GSR MORTGAGE LOAN TRUST 2006-OA1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA1 MASTER SERVICING and TRUST AGREEMENT among GS MORTGAGE SECURITIES CORP., as Depositor, WELLS FARGO BANK, N.A., as Securities Administrator and Master Servicer and...
EXECUTION
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-OA1
MASTER
SERVICING
and
among
GS
MORTGAGE SECURITIES CORP.,
as
Depositor,
▇▇▇▇▇
FARGO BANK, N.A.,
as
Securities Administrator and Master Servicer
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee and Custodian
Dated
as of August 1, 2006
TABLE
OF CONTENTS
|
|
Page
|
|
ARTICLE
I
|
|
|
|
|
|
DEFINITIONS
|
|
|
|
|
|
Section
1.01 Definitions
|
10
|
|
ARTICLE
II
|
|
|
|
|
|
CONVEYANCE
OF DEPOSITOR’S INTEREST IN TRUST FUND; REPRESENTATIONS AND
WARRANTIES
|
|
|
|
|
|
Section
2.01 Conveyance of Mortgage Loans
|
10
|
|
Section
2.02 Acceptance by the Custodian of the Mortgage Loans; Assignments
to the
Trustee
|
12
|
|
Section
2.03 Execution and Delivery of Certificates
|
14
|
|
Section
2.04 REMIC Matters
|
14
|
|
Section
2.05 Representations and Warranties of the Depositor
|
14
|
|
Section
2.06 Representations and Warranties of Deutsche Bank
|
16
|
|
ARTICLE
III
|
|
|
TRUST
ACCOUNTS
|
|
|
Section
3.01 Excess Reserve Fund Account; Certificate Account
|
16
|
|
Section
3.02 Investment of Funds in the Certificate Account
|
18
|
|
ARTICLE
IV
|
|
|
DISTRIBUTIONS
|
|
|
Section
4.01 Priorities of Distribution
|
20
|
|
Section
4.02 Monthly Statements to Certificateholders
|
26
|
|
Section
4.03 Allocation of Applied Realized Loss Amounts
|
28
|
|
Section
4.04 Certain Matters Relating to the Determination of
LIBOR
|
28
|
|
ARTICLE
V
|
|
|
THE
CERTIFICATES
|
|
|
Section
5.01 The Certificates
|
29
|
|
Section
5.02 Certificate Register; Registration of Transfer and Exchange
of
Certificates
|
30
|
i
|
Section
5.03 Mutilated, Destroyed, Lost or Stolen Certificates
|
35
|
|
Section
5.04 Persons Deemed Owners
|
36
|
|
Section
5.05 Access to List of Certificateholders’ Names and
Addresses
|
36
|
|
Section
5.06 Maintenance of Office or Agency
|
36
|
|
ARTICLE
VI
|
|
|
THE
DEPOSITOR
|
|
|
Section
6.01 Liabilities of the Depositor
|
36
|
|
Section
6.02 Merger or Consolidation of the Depositor
|
36
|
|
Section
6.03 Limitation on Liability of the Depositor and Others
|
37
|
|
Section
6.04 Servicing Compliance Review
|
37
|
|
ARTICLE
VII
|
|
|
SERVICER
DEFAULT
|
|
|
Section
7.01 Events of Default
|
37
|
|
Section
7.02 Master Servicer to Act; Appointment of Successor
|
38
|
|
Section
7.03 Master Servicer to Act as Servicer
|
39
|
|
Section
7.04 Notification to Certificateholders
|
39
|
|
ARTICLE
VIII
|
|
|
CONCERNING
THE TRUSTEE AND THE CUSTODIAN
|
|
|
Section
8.01 Duties of the Trustee and the Custodian
|
40
|
|
Section
8.02 [Reserved]
|
41
|
|
Section
8.03 Certain Matters Affecting the Trustee and the
Custodian
|
41
|
|
Section
8.04 Trustee and Custodian Not Liable for Certificates or Mortgage
Loans
|
42
|
|
Section
8.05 Trustee May Own Certificates
|
43
|
|
Section
8.06 Trustee’s Fees and Expenses
|
43
|
|
Section
8.07 Eligibility Requirements for the Trustee
|
44
|
|
Section
8.08 Resignation and Removal of the Trustee
|
44
|
|
Section
8.09 Successor Trustee
|
45
|
|
Section
8.10 Merger or Consolidation of the Trustee or the
Custodian
|
45
|
|
Section
8.11 Appointment of Co-Trustee or Separate Trustee
|
46
|
|
Section
8.12 Tax Matters
|
47
|
|
Section
8.13 [Reserved]
|
50
|
|
Section
8.14 Tax Classification of the Excess Reserve Fund Account
|
50
|
|
Section
8.15 Tax Classification of the Excess Reserve Fund Account
|
Error!
Bookmark not defined.
