller 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 Administrator
Securities
-------------------------------------------------------------------------------
Item 5: Submission of Matters to a Securities Administrator
Vote of Security Holders
-------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool N/A
Assets
-------------------------------------------------------------------------------
Item 7: Significant Enhancement Depositor
Provider Information
-------------------------------------------------------------------------------
Item 8: Other Information Any party to the Agreement
responsible for the 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 the disclosure
items on Form 8-K
-------------------------------------------------------------------------------
Item 15: Exhibits, Financial Securities Administrator
Statement Schedules Depositor
-------------------------------------------------------------------------------
Additional Item: (i) All parties to the Agreement
(as to themselves), (ii) the
Disclosure per Item 1117 of Trustee, the Master Servicer, the
Regulation AB Depositor, the Securities
Administrator and the Servicer (to
their respective actual knowledge)
as to the Trust, (iii) the
Depositor as to the sponsor and
each Original Loan Seller or any
1100(d)(1) party
-------------------------------------------------------------------------------
Additional Item: (i) All parties to the Agreement as
to themselves, (ii) the Depositor
Disclosure per Item 1119 of as to the sponsor, or any
Regulation AB 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 The party to this Agreement entering
Definitive Agreement into such material definitive
agreement
--------------------------------------------------------------------------------
Item 1.02- Termination of a Material The party to this Agreement
Definitive Agreement requesting 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 the
Servicer (to their respective
actual knowledge) as to the Trust,
(iii) the Depositor as to the
sponsor and each Original Loan
Seller or any 1100(d)(1) party
--------------------------------------------------------------------------------
Item 2.04- Triggering Events that Securities Administrator/Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
--------------------------------------------------------------------------------
Item 3.03- Material Modification to The party requesting such modification
Rights of Security Holders
--------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of
Fiscal Year
--------------------------------------------------------------------------------
Item 6.01- ABS Informational and Depositor
Computational Material
--------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Master Servicer, Servicer,
Trustee Securities Administrator, Trustee (as
to the Trustee)
--------------------------------------------------------------------------------
Item 6.03- Change in Credit Depositor/Securities Administrator
Enhancement or External Support
--------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Securities Administrator
Distribution
--------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Depositor
Disclosure
--------------------------------------------------------------------------------
Item 7.01- Reg FD Disclosure Depositor
--------------------------------------------------------------------------------
Item 8.01- Other Events Depositor
-------------------------------------------------------------------------------
Item 9.01- Financial Statements and Responsible party for
Exhibits reporting/disclosing the financial
statement or exhibit
-------------------------------------------------------------------------------
EXHIBIT X
INTEREST RATE SWAP AGREEMENT AND INTEREST RATE CAP AGREEMENT
(Multicurrency -- Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of April 20, 2007
XXXXXXX XXXXX MITSUI MARINE and GSAMP TRUST 2007-HE2
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
of 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-HE2
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-HE2
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxxx X.X. Xxxxx
------------------------------ ------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President Title: Vice President
Date: 2.23.07 Date: 2.23.07
SCHEDULE
to the
MASTER AGREEMENT
dated as of April 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-HE2
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.
(b) 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.