|
|
Section
8.16 Custodial Responsibilities
|
51
|
ii
|
ARTICLE
IX
|
|
|
ADMINISTRATION
OF THE MORTGAGE LOANS BY THE MASTER SERVICER
|
|
|
Section
9.01 Duties of the Master Servicer; Enforcement of Servicer’s
Obligations
|
52
|
|
Section
9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance
|
53
|
|
Section
9.03 Representations and Warranties of the Master Servicer and
Others
|
53
|
|
Section
9.04 Master Servicer Events of Default
|
55
|
|
Section
9.05 Waiver of Default
|
57
|
|
Section
9.06 Successor to the Master Servicer
|
57
|
|
Section
9.07 Compensation of the Master Servicer
|
59
|
|
Section
9.08 Merger or Consolidation
|
59
|
|
Section
9.09 Resignation of the Master Servicer
|
59
|
|
Section
9.10 Assignment or Delegation of Duties by the Master
Servicer
|
59
|
|
Section
9.11 Limitation on Liability of the Master Servicer
|
60
|
|
Section
9.12 Indemnification; Third Party Claims
|
60
|
|
ARTICLE
X
|
|
|
CONCERNING
THE SECURITIES ADMINISTRATOR
|
|
|
Section
10.01 Duties of the Securities Administrator
|
61
|
|
Section
10.02 Certain Matters Affecting the Securities
Administrator
|
62
|
|
Section
10.03 Securities Administrator Not Liable for Certificates or Mortgage
Loans
|
64
|
|
Section
10.04 Securities Administrator May Own Certificates
|
64
|
|
Section
10.05 Securities Administrator’s Fees and Expenses
|
64
|
|
Section
10.06 Eligibility Requirements for the Securities
Administrator
|
65
|
|
Section
10.07 Resignation and Removal of the Securities
Administrator
|
66
|
|
Section
10.08 Successor Securities Administrator
|
67
|
|
Section
10.09 Merger or Consolidation of the Securities
Administrator
|
68
|
|
Section
10.10 Assignment or Delegation of Duties by the Securities
Administrator
|
68
|
|
ARTICLE
XI
|
|
|
TERMINATION
|
|
|
Section
11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans
|
68
|
|
Section
11.02 Final Distribution on the Certificates
|
69
|
|
Section
11.03 Additional Termination Requirements
|
71
|
|
ARTICLE
XII
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
12.01 Amendment
|
71
|
iii
|
Section
12.02 Recordation of Agreement; Counterparts
|
73
|
|
Section
12.03 Governing Law
|
73
|
|
Section
12.04 Intention of Parties
|
74
|
|
Section
12.05 Notices
|
74
|
|
Section
12.06 Severability of Provisions
|
75
|
|
Section
12.07 Limitation on Rights of Certificateholders
|
75
|
|
Section
12.08 Certificates Nonassessable and Fully Paid
|
76
|
|
Section
12.09 Waiver of Jury Trial
|
76
|
|
ARTICLE
XIII
|
|
|
EXCHANGE
ACT REPORTING
|
|
|
Section
13.01 Filing Obligations.
|
77
|
|
Section
13.02 Form 8-K Filings.
|
77
|
|
Section
13.03 Form 10-D Filings.
|
79
|
|
Section
13.04 Form 10-K Filings.
|
80
|
|
Section
13.05 Form 15 Filing.
|
81
|
|
Section
13.06 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
|
82
|
|
Section
13.07 Report on Assessment of Compliance and Attestation.
|
83
|
|
Section
13.08 Use of Subservicers and Subcontractors.
|
84
|
iv
|
SCHEDULES
|
|
|
Schedule
I
|
Mortgage
Loan Schedule
|
|
Schedule
II
|
Schedule
of First Payment Default Mortgage Loans
|
|
EXHIBITS
|
|
|
Exhibit
A
|
Forms
of Class A Certificates and Class M Certificates
|
|
Exhibit
B
|
Form
of Class P Certificates
|
|
Exhibit
C
|
Forms
of Class R, Class RC and Class RX Certificates
|
|
Exhibit
D
|
Form
of Class X Certificates
|
|
Exhibit
E
|
Form
of Initial Certification of Custodian
|
|
Exhibit
F
|
Form
of Document Certification and Exception Report of
Custodian
|
|
Exhibit
G
|
Form
of Residual Transfer Affidavit
|
|
Exhibit
H
|
Form
of Transferor Certificate
|
|
Exhibit
I
|
Form
of Rule 144A Letter
|
|
Exhibit
J-1
|
Form
of Back-up Certification (Master Servicer)
|
|
Exhibit
J-2
|
Form
of Back-up Certification (Securities Administrator)
|
|
Exhibit
K
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
|
Exhibit
L
|
Form
of Request for Release of Documents (Deutsche Bank National Trust
Company)
|
|
Exhibit
M
|
Form
8-K Disclosure Information
|
|
Exhibit
N
|
Additional
Form 10-D Disclosure
|
|
Exhibit
O
|
Additional
Form 10-K Disclosure
|
v
This
MASTER SERVICING AND TRUST AGREEMENT dated as of August 1, 2006, as supplemented
by the Standard Terms to Master Servicing and Trust Agreement (August 2006
Edition) (collectively, the “Trust
Agreement”
or
this
“Agreement”),
is
hereby executed by and among GS MORTGAGE SECURITIES CORP., a Delaware
corporation (the “Depositor”),
DEUTSCHE BANK NATIONAL TRUST COMPANY (“Deutsche
Bank”),
as
trustee (in such capacity, the “Trustee”)
and as
custodian (in such capacity, the “Custodian”)
and
▇▇▇▇▇ FARGO BANK, N.A. (“▇▇▇▇▇
Fargo”),
as
master servicer (in such capacity, the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”).
WITNESSETH:
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Securities Administrator on behalf of the Trust shall elect that four segregated
asset pools within the Trust Fund be treated for federal income tax purposes
as
comprising four REMICs (each, a “Trust
REMIC”
or,
in
the alternative, the “Lower-Tier REMIC,” the “Upper-Tier REMIC,” the “Class X
REMIC” and the “Class P REMIC”). The Class X Interest, the Class P Interest
and each Class of LIBOR Certificates and COFI Certificates (exclusive of the
right to receive Basis Risk Carry Forward Amounts), represents ownership of
a
regular interest in the Upper-Tier REMIC for purposes of the REMIC Provisions.
The Class R Certificates represent ownership of the sole class of residual
interest in the Upper-Tier REMIC, the Class RC Certificates represent ownership
of the sole class of residual interest in the Lower-Tier REMIC and the Class
RX
Certificates represent ownership of the sole class of residual interest in
the
Class X REMIC and Class P REMIC for purposes of the REMIC Provisions. The
Startup Day for each REMIC described herein is the Closing Date. The latest
possible maturity date for each Certificate is the latest date referenced in
Section 2.04. The Class X REMIC shall hold as its assets the Class X Interest
and the Class P REMIC shall hold as its assets the Class P Interest, in each
case, 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 assets described in the definition
of
“Trust Fund” herein (other than the Excess Reserve Fund Account). Each
Lower-Tier Regular Interest is hereby designated as a regular interest in the
Lower-Tier REMIC. The Class LT-1-A-1, Class LT-2-A-1, Class LT-2-A-2, Class
LT-2-A-3, Class LT-3-A-1, Class LT-3-A-2, 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”).
Each
Class of LIBOR Certificates and COFI Certificates represents beneficial
ownership of a regular interest in the Upper-Tier REMIC and the right to receive
Basis Risk Carry Forward Amounts, the Class P Certificates represent beneficial
ownership of a regular interest in the Class P REMIC, and the Class X
Certificates represent beneficial ownership of a regular interest in the Class
X
REMIC and the Excess Reserve Fund Account.
The
Lower-Tier REMIC
The
Lower-Tier REMIC Interests will have the Initial Principal Balances and
Pass-Through Rates as set forth in the following table:
|
Lower-Tier
Interest Designation
|
Lower-Tier
Interest
Rate
|
Initial
Lower-Tier Principal Amount
|
Corresponding
Upper-Tier
REMIC Class
|
|||
|
Class
LT-1-A-1
|
(1)
|
¼
initial Class Principal Balance of Corresponding Upper-Tier REMIC
Regular
Interest
|
1-A-1
|
|||
|
Class
LT-1-GSA
|
(1)
|
(2)
|
N/A
|
|||
|
Class
LT-1-Pool
|
(1)
|
(3)
|
N/A
|
|||
|
Class
LT-2-A-1
|
(4)
|
¼
initial Class Principal Balance of Corresponding Upper-Tier REMIC
Regular
Interest
|
2-A-1
|
|||
|
Class
LT-2-A-2
|
(4)
|
¼
initial Class Principal Balance of Corresponding Upper-Tier REMIC
Regular
Interest
|
2-A-2
|
|||
|
Class
LT-2-A-3
|
(4)
|
¼
initial Class Principal Balance of Corresponding Upper-Tier REMIC
Regular
Interest
|
2-A-3
|
|||
|
Class
LT-2-GSA
|
(4)
|
(5)
|
N/A
|
|||
|
Class
LT-2-Pool
|
(4)
|
(6)
|
N/A
|
|||
|
Class
LT-3-A-1
|
(7)
|
¼
initial Class Principal Balance of Corresponding Upper-Tier REMIC
Regular
Interest
|
3-A-1
|
|||
|
Class
LT-3-A-2
|
(7)
|
¼
initial Class Principal Balance of Corresponding Upper-Tier REMIC
Regular
Interest
|
3-A-2
|
|||
|
Class
LT-3-GSA
|
(7)
|
(8)
|
N/A
|
|||
|
Class
LT-3-Pool
|
(7)
|
(9)
|
N/A
|
|||
|
Class
LT-Accrual
|
(10)
|
(11)
|
N/A
|
(1) For
each
Distribution Date, the interest rate will be the Net WAC Cap Rate for the Group
1 Mortgage Loans.
(2) This
interest shall have an initial Principal Amount equal to 1% of the Stated
Principal Balance of the Group 1 Mortgage Loans as of the Cut-off Date.
(3) This
interest shall have an initial Principal Amount equal to 50% of the Stated
Principal Balance of the Group 1 Mortgage Loans as of the Cut-off Date less
the
sum of the initial
Principal Amounts of the Class
LT-1-A-1 and Class LT-1-GSA Interests.
(4) For
each
Distribution Date, the interest rate will be the Net WAC Cap Rate for the Group
2 Mortgage Loans.
2
(5) This
interest shall have an initial Principal Amount equal to 1% of the Stated
Principal Balance of the Group 2 Mortgage Loans as of the Cut-off Date.
(6) This
interest shall have an initial Principal Amount equal to 50% of the Stated
Principal Balance of the Group 2 Mortgage Loans as of the Cut-off Date less
the
sum of the initial Principal Amounts of the Class LT-2-A-1, Class LT-2-A-2,
Class LT-2-A3 and LT-2-GSA Interests.
(7) For
each
Distribution Date, the interest rate will be the Net WAC Cap Rate for the Group
3 Mortgage Loans.
(8) This
interest shall have an initial Principal Amount equal to 1% of the Stated
Principal Balance of the Group 3 Mortgage Loans as of the Cut-off Date.
(9) This
interest shall have an initial Principal Amount equal to 50% of the Stated
Principal Balance of the Group 3 Mortgage Loans as of the Cut-off Date less
the
sum of the initial Principal Amounts of the Class LT-3-A-1, Class LT-3-A-2
and
LT-3-GSA Interests.
(10) For
each
Distribution Date, the interest rate will be the Net WAC Cap Rate, determined
on
the basis of all the Mortgage Loans.
(11) This
interest shall have an initial Principal Amount equal to 50% of the Stated
Principal Balance of all the Mortgage Loans as of the Cut-off Date.
On
each
Distribution Date, the Available Funds for each Loan Group shall be distributed
as interest with respect to the Lower Tier Interests based on the interest
rates
described above.
On
each
Distribution Date, the remaining Available Funds for each Loan Group shall
be
distributed as principal on Lower Tier Interests in REMIC 1 as follows:
|
(i)
|
to
each Lower-Tier Interest with a Corresponding Upper-Tier REMIC Class,
until the principal balance of each such Lower-Tier Interest equals
one-quarter of the principal balance of the related Upper-Tier REMIC
Class
as of such Distribution Date;
|
|
(ii)
|
to
the Class LT-1-GSA, Class LT-2-GSA and Class LT-3-GSA Interests until
the
principal balance of each such Lower Tier Interest equals one percent
of
the Stated Principal Balance of Loan Group 1, Loan Group 2 and Loan
Group
3, respectively, for the next succeeding Distribution
Date;
|
|
(iii)
|
to
the Class LT-1-GSA, the Class LT-2-GSA or the Class LT-3-GSA Interests
the
minimum amount necessary to cause the ratio of the principal balance
of
each such Lower Tier Interest to the other two such Lower Tier Interests
to equal the ratio of the Group Subordinate Amount for the Pool related
to
such Lower Tier Interest to the Group Subordinate Amounts for the
Pools
related to the other two Lower Tier
Interests;
|
|
(iv)
|
to
the Class LT-1-Pool, the Class LT-2-Pool and the Class LT-3-Pool
Interests, pro
rata,
based upon their entitlements under clauses a., b. and c
below:
|
3
|
a.
|
to
the Class LT-1-Pool Interest until its principal balance equals the
excess
of (I) 50% of the Stated Principal Balance of Loan Group 1 on such
Distribution Date, over the sum of (II) the principal balances of
the
Class LT-1-GSA and Class LT-1-A-1 Interests on such Distribution
Date,
taking into account the distributions under priorities (i) through
(iii)
above;
|
|
b.
|
to
the Class LT-2-Pool Interest until its principal balance equals the
excess
of (I) 50% of the Stated Principal Balance of Loan Group 2 on such
Distribution Date, over the sum of (II) the principal balances of
the
Class LT-2-GSA, Class LT-2-A-1, Class LT-2-A-2 and Class LT-2-A-3
Interests on such Distribution Date, taking into account the distributions
under priorities (i) through (iii) above;
and
|
|
c.
|
to
the Class LT-3-Pool Interest until its principal balance equals the
excess
of (I) 50% of the Stated Principal Balance of Loan Group 3 on such
Distribution Date, over the sum of (II) the principal balances of
the
Class LT-3-GSA, Class LT-3-A-1 and Class LT-3-A-2 Interests on such
Distribution Date, taking into account the distributions under priorities
(i) through (iii) above; and
|
|
(v)
|
to
the Class LT-Accrual Interest until its principal balance equals
50% of
the Stated Principal Balance of the Mortgage Loans on such Distribution
Date.
|
On
each
Distribution Date, Realized Losses attributable to principal with respect to
any
Loan Group shall each be allocated among the Lower Tier Interests in the same
manner that principal is distributed among such Lower Tier
Interests.
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 25% of the Class Principal Balance of its Corresponding Class, and
(ii)
the Class LT-Accrual Interest is equal to 50% of the aggregate Stated Principal
Balance of the Mortgage Loans.
On
each
Distribution Date, Prepayment Premiums received in respect of the Mortgage
Loans
will be distributed to the Class LT-Accrual Interest.
In
addition to issuing the Lower-Tier Regular Interests, the Lower-Tier REMIC
shall
issue the Class R-1 Interest which shall be the sole class of residual interests
in the Lower-Tier REMIC. The Class RC Certificates will represent ownership
of
the Class R-1 Interest and will be issued as a single Certificate in definitive
form in a principal amount of $100 and shall have no interest rate. Amounts
received by the Class R-1 Interest shall be deemed paid from the Lower-Tier
REMIC.
4
The
Upper-Tier REMIC
The
Upper-Tier REMIC shall issue the following classes of Upper-Tier Regular
Interests, and each such interest, other than the Class UT-R Interest, is hereby
designated as a regular interest in the Upper-Tier REMIC.
|
Upper-Tier
Class
Designation
|
Upper-Tier
Interest
Rate
and
Corresponding
Class
Pass-Through Rate
|
Initial
Upper-Tier Principal Amount and Corresponding Class Principal
Balance
|
Corresponding
Class of Certificates
|
|||
|
Class
1-A-1
|
(1)
|
$744,970,000
|
Class
1-A-1(17)
|
|||
|
Class
2-A-1
|
(2)
|
$848,465,000
|
Class
2-A-1(17)
|
|||
|
Class
2-A-2
|
(3)
|
$353,527,000
|
Class
2-A-2(17)
|
|||
|
Class
2-A-3
|
(4)
|
$212,117,000
|
Class
2-A-3(17)
|
|||
|
Class
3-A-1
|
(5)
|
$146,888,000
|
Class
3-A-1(17)
|
|||
|
Class
3-A-2
|
(6)
|
$ 36,722,000
|
Class
3-A-2(17)
|
|||
|
Class
M-1
|
(7)
|
$ 62,195,000
|
Class
M-1(17)
|
|||
|
Class
M-2
|
(8)
|
$ 44,055,000
|
Class
M-2(17)
|
|||
|
Class
M-3
|
(9)
|
$ 18,140,000
|
Class
M-3(17)
|
|||
|
Class
M-4
|
(10)
|
$ 31,098,000
|
Class
M-4(17)
|
|||
|
Class
M-5
|
(11)
|
$ 12,957,000
|
Class
M-5(17)
|
|||
|
Class
M-6
|
(12)
|
$ 12,958,000
|
Class
M-6(17)
|
|||
|
Class
M-7
|
(13)
|
$ 12,957,000
|
Class
M-7(17)
|
|||
|
Class
M-8
|
(14)
|
$ 12,957,000
|
Class
M-8(17)
|
|||
|
Class
M-9
|
(15)
|
$ 12,958,000
|
Class
M-9(17)
|
|||
|
Class
X
|
(16)
|
(16)
|
Class
X(16)
|
|||
|
Class
P
|
(18)
|
(18)
|
Class
P(18)
|
|
(1)
|
The
Class 1-A-1 Interest will bear interest during each Interest Accrual
period at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.220% (0.440%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(2)
|
The
Class 2-A-1 Interest will bear interest during each Interest Accrual
period at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.190% (0.380%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(3)
|
The
Class 2-A-2 Interest will bear interest during each Interest Accrual
period at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.260% (0.520%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(4)
|
The
Class 2-A-3 Interest will bear interest during each Interest Accrual
period at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.290% (0.580%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(5)
|
The
Class 3-A-1 Interest will bear interest during each Interest Accrual
period at a per
annum
rate equal to the lesser of (i) COFI plus 1.500% and (ii) the Net
WAC Cap
Rate.
|
5
|
(6)
|
The
Class 3-A-2 Interest will bear interest during each Interest Accrual
period at a per
annum
rate equal to the lesser of (i) COFI plus 1.500% and (ii) the Net
WAC Cap
Rate.
|
|
(7)
|
The
Class M-1 Interest
will bear interest during each Interest Accrual Period at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.410% (0.615%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(8)
|
The
Class M-2 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.430% (0.645%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(9)
|
The
Class M-3 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.450% (0.675%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(10)
|
The
Class M-4 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.550% (0.825%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(11)
|
The
Class M-5 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 0.600% (0.900%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(12)
|
The
Class M-6 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 1.100% (1.650%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(13)
|
The
Class M-7 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 1.400% (2.100%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(14)
|
The
Class M-8 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 1.500% (2.250%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(15)
|
The
Class M-9 Interest will bear interest during each Interest Accrual
Period
at a per
annum
rate equal to the lesser of (i) one-month LIBOR plus 1.500% (2.250%
after
the Initial Optional Termination Date) and (ii) the Net WAC Cap
Rate.
|
|
(16)
|
The
Class X Interest will have an initial principal balance equal to
the
Overcollateralized Amount as of the Closing Date less $100.00. The
Class X
Interest will not accrue interest on such balance but will accrue
interest
on a notional principal balance. As of any Distribution Date, the
Class X
Interest shall have a notional principal balance equal to the aggregate
of
the principal balances of the Lower-Tier Regular Interests as of
the first
day of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class X Interest shall bear interest at a rate
equal
to the excess, if any, of the Net WAC Cap Rate over the product of
(i) 2
and (ii) the weighted average Lower-Tier Interest Rate of the Lower-Tier
Regular Interests, where the Lower-Tier Interest Rates on the Class
LT-Accrual Interest is subject to a cap equal to zero and each
LT-Accretion Directed Class is subject to a cap equal to the Pass-Through
Rate on its Corresponding Class. With respect to any Distribution
Date,
interest that so accrues on the notional principal balance of the
Class X
Interest shall be deferred in an amount equal to any increase in
the
Overcollateralized Amount on such Distribution Date. Such deferred
interest shall not itself bear interest. The Class X Certificates
will
represent beneficial ownership of a regular interest issued by the
Class X
REMIC and 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 the Class X
Certificateholders’ obligation to make payments from the Excess Reserve
Fund Account as payments made pursuant to an interest rate cap contract
written by the Class X Certificateholders in favor of each Class
of
Offered Certificates (other than the Residual Certificates). Such
rights
of the Class X Certificateholders and Holders of the Offered Certificates
(other than the Residual Certificates) 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.
|
6
|
(17)
|
Each
of the Certificates will bear interest at a pass through rate equal
to the
pass through rate in respect of its Corresponding Upper-Tier REMIC
Class.
Each of these Certificates will represent not only the ownership
of the
Corresponding Class of Upper-Tier Regular Interest but also the right
to
receive payments from the Excess Reserve Fund Account in respect
of any
Basis Risk Carry Forward Amounts. For federal income tax purposes,
the
Securities Administrator will treat a Certificateholder’s right to receive
payments from the Excess Reserve Fund Account as payments made pursuant
to
an interest rate cap contract written by the Class X
Certificateholders.
|
|
(18)
|
The
Class P Interest shall be entitled to all distributions in respect
of
Prepayment Premiums and shall be entitled to receive $100.00 as
principal.
|
In
addition to issuing the Upper-Tier Regular Interests, the Upper-Tier REMIC
shall
issue the Class R Certificates, which shall be the sole class of residual
interests in the Upper-Tier REMIC. The Class R Certificates shall be issued
as a
single Certificate in definitive form in a principal amount of $100 and shall
have no interest rate. Amounts received by the Class R Certificates shall be
deemed paid from the Upper-Tier REMIC.