(c) 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 Date by which Section 3(d)
deliver document Form/Document/ Certificate to be delivered Representation
Party A Power of Attorney with respect At execution of this Yes
to Party A Agreement
Party A Support Agreement dated as of At execution of this Yes
October 8, 1993 among Party A, Agreement
Mitsui Marine and Fire
Insurance Co., Ltd. ("Mitsui
Marine"), and The Xxxxxxx
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 December At execution of this Yes
20, 2000 between Mitsui Marine Agreement
and Xxxxxxx Xxxxx 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 annual As soon as possible Yes
balance sheet of Party A following request of
Party B
Party A Legal opinions with respect to At execution of this No
Party A Agreement
Party B Incumbency certificate or other At execution of this Yes
documents evidencing the Agreement
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 becoming Yes
available
Party B Legal opinion with respect to At execution of this No
Party B Agreement
Party B An executed copy of the Pooling Within 30 days after No
and Servicing Agreement dated the date of this
as of April 1, 2007, (the Agreement
"Pooling and Servicing
Agreement") among GS Mortgage
Securities Corp., as depositor,
Avelo Mortgage, L.L.C., as
servicer, U.S. Bank National
Association, as a custodian,
Deutsche Bank National Trust
Company, as a custodian, Xxxxx
Fargo Bank, N. A., as
securities administrator and as
master servicer, and LaSalle
Bank, N.A., 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, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAMP Trust 2007-HE2
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, N.A. 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, N.A. 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, N.A., 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, N.A. 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: 4.20.07
GSAMP TRUST 2007-HE2
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-HE2
By: /s/ Xxxxxxxx X.X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
Date: 4.20.07
Xxxxxxx Sachs Capital Markets, L.P. | 00 Xxxxx Xxxxxx x
Xxx Xxxx, Xxx Xxxx 00000 | Tel: 000-000-0000
-------------------------------------------------------
[XXXXXXX XXXXX LOGO]
CONFIRMATION
DATE: March 30, 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: NUUS703670 (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-HE2 ("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 April 20, 2007.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 933,168,000 (subject to adjustment in
accordance with the Amortization Schedule
set forth in Annex I)
Trade Date: March 30, 2007
Effective Date: April 20, 2007
Termination Date: March 25, 2012, subject to adjustment in
accordance with the Modified Following
Business Day Convention
Initial Payment: USD 1,288,000 payable by GSCM to
Counterparty on the Effective Date
Floating Amounts:
-----------------
Floating Rate Payer: GSCM
Floating Rate Payer Early
Payment Dates: On the day which is one (1) Business Day
prior to each Floating Rate Period End Date
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated
Maturity: 1 Month
Floating Rate Spread: None
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count
Fraction: Actual/360
Floating Rate Period End Dates: Monthly, on the 25th day of each month,
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: Counterparty
Fixed Rate Payer Payment Dates: Monthly, on the 25th day of each month,
commencing on April 25, 2007 and ending on
the Termination Date, subject to adjustment
in accordance with the Modified Following
Business Day Convention
Fixed Rate: 5.00%
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-HE2, (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.:
NUUS703670 (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 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/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
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-HE2
By: /s/ Xxxxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
Annex I
Schedule
For the Calculation Period The applicable USD
from and including:* to but excluding:* Notional Amount shall be:
-------------------------- ------------------ -------------------------
March 20, 2007 April 25, 2007 933,168,000.00
April 25, 2007 May 25, 2007 920,965,770.00
May 25, 2007 June 25, 2007 905,892,726.00
June 25, 2007 July 25, 2007 887,971,736.00
July 25, 2007 August 25, 2007 867,248,429.00
August 25, 2007 September 25, 2007 843,795,975.00
September 25, 2007 October 25, 2007 817,711,304.00
October 25, 2007 November 25, 2007 789,116,319.00
November 25, 2007 December 25, 2007 758,161,576.00
December 25, 2007 January 25, 2008 725,030,801.00
January 25, 2008 February 25, 2008 690,046,825.00
February 25, 2008 March 25, 2008 656,046,781.00
March 25, 2008 April 25, 2008 623,615,801.00
April 25, 2008 May 25, 2008 592,680,696.00
May 25, 2008 June 25, 2008 563,156,198.00
June 25, 2008 July 25, 2008 534,994,405.00
July 25, 2008 August 25, 2008 508,131,496.00
August 25, 2008 September 25, 2008 482,487,935.00
September 25, 2008 October 25, 2008 458,016,311.00
October 25, 2008 November 25, 2008 434,668,843.00
November 25, 2008 December 25, 2008 412,387,765.00
December 25, 2008 January 25, 2009 391,020,515.00
January 25, 2009 February 25, 2009 369,777,420.00
February 25, 2009 March 25, 2009 327,250,180.00
March 25, 2009 April 25, 2009 285,106,649.00
April 25, 2009 May 25, 2009 249,097,131.00
May 25, 2009 June 25, 2009 230,137,652.00
June 25, 2009 July 25, 2009 215,507,109.00
July 25, 2009 August 25, 2009 209,183,000.00
August 25, 2009 September 25, 2009 209,183,000.00
September 25, 2009 October 25, 2009 205,819,959.00
October 25, 2009 November 25, 2009 195,406,137.00
November 25, 2009 December 25, 2009 185,545,793.00
December 25, 2009 January 25, 2010 176,208,382.00
January 25, 2010 February 25, 2010 167,365,379.00
February 25, 2010 March 25, 2010 158,990,729.00
March 25, 2010 April 25, 2010 151,057,102.00
April 25, 2010 May 25, 2010 143,540,134.00
May 25, 2010 June 25, 2010 136,417,001.00
June 25, 2010 July 26, 2010 129,666,181.00
July 26, 2010 August 25, 2010 123,267,395.00
August 25, 2010 September 25, 2010 117,201,614.00
September 25, 2010 October 25, 2010 111,450,534.00
October 25, 2010 November 25, 2010 105,997,067.00
November 25, 2010 December 25, 2010 100,825,098.00
December 25, 2010 January 25, 2011 95,919,417.00
January 25, 2011 February 25, 2011 91,265,667.00
February 25, 2011 March 25, 2011 86,850,299.00
March 25, 2011 April 25, 2011 82,660,504.00
April 25, 2011 May 25, 2011 78,684,195.00
May 25, 2011 June 25, 2011 74,909,958.00
June 25, 2011 July 25, 2011 71,327,013.00
July 25, 2011 August 25, 2011 67,925,177.00
August 25, 2011 September 25, 2011 64,694,828.00
September 25, 2011 October 25, 2011 61,626,883.00
October 25, 2011 November 25, 2011 58,712,757.00
November 25, 2011 December 25, 2011 55,944,307.00
December 25, 2011 January 25, 2012 53,313,890.00
January 25, 2012 February 25, 2012 50,813,415.00
February 25, 2012 March 25, 2012 48,432,192.00
---------------------
* 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: March 30, 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: NUUC703090 (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 Confirmation
relates, and this Confirmation evidences a Transaction for the benefit of the
certificate holders of the GSAMP Trust 2007-HE2 ("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 Schedule thereto between such
parties dated as of April 20, 2007.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 2,097,044 (subject to adjustment in
accordance with the Amortization Schedule
set forth in Annex I)
Trade Date: March 30, 2007
Effective Date: April 25, 2007
Termination Date: March 25, 2012, subject to adjustment in
accordance with the Modified Following
Business Day Convention
Floating Amounts:
-----------------
Floating Rate Payer
(Cap Seller): GSCM
Cap Rate: 6.50%
Floating Rate Payer Early
Payment Dates: On the day which is one (1) Business Day
prior to each Floating Rate Period End Date
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated
Maturity: 1 Month
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count
Fraction: Actual/360
Floating Rate Period End Dates: Monthly, on the 25th day of each month,
commencing on May 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: April 20, 2007, subject to adjustment in
accordance with the Modified Following
Business Day Convention
Fixed Amount: USD 198,000
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-HE2, (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.:
NUUC703090 (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/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
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-HE2
By: /s/ Xxxxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
Annex I
Schedule
For the Calculation Periods The applicable USD
from and including:* to but excluding:* Notional Amount shall be:
--------------------------- ------------------ -------------------------
April 25, 2007 May 25, 2007 2,097,044.00
May 25, 2007 June 25, 2007 4,711,136.00