Class
X REMIC
The
Class
X REMIC shall issue the following classes of interests. The Class X Certificates
shall represent a regular interest in the Class X REMIC and the Class RX
Certificates shall represent the sole class of residual interest in the Class
X
REMIC.
|
Class
X REMIC Designation
|
Interest
Rate
|
Class
X REMIC
Principal
Amount
|
||
|
Class
X Certificates
|
(1)
|
(1)
|
_________________
|
(1)
|
The
Class X Certificates are entitled to 100% of the interest and principal
on
the Class X Interest on each Distribution
Date.
|
7
In
addition to issuing the Class X Certificates, the Class X REMIC shall issue
the
Class RX-X Interest which shall be the sole class of residual interests in
the
Class X REMIC. The Class RX Certificates shall be issued as a single Certificate
in definitive form in a principal amount of $100 and shall have no interest
rate. The Class RX Certificates shall evidence ownership of the Class RX-X
Interest.
Class
P REMIC
The
Class
P REMIC shall issue the following classes of interests. The Class P Certificates
shall represent a regular interest in the Class P REMIC and the Class RX
Certificates shall represent ownership of the sole class of residual interest
in
the Class P REMIC.
|
Class
P REMIC Designation
|
Interest
Rate
|
Class
P REMIC
Principal
Amount
|
||
|
Class
P Certificates
|
(1)
|
$100(1)
|
_________________
|
(1)
|
The
Class P Certificates are entitled to 100% of the Prepayment Premiums
received on the Class P Interest on each Distribution
Date.
|
In
addition to issuing the Class P Certificates, the Class P REMIC shall issue
the
Class RX-P Interest which shall be the sole class of residual interests in
the
Class P REMIC. The Class RX Certificates shall evidence ownership of the Class
RX-P Interest.
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Upper-Tier REMIC as cash flow on a REMIC regular
interest, without creating any actual or potential shortfall (other than for
credit losses) to any Trust REMIC regular interest. It is not intended that
the
Class R, Class RC or Class RX Certificates be entitled to any cash flow pursuant
to this Agreement except as provided in Section 4.01(a)(ii)(A)(a)
hereunder.
For
any
purpose for which the Pass-Through Rates are calculated, the interest rate
on
the Mortgage Loans shall be appropriately adjusted to account for the difference
between the monthly day count convention of the Mortgage Loans and the monthly
day count convention of the regular interests issued by each of the REMICs.
For
purposes of calculating the Pass-Through Rates for each of the interests issued
by the Lower-Tier REMIC such rates shall be adjusted to equal a monthly day
count convention based on a 30 day month for each Due Period and a 360-day
year
so that the Mortgage Loans and all regular interests will be using the same
monthly day count convention.
The
minimum denomination for each Class of the Class A Certificates and the Class
M-1, Class M-2 and Class M-3 Certificates shall be $100,000 initial Certificate
Balance, with integral multiples of $1 in excess thereof except that one
Certificate in each Class may be issued in a different amount. The minimum
denomination for each Class of Class M-4, Class M-5, Class M-6, Class M-7,
Class
M-8 and Class M-9 Certificates shall be $250,000 initial Certificate Balance,
with integral multiples of $1 in excess thereof except that one Certificate
in
each Class may be issued in a different amount. The minimum denomination for
(a)
each Class of the Residual Certificates shall be $100 and each shall be a 100%
Percentage Interest in each such respective Class and (c) the Class P and Class
X Certificates shall be a 1% Percentage Interest in each such respective
Class.
8
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
Class
A Certificates
|
The
Class 1-A-1, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 3-A-1 and
Class
3-A-2 Certificates, collectively.
|
|
Class
M Certificates
|
The
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,
collectively.
|
|
COFI
Certificates
|
The
Class 3-A-1 and Class 3-A-2 Certificates.
|
|
Residual
Certificates
|
The
Class R, Class RC and Class RX Certificates.
|
|
ERISA
Restricted
Certificates
|
The
Private Certificates and any Certificate with a rating below the
lowest
applicable permitted rating under the Underwriters’
Exemption.
|
|
LIBOR
Certificates
|
The
Offered Certificates other than the COFI Certificates and the Residual
Certificates.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
|
Private
Certificates
|
The
Class P and Class X Certificates.
|
|
Physical
Certificates
|
The
Class R, Class RC, Class RX, Class P and Class X
Certificates.
|
|
Rating
Agencies
|
▇▇▇▇▇’▇
and S&P.
|
|
Regular
Certificates
|
All
Classes of Certificates other than the Residual
Certificates.
|
|
Subordinate
Certificates
|
The
Class M Certificates.
|
9
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
Capitalized terms used in this Agreement are defined in the Standard Terms
to
this Agreement or, if not defined therein, have the meanings given them in
the
applicable Servicing Agreement or Sale Agreement.
ARTICLE
II
CONVEYANCE
OF DEPOSITOR’S INTEREST IN TRUST FUND;
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Mortgage Loans.
a)
The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
benefit of the Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to the Trust Fund.
(b) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered or caused to be delivered to the Custodian on behalf of the
Trustee for the benefit of the Certificateholders the following documents or
instruments with respect to each applicable Mortgage Loan so
assigned:
(i) the
original Mortgage Note, endorsed without recourse in blank by the last endorsee,
including all intervening endorsements showing a complete chain of endorsement
from the originator to the last endorsee;
(ii) The
original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS
Loan;
(iii) personal
endorsement, surety and/or guaranty agreements executed in connection with
all
non individual Mortgage Loans (corporations, partnerships, trusts, estates,
etc.
(if any);
(iv) the
related original Mortgage and evidence of its recording or a certified copy
of
the Mortgage with evidence of recording;
(v) originals
of any intervening Mortgage assignment or certified copies in either case
necessary to show a complete chain of title from the original mortgagee to
the
seller and evidencing recording; provided
that
except in the case of the Goldman Conduit Mortgage Loans, the assignment may
be
in the form of a blanket assignment or assignments, a copy of which with
evidence of recording shall be acceptable;
(vi) originals
of all assumption, modification, consolidation or extension agreements or
certified copies thereof, in either case with evidence of recording if required
to maintain the lien of the mortgage or if otherwise required, or, if
recordation is not required, an original or copy of the agreement; provided
that in
the case of the Goldman Conduit Mortgage Loans, an original with evidence of
recording thereon is always required;
10
(vii) if
applicable to the files held by the Custodian, an original or copy of a title
insurance policy or evidence of title;
(viii) to
the
extent applicable, an original power of attorney;
(ix) for
each
Mortgage Loan (if applicable to the files held by the Custodian) with respect
to
which the Mortgagor’s name as it appears on the note does not match the
borrower’s name on the Mortgage Loan Schedule, one of the following: the
original of the assumption agreement, or a certified copy thereof, in either
case with evidence of recording thereon if required to maintain the lien of
the
mortgage or if otherwise required, or, if recordation is not so required, an
original or copy of such assumption agreement;
(x) if
applicable to the files held by the Custodian, a security agreement, chattel
mortgage or equivalent document executed in connection with the Mortgage, if
any; and
(xi) with
respect to each Mortgage Loan, the complete Custodial File including all items
as set forth in the applicable Servicing Agreement to the extent in the
possession of the Depositor or the Depositor’s Agents.
The
Depositor shall deliver or cause each Seller to deliver to the Custodian the
applicable recorded document promptly upon receipt from the respective recording
office but in no event later than 120 days from the Closing Date.
From
time
to time, pursuant to the applicable Sale Agreement, the Seller may forward
to
the Custodian additional original documents, additional documents evidencing
an
assumption, modification, consolidation or extension of a Mortgage Loan, in
accordance with the terms of the applicable Sale Agreement. All such mortgage
documents held by the Custodian as to each Mortgage Loan shall constitute the
“Custodial
File.”
On
or
prior to the Closing Date, the Depositor shall deliver to the Custodian
Assignments of Mortgages (except in the case of MERS Loans), in blank, for
each
applicable Mortgage Loan. On the Closing Date, the Trustee shall provide a
written request to each Seller to submit the Assignments of Mortgage for
recordation, at the Seller’s expense, pursuant to the applicable Sale Agreement.
The Custodian shall deliver the Assignment of Mortgages to be submitted for
recordation to the applicable Seller upon receipt of a written request for
release in standard and customary form as set forth in Exhibit
L.
On
or
prior to the Closing Date, the Depositor shall deliver to the Custodian and
the
Master Servicer a copy of the Mortgage Loan Schedule in electronic, machine
readable medium in a form mutually acceptable to the Depositor, the Custodian,
the Master Servicer and the Trustee.