June 25, 2007 July 25, 2007 7,837,218.00
July 25, 2007 August 25, 2007 11,462,560.00
August 25, 2007 September 25, 2007 15,565,802.00
September 25, 2007 October 25, 2007 20,117,778.00
October 25, 2007 November 25, 2007 25,081,144.00
November 25, 2007 December 25, 2007 30,409,573.00
December 25, 2007 January 25, 2008 36,046,864.00
January 25, 2008 February 25, 2008 41,904,704.00
February 25, 2008 March 25, 2008 47,351,695.00
March 25, 2008 April 25, 2008 52,275,016.00
April 25, 2008 May 25, 2008 56,709,232.00
May 25, 2008 June 25, 2008 60,689,529.00
June 25, 2008 July 25, 2008 64,242,820.00
July 25, 2008 August 25, 2008 67,398,228.00
August 25, 2008 September 25, 2008 70,186,689.00
September 25, 2008 October 25, 2008 72,630,703.00
October 25, 2008 November 25, 2008 74,753,119.00
November 25, 2008 December 25, 2008 76,578,948.00
December 25, 2008 January 25, 2009 78,141,739.00
January 25, 2009 February 25, 2009 79,551,839.00
February 25, 2009 March 25, 2009 83,501,062.00
March 25, 2009 April 25, 2009 86,339,010.00
April 25, 2009 May 25, 2009 87,465,920.00
May 25, 2009 June 25, 2009 87,199,795.00
June 25, 2009 July 25, 2009 86,566,981.00
July 25, 2009 August 25, 2009 78,276,315.00
August 25, 2009 September 25, 2009 64,286,928.00
September 25, 2009 October 25, 2009 54,254,002.00
October 25, 2009 November 25, 2009 51,838,442.00
November 25, 2009 December 25, 2009 49,411,276.00
December 25, 2009 January 25, 2010 46,979,529.00
January 25, 2010 February 25, 2010 44,549,757.00
February 25, 2010 March 25, 2010 50,192,271.00
March 25, 2010 April 25, 2010 58,125,898.00
April 25, 2010 May 25, 2010 65,642,866.00
May 25, 2010 June 25, 2010 65,158,236.00
June 25, 2010 July 25, 2010 63,839,615.00
July 25, 2010 August 25, 2010 62,505,755.00
August 25, 2010 September 25, 2010 61,161,393.00
September 25, 2010 October 25, 2010 59,810,585.00
October 25, 2010 November 25, 2010 58,457,115.00
November 25, 2010 December 25, 2010 57,104,407.00
December 25, 2010 January 25, 2011 55,755,543.00
January 25, 2011 February 25, 2011 54,413,289.00
February 25, 2011 March 25, 2011 53,080,128.00
March 25, 2011 April 25, 2011 51,758,258.00
April 25, 2011 May 25, 2011 50,449,639.00
May 25, 2011 June 25, 2011 49,156,003.00
June 25, 2011 July 25, 2011 47,878,877.00
July 25, 2011 August 25, 2011 46,619,592.00
August 25, 2011 September 25, 2011 45,379,301.00
September 25, 2011 October 25, 2011 44,159,007.00
October 25, 2011 November 25, 2011 42,959,561.00
November 25, 2011 December 25, 2011 41,781,660.00
December 25, 2011 January 25, 2012 40,625,907.00
January 25, 2012 February 25, 2012 39,492,344.00
February 25, 2012 March 25, 2012 38,377,615.00
---------------------
* Subject to adjustment in accordance with the Modified Following Business
Day Convention.
EXHIBIT Y
FORM OF SERVICER REMITTANCE REPORT
Exhibit 1: Layout
------------------------------------------------------------------------------------------------------------------------------------
Format
Column Name Description Decimal Comment Max Size
------------------------------------------------------------------------------------------------------------------------------------
Each file requires the following fields:
------------------------------------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 20 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.
------------------------------------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar signs 11
scheduled interest payment that a ($)
borrower is expected to pay, P&I
constant.
------------------------------------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as reported by 4 Max length of 6 6
the Servicer.
------------------------------------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
------------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
------------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a loan 2 No commas(,) or dollar signs 11
as reported by the Servicer. ($)
------------------------------------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
------------------------------------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
------------------------------------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
------------------------------------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs 11
balance at the beginning of the ($)
processing cycle.
------------------------------------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs 11
balance at the end of the processing ($)
cycle.
------------------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next payment
is due to the Servicer, as reported by
Servicer.
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs 11
applied. ($)
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated with MM/DD/YYYY 10
the 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 MM/DD/YYYY 10
the second curtailment amount.
------------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs 11
curtailment amount, if applicable. ($)
------------------------------------------------------------------------------------------------------------------------------------
Standard Loan Level File Layout
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs 11
applied. ($)
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated with MM/DD/YYYY 10
the 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 MM/DD/YYYY 10
the Servicer.
------------------------------------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numeric code used to Action Code Key: 2
indicate the default/delinquent status 15=Bankruptcy,
of a particular loan. 00xXxxxxxxxxxx, , 00xXXX,
63=Substitution,
65=Repurchase,70=REO
------------------------------------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest adjustment 2 No commas(,) or dollar signs 11
as 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. ($)
------------------------------------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is passing as 2 No commas(,) or dollar signs 11
a loss, if applicable. ($)
------------------------------------------------------------------------------------------------------------------------------------
Plus the following applicable fields:
------------------------------------------------------------------------------------------------------------------------------------
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 ($)
current cycle -- only applicable for
Scheduled/Scheduled Loans.
------------------------------------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest amount 2 No commas(,) or dollar signs 11
less the service fee amount for the ($)
current cycle as reported by the
Servicer -- only applicable for
Scheduled/Scheduled Loans.
------------------------------------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount collected 2 No commas(,) or dollar signs 11
by 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 30
or numeric
------------------------------------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar signs 11
interest advances made by Servicer. ($)
------------------------------------------------------------------------------------------------------------------------------------
Flag to indicate if the repurchase of Y=Breach 1
a loan is due to a breach of N=NO Breach
BREACH_FLAG Representations and Warranties Let blank if N/A
------------------------------------------------------------------------------------------------------------------------------------
Exhibit 2: Monthly Summary Report by Single Investor
MONTHLY SUMMARY REPORT
For Month Ended: mm/dd/yyyy Servicer Name_________________________
Prepared by:__________________________ Investor Nbr__________________________
Section 1. Remittances and Ending Balances - Required Data
----------------------------------------------------------------------------------------
Beginning Ending Total Monthly Total Ending Unpaid Total Monthly Principal
Loan Count Loan Count Remittance Amo Principal Balance Balance
----------------------------------------------------------------------------------------
0 0 $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------
Principal Calculation
---------------------
1. Monthly Principal Due + $0.00
----------
2. Current Curtailments + $0.00
----------
3. Liquidations + $0.00
----------
4. Other (attach explanation) + $0.00
----------
5. Principal Due $0.00
----------
6. Interest (reported "gross") + $0.00
----------
7. Interest Adjustments on Curtailments + $0.00
----------
8. Servicing Fees - $0.00
----------
9. Other Interest (attach explanation) + $0.00
----------
10. Interest Due (need to subtract ser fee) $0.00
==========
Remittance Calculation
----------------------
11. Total Principal and Interest Due (lines 5+10) + $0.00
----------
12. Reimbursement of Non-Recoverable Advances - $0.00
----------
13. Total Realized gains + $0.00
----------
14. Total Realized Losses - $0.00
----------
15. Total Prepayment Penalties + $0.00
----------
16. Total Non-Supported Compensating Interest - $0.00
----------
17. Other (attach explanation) $0.00
----------
18. Net Funds Due on or before Remittance Date $ $0.00
==========
Section 2. Delinquency Report - Optional Data for Loan Accounting
--------------------------------------------------------------------------------------------
Installments Delinquent
--------------------------------------------------------------------------------------------
Total No. Total No. In Real Estate Total Dollar
of of 30- 60- 90 or more Foreclosure Owned Amount of
Loans Delinquencies Days Days Days (Optional) (Optional) Delinquencies
--------------------------------------------------------------------------------------------
0 0 0 0 0 0 0 $0.00
--------------------------------------------------------------------------------------------
Section 3. REG AB Summary Reporting - REPORT ALL APPLICABLE FIELDS
---------------------------------------------------------------------
REG XX XXXXXX LOAN COUNT BALANCE
---------------------------------------------------------------------
PREPAYMENT PENALTY AMT 0 $0.00
PREPAYMENT PENALTY AMT WAIVED 0 $0.00
DELINQUENCY P&I AMOUNT 0 $0.00
---------------------------------------------------------------------
EXHIBIT Z
FORM OF MONTHLY DEFAULTED LOAN REPORT
Exhibit : Standard File Layout - Delinquency Reporting
------------------------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
------------------------------------------------------------------------------------------------------------------------------------
*The column/header names in bold are the minimum fields Xxxxx Fargo must receive
from every Servicer
------------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
payment is due to the MM/DD/YYYY
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 been MM/DD/YYYY
approved by the courts
------------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
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 To MM/DD/YYYY
End/Close
------------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to
the servicer with MM/DD/YYYY
instructions to begin foreclosure
proceedings.