11
In
the
event that such original or copy of any document submitted for recordation
to
the appropriate public recording office is not so delivered to the Custodian
within the time period and in the manner specified in the applicable Sale
Agreement, the Trustee shall take or cause to be taken such remedial actions
under the Sale Agreement against the applicable Seller as may be permitted
to be
taken thereunder, including without limitation, if applicable, the repurchase
by
the applicable Seller of such Mortgage Loan. The foregoing repurchase remedy
shall not apply in the event that the Seller cannot deliver such original or
copy of any document submitted for recordation to the appropriate public
recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided
that the
applicable Seller shall instead deliver a recording receipt of such recording
office or, if such recording receipt is not available, an officer’s certificate
of an officer of the applicable Seller, 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 Seller shall
be
deemed to have been satisfied upon delivery by the Seller to the Custodian
prior
to the Closing Date of a copy of such Mortgage or assignment, as the case may
be, certified (such certification to be an original thereof) by the public
recording office to be a true and complete copy of the recorded original
thereof.
(c) The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust (the
“Trust”)
to be
known, for convenience, as “GSR Mortgage Loan Trust 2006-OA1” and Deutsche Bank
is hereby appointed as Trustee in accordance with the provisions of this
Agreement.
(d) It
is the
policy and intention of the Trust that none of the Mortgage Loans included
in
the Trust is (a) covered by the Home Ownership and Equity Protection Act of
1994, or (b) considered a “high cost home,” “threshold,” “predatory” or
“covered” loan (excluding “covered home loans” as defined under clause (1) of
the definition of “covered home loans” in the New Jersey Home Ownership Security
Act of 2002) under applicable state, federal or local laws.
Section
2.02 Acceptance
by the Custodian of the Mortgage Loans; Assignments to the
Trustee.
(a) The
Custodian acknowledges receipt of the documents identified in the Initial
Certification, subject to any exceptions listed on the exception report attached
thereto, in the form annexed hereto as Exhibit
E,
and
declares that it holds and will hold such documents and the other documents
delivered to it pursuant to Section 2.01, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive
use
and benefit of all present and future Certificateholders. Deutsche Bank, as
Custodian, acknowledges that it will maintain possession of the Mortgage Notes
in the State of California, unless otherwise permitted by the Rating
Agencies.
Prior
to
and as a condition to the Closing, the Custodian shall deliver via facsimile
(with original to follow the next Business Day) to the Depositor an Initial
Certification prior to the Closing Date, or as the Depositor agrees to, on
the
Closing Date, certifying receipt of a Mortgage Note and Assignment of Mortgage,
subject to any exceptions listed on the exception report attached thereto,
for
each Mortgage Loan. The Custodian shall not be responsible for verifying the
validity, sufficiency or genuineness of any document in any Custodial
File.
12
On
the
Closing Date, the Custodian shall ascertain that all documents required to
be
delivered to it on or prior to the Closing Date are in its possession, subject
to any exceptions listed on the exception report attached thereto, and shall
deliver to the Depositor and the Trustee an Initial Certification, in the form
annexed hereto as Exhibit
E,
and
shall deliver to the Depositor and the Trustee a Document Certification and
Exception Report, in the form annexed hereto as Exhibit
F,
within
ninety (90) days after the Closing Date to the effect that, as to each
applicable Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in
such
certification as an exception and not covered by such certification): (i) all
documents required to be delivered to it are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; (iii) based on its examination and only as to the
foregoing documents, as to Deutsche Bank, the information set forth in items
2,
8, 33, and 34 of the Mortgage Loan Schedule respecting such Mortgage Loan is
correct; and (iv) each Mortgage Note has been endorsed as provided in Section
2.01 of this Agreement. The Custodian shall not be responsible for verifying
the
validity, sufficiency or genuineness of any document in any Custodial
File.
The
Custodian shall retain possession and custody of each applicable Custodial
File
in accordance with and subject to the terms and conditions set forth herein.
The
Servicer shall promptly deliver to the Custodian, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting
the
Custodial File as come into the possession of the Servicer from time to
time.
The
Custodian shall notify the Trustee of any Mortgage Loans that do not conform
to
the requirements of Sections 2.01 and 2.02 hereof by delivery of the Document
Certification and Exception Report. In its capacity as “Assignee” under the Step
2 Assignment Agreements, the Trustee shall enforce the obligation of the Sellers
to cure or repurchase Mortgage Loans that do not conform to such requirements
as
determined in the Custodian’s review as required herein, or based upon
notification from the Master Servicer (who shall be entitled to rely on
information regarding any such defaults by a Seller that has been provided
by
the applicable Servicer for purposes of providing such notification to the
Trustee), by notifying the applicable Seller to correct or cure such default.
(b) In
its
capacity as “Assignee” under the Step 2 Assignment Agreements, the Trustee shall
also enforce the obligation of the Sellers under the Sale Agreements, and to
the
extent applicable, of any Servicer under the Servicing Agreements, and of the
Purchaser under the Step 1 Assignment Agreements to cure or repurchase Mortgage
Loans for which there is a defect or a breach of a representation or warranty
thereunder of which a Responsible Officer of the Trustee has actual knowledge,
by notifying the applicable party to correct or cure such default; provided
that
with respect to any breach of a representation or warranty contained in a Sale
Agreement regarding a First Payment Default Mortgage Loan, the Trustee shall
only enforce the obligation of a Relevant Party to repurchase such First Payment
Default Mortgage Loan pursuant to the terms of the applicable Sale Agreement
if
the Trustee is directed to take such action by the Majority Class X
Certificateholder (the Majority Class X Certificateholder, by acceptance of
the
Class X Certificates, shall be deemed to consent to such obligation so to direct
the Trustee). If any Servicer, any Seller or the Purchaser, as the case may
be,
fails or is unable to correct or cure the defect or breach within the period
set
forth in the applicable agreement, the Trustee shall notify the Depositor of
such failure to correct or cure. Unless otherwise directed by the Depositor
within five (5) Business Days after notifying the Depositor of such failure
by
the applicable party to correct or cure, the Trustee shall notify such party
to
repurchase the Mortgage Loan. If, within ten (10) Business Days of receipt
of
such notice by such party, such party fails to repurchase such Mortgage Loan,
the Trustee shall notify the Depositor of such failure. The Trustee shall pursue
all legal remedies available to the Trustee against the Servicers, the Sellers
and the Purchaser, as applicable, under this Agreement, if the Trustee has
received written notice from the Depositor directing the Trustee to pursue
such
remedies.
13
Section
2.03 Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator
has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section
2.04 REMIC
Matters.
The
Preliminary Statement sets forth the designations for federal income tax
purposes of all interests created hereby. The “Startup
Day”
for
purposes of the REMIC Provisions shall be the Closing Date. The “latest possible
maturity date” is August 25, 2049, which is the Distribution Date following the
latest Mortgage Loan maturity date. Amounts paid to the Class X
Certificates (prior to any reduction for any Basis Risk Payment) shall be deemed
paid from the Upper-Tier REMIC to the Class X REMIC in respect of the
Class X Interest and from the Class X REMIC to the Holders of the
Class X Certificates prior to distribution of Basis Risk Payments to the
Offered Certificates (other than the Residual Certificates).
Amounts
distributable to the Class X Certificates, shall be deemed paid from the Class
X
REMIC to the Holders of the Class X Certificates prior to distribution of any
Basis Risk Payments to the Offered Certificates (other than the Residual
Certificates).
For
federal income tax purposes, any amount distributed on the Offered Certificates
(other than the Residual Certificates) on any such Distribution Date in excess
of their Pass Through Rate, calculated by substituting the REMIC Cap for the
applicable cap in respect of the related Certificates shall be treated as having
been paid from the Excess Reserve Fund Account.