------------------------------------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
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 to MM/DD/YYYY
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 foreclosure sale. 2 No 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 of the MM/DD/YYYY
property from the borrower.
------------------------------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
------------------------------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by the MM/DD/YYYY
Servicer.
------------------------------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is scheduled to MM/DD/YYYY
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 on 2
brokers price opinion or appraisal.
------------------------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
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 Mortgage MM/DD/YYYY
Insurance Company.
------------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
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 ($)
------------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The MM/DD/YYYY
Pool Insurer
------------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
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 ($)
------------------------------------------------------------------------------------------------------------------------------------
MOTION_FOR_RELIEF_DATE The date the Motion for Relief was filed 10 MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
FRCLSR_BID_AMT The foreclosure sale bid amount No commas(,) or
11 dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_TYPE The foreclosure sales results: REO, Third Party,
Conveyance to HUD/VA
------------------------------------------------------------------------------------------------------------------------------------
REO_PROCEEDS The net proceeds from the sale of the REO property. No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
BPO_DATE The date the BPO was done.
------------------------------------------------------------------------------------------------------------------------------------
CURRENT_FICO The current FICO score
------------------------------------------------------------------------------------------------------------------------------------
HAZARD_CLAIM_FILED_DATE The date the Hazard Claim was filed with the Hazard MM/DD/YYYY
Insurance Company. 10
------------------------------------------------------------------------------------------------------------------------------------
HAZARD_CLAIM_AMT The amount of the Hazard Insurance Claim filed. No commas(,) or
11 dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
HAZARD_CLAIM_PAID_DATE The date the Hazard Insurance Company disbursed the MM/DD/YYYY
claim payment. 10
------------------------------------------------------------------------------------------------------------------------------------
HAZARD_CLAIM_PAID_AMT The amount the Hazard Insurance Company paid on the No commas(,) or
claim. 11 dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
ACTION_CODE Indicates loan status Number
------------------------------------------------------------------------------------------------------------------------------------
NOD_DATE MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
NOI_DATE MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
ACTUAL_PAYMENT_PLAN_START_DATE MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
ACTUAL_PAYMENT_ PLAN_END_DATE
------------------------------------------------------------------------------------------------------------------------------------
ACTUAL_REO_START_DATE MM/DD/YYYY
------------------------------------------------------------------------------------------------------------------------------------
REO_SALES_PRICE Number
------------------------------------------------------------------------------------------------------------------------------------
REALIZED_LOSS/GAIN As defined in the Servicing Agreement Number
------------------------------------------------------------------------------------------------------------------------------------
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 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 AA
Form of Realized Loss Report
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.
(j) 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.
(k) 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
----------- --------- --------- ---------- ----------- --------- --------
----------- --------- --------- ---------- ----------- --------- --------
----------- --------- --------- ---------- ----------- --------- --------
----------- --------- --------- ---------- ----------- --------- --------
----------- --------- --------- ---------- ----------- --------- --------
----------- --------- --------- ---------- ----------- --------- --------
----------- --------- --------- ---------- ----------- --------- --------
----------- --------- --------- ---------- ----------- --------- --------
----------- --------- --------- ---------- ----------- --------- --------
(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.