Section
2.05 Representations
and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the Trustee that as
of
the date of this Agreement or as of such date specifically provided
herein:
(a) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware;
14
(b) The
Depositor has the corporate power and authority to convey the Mortgage Loans
and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and delivered by the
Depositor, all requisite corporate action having been taken, and, assuming
the
due authorization, execution and delivery hereof by the other parties hereto,
constitutes or will constitute the legal, valid and binding agreement of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless
of
whether such enforcement is considered in a proceeding in equity or at
law);
(d) No
consent, approval, authorization or order of or registration or filing with,
or
notice to, any governmental authority or court is required for the execution,
delivery and performance of or compliance by the Depositor with this Agreement
or the consummation by the Depositor of any of the transactions contemplated
hereby, except as have been made on or prior to the Closing Date;
(e) None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby or thereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will conflict
with or results or will result in a breach of, or constitutes or will constitute
a default or results or will result in an acceleration under (A) the charter
or
bylaws of the Depositor, or (B) any term, condition or provision of any material
indenture, deed of trust, contract or other agreement or instrument to which
the
Depositor or any of its subsidiaries is a party or by which it or any of its
subsidiaries is bound; (ii) results or will result in a violation of any law,
rule, regulation, order, judgment or decree applicable to the Depositor of
any
court or governmental authority having jurisdiction over the Depositor or its
subsidiaries; or (iii) results in the creation or imposition of any lien, charge
or encumbrance which would have a material adverse effect upon the Mortgage
Loans or any documents or instruments evidencing or securing the Mortgage
Loans;
(f) There
are
no actions, suits or proceedings before or against or investigations of, the
Depositor pending, or to the knowledge of the Depositor, threatened, before
any
court, administrative agency or other tribunal, and no notice of any such
action, which, in the Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its obligations under
this
Agreement, or the validity or enforceability of this Agreement;
(g) The
Depositor is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency that may materially and adversely affect its performance hereunder;
and
(h) Immediately
prior to the transfer and assignment by the Depositor to the Trustee on the
Closing Date, the Depositor had good title to, and was the sole owner of each
Mortgage Loan, free of any interest of any other Person, and the Depositor
has
transferred all right, title and interest in each Mortgage Loan to the Trustee.
The transfer of each Mortgage Note and each Mortgage as and in the manner
contemplated by this Agreement is sufficient either (i) fully to transfer to
the
Trustee, for the benefit of the Certificateholders, all right, title, and
interest of the Depositor thereto as note holder and mortgagee or (ii) to grant
to the Trustee, for the benefit of the Certificateholders, the security interest
referred to in Section 12.04 hereof.
15
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Custodial Files to
the
Custodian, and shall inure to the benefit and to
Certificateholders.
Section
2.06 Representations
and Warranties of Deutsche Bank.
Deutsche Bank, in its capacity as Custodian, hereby represents and warrants
to
the Depositor, the Master Servicer and the Trustee, as of the Closing
Date:
(a) The
Custodian is duly organized and is validly existing and in good standing under
the laws of its jurisdiction of incorporation and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by the Custodian or is otherwise not required under applicable law
to
effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under this Agreement in accordance with the terms
thereof.
(b) The
Custodian has the full power and authority to execute, deliver and perform,
and
to enter into and consummate the transactions contemplated by this Agreement
and
has duly authorized by all necessary action on the part of the Custodian the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of the
Custodian, enforceable against the Custodian in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) The
execution and delivery of this Agreement by the Custodian, the consummation
of
any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of the Custodian and will not result in a material breach of any
term or provision of the articles of incorporation or by laws of the
Custodian.
ARTICLE
III
TRUST
ACCOUNTS
Section
3.01 Excess
Reserve Fund Account; Certificate Account. b)
The
Securities Administrator shall establish and maintain the Excess Reserve Fund
Account to receive any Basis Risk Payment and to secure their limited recourse
obligation to pay to the Holders of the Offered Certificates (other than the
Residual Certificates) any Basis Risk Carry Forward Amounts. On each
Distribution Date, the Securities Administrator shall deposit the amount of
any
Basis Risk Payment received by it for such date into the Excess Reserve Fund
Account.
16
On
each
Distribution Date on which there exists a Basis Risk Carry Forward Amount on
any
Class or Classes of Offered Certificates (other than the Residual Certificates),
the Securities Administrator shall (1) withdraw from the Certificate Account,
to
the extent of funds available therefor in the Certificate Account, and deposit
in the Excess Reserve Fund Account, as set forth in Section 4.01(a)(iii)(f),
the
lesser of (x) the Class X Distributable Amount (without regard to the reduction
in clause (iii) of the definition thereof with respect to Basis Risk Payments)
(to the extent remaining after the distributions specified in Sections
4.01(a)(iii)(a)-(f)) and (y) the aggregate Basis Risk Carry Forward Amount
of
the Offered Certificates (other than the Residual Certificates) for such
Distribution Date and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of Certificates the related Basis
Risk
Carry Forward Amount. Such payments shall be allocated to those Classes based
upon the amount of Basis Risk Carry Forward Amount owed to each such Class
and
shall be paid in the priority set forth in Section 4.01(a)(iii)(g).
The
Securities Administrator shall account for the Excess Reserve Fund Account
as an
asset of a grantor trust under subpart E, Part I of subchapter J of the Code
and
not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders. For all federal income tax purposes, amounts transferred
to
the Excess Reserve Fund Account shall be treated as distributions by the
Securities Administrator from the Upper-Tier REMIC to the Class X Interest
and
from the Class X REMIC to the Class X Certificates and then contributed by
the
Class X Certificateholders to the Excess Reserve Fund Account.
Any
Basis
Risk Carry Forward Amounts distributed by the Securities Administrator to the
Holders of the Offered Certificates (other than the Residual Certificates)
shall
be accounted for by the Securities Administrator, for federal income tax
purposes, as amounts paid first to the Holders of the Class X Certificates
and
then to the respective Class or Classes of Offered Certificates (other than
the
Residual Certificates) in accordance with the priority of payments in this
Section 3.01. In addition, the Securities Administrator shall account for such
Offered Certificateholders’ rights to receive payments of Basis Risk Carry
Forward Amounts as rights in a limited recourse interest rate cap contract
written by the Class X Certificateholders in favor of the Holders of each such
Class.
Notwithstanding
any provision contained in this Agreement, the Securities Administrator shall
not be required to make any distributions from the Excess Reserve Fund Account
except as expressly set forth in this Section 3.01(a).
(b) The
Securities Administrator shall establish and maintain the Certificate Account
on
behalf of the Certificateholders. So long as ▇▇▇▇▇ Fargo shall be both the
Master Servicer and the Securities Administrator, the Master Servicer Account
shall be the same account as, or a sub-account of, the Certificate Account.
The
amount remitted by the Servicer to the Master Servicer on each Remittance Date
shall be credited to the Certificate Account within two (2) Business Days once
the amounts are identified as a remittance in connection with the Trust and
reconciled to the reports provided by the Servicer. The Securities Administrator
shall establish and maintain the Certificate Account on behalf of the
Certificateholders. The Master Servicer shall, promptly upon receipt on the
Business Day received, deposit in the Certificate Account and retain therein
the
following:
17
(i) the
aggregate amount remitted by the Servicers to the Master Servicer pursuant
to
the Servicing Agreements;
(ii) any
First
Payment Default Purchase Price received in respect of the repurchase of a First
Payment Default Mortgage Loan; and
(iii) any
other
amounts deposited hereunder which are required to be deposited in the
Certificate Account.
In
the
event that any Servicer shall remit any amount not required to be remitted
pursuant to the applicable Servicing Agreement, and such Servicer directs the
Master Servicer in writing to withdraw such amount from the Certificate Account,
the Master Servicer shall return such funds to the applicable Servicer. All
funds deposited in the Certificate Account shall be held by the Securities
Administrator in trust for the Certificateholders until disbursed in accordance
with this Agreement or withdrawn in accordance with Section 4.01.
(c) From
time
to time, the Securities Administrator may also establish any other accounts
for
the purposes of carrying out its duties hereunder.
Section
3.02 Investment
of Funds in the Certificate Account.
c)
Other
than during the Master Servicer Float Period, the Depositor shall direct the
investment of funds held in the Certificate Account in one or more Permitted
Investments. Absent such direction, the Securities Administrator shall invest
such funds during such period in the ▇▇▇▇▇ Fargo Advantage Prime Investment
Money Market Fund so long as such fund is a Permitted Investment. The Securities
Administrator may (but shall not be obligated to) invest funds in the
Certificate Account during the Master Servicer Float Period (for purposes of
this Section 3.02, such Account is referred to as an “Investment
Account”),
in
one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, or maturing on such Distribution Date,
in
the case of an investment that is an obligation of ▇▇▇▇▇ Fargo, no later than
the Business Day immediately preceding the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Securities
Administrator. The Securities Administrator shall be entitled to sole possession
over each such investment, and any certificate or other instrument evidencing
any such investment shall be delivered directly to the Securities Administrator
or its agent, together with any document of transfer necessary to transfer
title
to such investment to the Securities Administrator. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Securities Administrator may:
|
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then
payable thereunder and (2) the amount required to be withdrawn on
such
date; and
|
18
|
(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
Certificate Account held by the Securities Administrator during the Master
Servicer Float Period shall be subject to the Securities Administrator’s
withdrawal in the manner set forth in Section 10.05.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Securities
Administrator shall take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
proceedings. Notwithstanding the foregoing, the Depositor shall be liable to
the
Trust for any loss on any investment of funds in the Certificate Account other
than during the Master Servicer Float Period and the Securities Administrator
shall be liable to the Trust for any such loss on any funds it has invested
under this Section 3.02 only during the Master Servicer Float Period, and the
Depositor or the Securities Administrator, as the case may be, shall deposit
funds in the amount of such loss in the Certificate Account promptly after
such
loss is incurred.
(d) The
Securities Administrator or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Securities Administrator’s
economic self-interest for (i) serving as investment adviser, administrator,
shareholder, servicing agent, custodian or sub-custodian with respect to certain
of the Permitted Investments, (ii) using Affiliates to effect transactions
in
certain Permitted Investments and (iii) effecting transactions in certain
Permitted Investments. Such compensation is not payable or reimbursable under
Section 8.06 of this Agreement.
(e) In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, Deutsche Bank as Trustee and as Custodian is required to obtain,
verify and record certain information relating to individuals and entities
which
maintain a business relationship with Deutsche Bank. Accordingly, each of the
parties agrees to provide to Deutsche Bank upon its request from time to time
such party’s complete name, address, tax identification number and such other
identifying information together with copies of such party’s constituting
documentation, securities disclosure documentation and such other identifying
documentation as may be available for such party.
19
ARTICLE
IV
DISTRIBUTIONS
Section
4.01 Priorities
of Distribution.
d)
On each
Distribution Date, the Securities Administrator shall make the disbursements
and
transfers from amounts then on deposit in the Certificate Account in the
following order of priority and to the extent of the Available Funds
remaining:
(i) to
the
Holders of each Class of Offered Certificates (other than the Residual
Certificates) in the following order of priority:
(a) concurrently,
(x)
from the portion of Available Funds allocable to the Group 1 Mortgage Loans,
to
the Class 1-A-1 Certificates, (y) from the portion of Available Funds allocable
to the Group 2 Mortgage Loans, to the Class 2-A-1, Class 2-A-2 and Class 2-A-3
Certificates and (z) from the portion of Available Funds allocable to the Group
3 Mortgage Loans, to the Class 3-A-1 and Class 3-A-2 Certificates, their Accrued
Certificate Interest for the related Interest Accrual Period for such
Distribution Date and any Unpaid Interest Amounts from prior Distribution Dates,
allocated pro
rata
based on
their respective Accrued Certificate Interest and Unpaid Interest Amounts for
such Distribution Date (provided
that if
the Available Funds allocable to any Loan Group are insufficient to make the
related payments set forth above, any such Available Funds allocable to any
other Loan Group remaining after making the related payments set forth above
shall be available to cover such shortfall); and
(b) from
any
remaining Available Funds, to the Class M Certificates, sequentially,
in
ascending numerical order, their related Accrued Certificate Interest for such
Distribution Date;
(ii)
(A) on
each
Distribution Date (x) prior to the Stepdown Date or (y) with respect to which
a
Trigger Event is in effect, to the Holders of the Class or Classes of Offered
Certificates then entitled to distributions of principal as set forth below,
an
amount equal to the Principal Distribution Amount in the following order of
priority:
(a) concurrently,
to the
Class R, Class RC and Class RX Certificates, pro
rata,
from
principal payments related to the Group 2 Mortgage Loans, until their respective
Class Principal Balances have been reduced to zero;
(b) to
the
Class A Certificates, in the following order of priority:
concurrently,
(i) from
principal payments related to the Group 1 Mortgage Loans, to the Class 1-A-1
Certificates, until the Class Principal Balance thereof has been reduced to
zero;
(ii) from
principal payments related to the Group 2 Mortgage Loans, pro
rata,
based
on their respective Class Principal Balances, to the Class 2-A-1, Class 2-A-2
and Class 2-A-3 Certificates, until their respective Class Principal Balances
have been reduced to zero; provided
that
if a
Sequential Trigger Event is in effect, such distributions of the Principal
Distribution Amount shall be distributed, sequentially,
to the
Class 2-A-1, Class 2-A-2 and Class 2-A-3 Certificates, in that order, until
their respective Class Principal Balances have been reduced to
zero;
20
(iii) from
principal payments related to the Group 3 Mortgage Loans, pro
rata,
based
on their respective Class Principal Balances, to the Class 3-A-1 and Class
3-A-2
Certificates, until their respective Class Principal Balances have been reduced
to zero; provided
that
if a
Sequential Trigger Event is in effect, such distributions of the Principal
Distribution Amount shall be distributed, sequentially,
to the
Class 3-A-1 and Class 3-A-2 Certificates, in that order, until their respective
Class Principal Balances have been reduced to zero;
provided
that
if
after making the distributions above on any Distribution Date (without giving
effect to this proviso) the Class Principal Balance of any Class of Class A
Certificates is reduced to zero (considering the Class 2-A-1, Class 2-A-2 and
Class 2-A-3 Certificates as one Class and the Class 3-A-1 and Class 3-A-2
Certificates as one Class for purposes of this proviso only), then the remaining
amount of the Principal Distribution Amount distributable pursuant to this
clause (a)(ii)(A)(b) to the Class A Certificates on such Distribution Date
shall
be distributed to the other Class A Certificates remaining outstanding in
accordance with the applicable distribution priorities, until their respective
Class Principal Balances have been reduced to zero; and
(c) to
the
Class M Certificates, sequentially,
in
ascending numerical order, until their respective Class Principal Balances
have
been reduced to zero;
(B) on
each
Distribution Date (x) on or after the Stepdown Date and (y) as long as a Trigger
Event is not in effect, to the Holders of the Class or Classes of Offered
Certificates (other than the Residual Certificates) then entitled to
distributions of principal as set forth below, an amount equal to the Principal
Distribution Amount in the following order of priority:
(a) to
the
Class A Certificates, in the following order of priority:
concurrently,
(1) to
the
Class 1-A Certificates, the lesser of the portion of the Principal Distribution
Amount allocated to principal payments on the Group 1 Mortgage Loans and the
allocable portion for the Class 1-A Certificates of the Class A Principal
Distribution Amount, until the Class Principal Balance thereof has been reduced
to zero;
(2) to
the
Class 2-A Certificates, pro
rata,
based
on their respective Class Principal Balances, in each case, in an aggregate
amount equal to the lesser of the Principal Distribution Amount allocated to
principal payments on the Group 2 Mortgage Loans and the allocable portion
for
the Class 2-A Certificates of the Class A Principal Distribution Amount, until
their respective Class Principal Balances have been reduced to zero;
provided
that
if a
Sequential Trigger Event is in effect, such distributions shall be distributed
sequentially,
to the
Class 2-A-1, Class 2-A-2 and Class 2-A-3 Certificates, in that order, until
their respective Class Principal Balances have been reduced to zero;
and
21
(3) to
the
Class 3-A Certificates, pro
rata,
based
on their respective Class Principal Balances, in each case, in an aggregate
amount equal to the lesser of the Principal Distribution Amount allocated to
principal payments on the Group 3 Mortgage Loans and the allocable portion
for
the Class 3-A Certificates of the Class A Principal Distribution Amount, until
their respective Class Principal Balances have been reduced to zero;
provided
that
if a
Sequential Trigger Event is in effect, such distributions shall be distributed
sequentially,
to the
Class 3-A-1 and Class 3-A-2 Certificates, in that order, until their respective
Class Principal Balances have been reduced to zero;
provided
that
if
after making the distributions above on any Distribution Date (without giving
effect to this proviso) the Class Principal Balance of any Class of Class A
Certificates is reduced to zero (considering the Class 2-A-1, Class 2-A-2 and
Class 2-A-3 as one Class and the Class 3-A-1 and Class 3-A-2 Certificates as
one
Class for purposes of this proviso only), then the remaining amount of principal
distributable pursuant to this clause (a)(ii)(B)(a) to the Class A Certificates
on such Distribution Date shall be distributed to the other Class A Certificates
remaining outstanding in accordance with the applicable distribution priorities,
until their respective Class Principal Balances have been reduced to zero;
and
(b) to
the
Class M-1 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above and (y) the Class M-1 Principal
Distribution Amount, until their Class Principal Balance has been reduced to
zero;
(c) to
the
Class M-2 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above and to the Class M-1 Certificates
pursuant to clause (a)(ii)(B)(b) above and (y) the Class M-2 Principal
Distribution Amount, until their Class Principal Balance has been reduced to
zero;
(d) to
the
Class M-3 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above, to the Class M-1 Certificates pursuant
to clause (a)(ii)(B)(b) above and to the Class M-2 Certificates pursuant to
clause (a)(ii)(B)(c) above and (y) the Class M-3 Principal Distribution Amount,
until their Class Principal Balance has been reduced to zero;
(e) to
the
Class M-4 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above, to the Class M-1 Certificates pursuant
to clause (a)(ii)(B)(b) above, to the Class M-2 Certificates pursuant to clause
(a)(ii)(B)(c) above and to the Class M-3 Certificates pursuant to clause
(a)(ii)(B)(d) above and (y) the Class M-4 Principal Distribution Amount, until
their Class Principal Balance has been reduced to zero;
22
(f) to
the
Class M-5 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above, to the Class M-1 Certificates pursuant
to clause (a)(ii)(B)(b) above, to the Class M-2 Certificates pursuant to clause
(a)(ii)(B)(c) above, to the Class M-3 Certificates pursuant to clause
(a)(ii)(B)(d) above and to the Class M-4 Certificates pursuant to clause
(a)(ii)(B)(e) above and (y) the Class M-5 Principal Distribution Amount, until
their Class Principal Balance has been reduced to zero;
(g) to
the
Class M-6 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above, to the Class M-1 Certificates pursuant
to clause (a)(ii)(B)(b) above, to the Class M-2 Certificates pursuant to clause
(a)(ii)(B)(c) above, to the Class M-3 Certificates pursuant to clause
(a)(ii)(B)(d) above, to the Class M-4 Certificates pursuant to clause
(a)(ii)(B)(e) above and to the Class M-5 Certificates pursuant to clause
(a)(ii)(B)(f) above and (y) the Class M-6 Principal Distribution Amount, until
their Class Principal Balance has been reduced to zero;
(h) to
the
Class M-7 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above, to the Class M-1 Certificates pursuant
to clause (a)(ii)(B)(b) above, to the Class M-2 Certificates pursuant to clause
(a)(ii)(B)(c) above, to the Class M-3 Certificates pursuant to clause
(a)(ii)(B)(d) above, to the Class M-4 Certificates pursuant to clause
(a)(ii)(B)(e) above, to the Class M-5 Certificates pursuant to clause
(a)(ii)(B)(f) above and to the Class M-6 Certificates pursuant to clause
(a)(ii)(B)(g) above and (y) the Class M-7 Principal Distribution Amount, until
their Class Principal Balance has been reduced to zero;
(i) to
the
Class M-8 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above, to the Class M-1 Certificates pursuant
to clause (a)(ii)(B)(b) above, to the Class M-2 Certificates pursuant to clause
(a)(ii)(B)(c) above, to the Class M-3 Certificates pursuant to clause
(a)(ii)(B)(d) above, to the Class M-4 Certificates pursuant to clause
(a)(ii)(B)(e) above, to the Class M-5 Certificates pursuant to clause
(a)(ii)(B)(f) above and to the Class M-6 Certificates pursuant to clause
(a)(ii)(B)(g) above and to the Class M-7 Certificates pursuant to clause
(a)(ii)(B)(h) above and (y) the Class M-8 Principal Distribution Amount, until
their Class Principal Balance has been reduced to zero; and
(j) to
the
Class M-9 Certificates, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A Certificates
pursuant to clause (a)(ii)(B)(a) above, to the Class M-1 Certificates pursuant
to clause (a)(ii)(B)(b) above, to the Class M-2 Certificates pursuant to clause
(a)(ii)(B)(c) above, to the Class M-3 Certificates pursuant to clause
(a)(ii)(B)(d) above, to the Class M-4 Certificates pursuant to clause
(a)(ii)(B)(e) above, to the Class M-5 Certificates pursuant to clause
(a)(ii)(B)(f) above and to the Class M-6 Certificates pursuant to clause
(a)(ii)(B)(g) above and to the Class M-7 Certificates pursuant to clause
(a)(ii)(B)(h) above and to the Class M-8 Certificates pursuant to clause
(a)(ii)(B)(i) above and (y) the Class M-9 Principal Distribution Amount, until
their Class Principal Balance has been reduced to zero;
23
(iii)
any
Available Funds remaining after the distributions in clauses (a)(i) and (ii)
above is required to be distributed in the following order of priority with
respect to the Certificates:
(a) to
the
Holders of the Offered Certificates in respect of principal, the Extra Principal
Distribution Amount (in the order of priority for such Classes set forth in
clause (a)(i) above), until the targeted overcollateralization amount has been
achieved;
(b) if
and to
the extent that the Available Funds distributed pursuant to clause (a)(i) above
were insufficient to make the full distributions in respect of interest set
forth in such clause, (x) to the Holders of each Class of the Class A
Certificates, any unpaid Accrued Certificate Interest for that Distribution
Date
and any Unpaid Interest Amounts, pro
rata
among
such Classes in accordance with the allocations set forth in clause (a)(i),
and
then (y) to the Holders of each Class of the Class M Certificates, any unpaid
Accrued Certificate Interest for that Distribution Date, in the order of
priority for such Classes set forth in clause (a)(i) above;
(c) to
the
Class M Certificates, sequentially,
in
ascending numerical order, any Unpaid Interest Amount for such
Classes;
(d) to
the
Holders of the Offered Certificates (other than the Residual Certificates),
in
the same order and priority in which Accrued Certificate Interest is allocated
among such Classes of Certificates, with the allocation to the Class A
Certificates being allocated pro
rata
based on
their Class Principal Balances, any Prepayment Interest Shortfalls for such
Distribution Date and any such amounts remaining unpaid from prior Distribution
Dates, plus interest thereon calculated at the Pass-Through Rate;
(e) to
the
Holders of the Class A Certificates, pro
rata
among
such Classes in accordance with the allocations set forth in clause (a)(i)
above, and then to the Holders of the Class M Certificates, in the order of
priority for such Classes set forth in clause (a)(i) above, any Interest
Carryforward Amounts allocated thereto that remain unpaid as of the Distribution
Date;
(f)
to
the Excess Reserve Fund Account, the amount of any Basis Risk Payment for that
Distribution Date;
(g) from
funds on deposit in the Excess Reserve Fund Account with respect to that
Distribution Date, to the Holders of the Offered Certificates (other than the
Residual Certificates), an amount equal to any Basis Risk Carry Forward Amount
with respect to the Offered Certificates (other than the Residual Certificates)
for that Distribution Date in the same order and priority in which Accrued
Certificate Interest is allocated among those Classes of Certificates, with
the
allocation to the Class A Certificates being allocated pro
rata
based on
their Class Principal Balances; provided
that if
for any Distribution Date, after the allocation of the remaining unpaid Basis
Risk Carry Forward Amounts to the Class A Certificates, the remaining unpaid
Basis Risk Carry Forward Amount for any of the Class A Certificates is reduced
to zero, any amount of remaining unpaid Basis Risk Carry Forward Amount that
would have been allocated to that Class A Certificate for that Distribution
Date
will instead be allocated, pro
rata,
based
on their respective remaining unpaid Basis Risk Carry Forward Amounts, to the
other Class A Certificates to the extent the other Class A Certificates have
any
remaining unpaid Basis Risk Carry Forward Amounts;
24
(h) to
the
Class X Certificates, the Class X Distributable Amount, provided that, on the
Distribution Date in September 2011, $100 shall be allocated to the Class P
Interest and thus distributed to the Class P Certificates; and
(i) to
the
Holders of the Class R, Class RC and Class RX Certificates, any remaining amount
as set forth in this Trust Agreement.
Notwithstanding
the foregoing allocation of principal distributions to the Class A Certificates
from and after the Distribution Date on which the aggregate Class Principal
Balances of the Subordinate Certificates and the Overcollateralized Amount
have
been reduced to zero, any principal distributions to the Class A Certificates
shall be allocated among the Class 1-A Certificates, the Class 2-A Certificates
and the Class 3-A Certificates based on the Class A Principal Allocation
Percentage, and among such Classes, pro
rata,
based
on their respective Class Principal Balances, except that so long as a
Sequential Trigger Event is in effect principal allocated to (a) the Class
2-A-1, Class 2-A-2 and Class 2-A-3 Certificates will instead be allocated
sequentially
to such
Classes of Certificates, in that order, until their respective Class Principal
Balances have been reduced to zero and (b) the Class 3-A-1 and Class 3-A-2
Certificates will instead be allocated sequentially
to such
Classes of Certificates, in that order, until their Class Principal Balances
have been reduced to zero.
(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) On
any
Distribution Date, any Relief Act Interest Shortfalls and Net Prepayment
Interest Shortfalls for such Distribution Date shall be allocated pro
rata,
as a
reduction of the Accrued Certificate Interest for the Class A and Class M
Certificates, based on the Accrued Certificate Interest to which such Classes
would otherwise be entitled on such Distribution Date.
(d) Upon
any
exercise of the purchase option set forth in Section 11.01, the Securities
Administrator shall distribute to the Holders of the Class RC Certificates
any
amounts required to be distributed on the Class RC Certificates pursuant to
Section 11.02.
(e) With
respect to each Distribution Date and any First Payment Default Purchase Price
received by or on behalf of the Trustee in connection with the repurchase by
a
Seller of a First Payment Default Mortgage Loan that is in an amount greater
than the amount required to repurchase such First Payment Default Mortgage
Loan
from the Trustee pursuant to the provisions of this Trust Agreement, such excess
amount shall be distributed to the Class RC Certificates.
25
Section
4.02 Monthly
Statements to Certificateholders.
e)
Not
later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Depositor, the Trustee and each Rating
Agency a statement based, in part, upon the information provided by the
Servicers setting forth with respect to the related distribution:
(i) the
Class
factor for each Class of Certificates;
(ii) the
Available Funds for such Distribution Date;
(iii) the
amount thereof allocable to principal, separately identifying the aggregate
amount of any Principal Prepayments and Liquidation Proceeds included
therein;
(iv) the
amount thereof allocable to interest, any Unpaid Interest Amount included in
such distribution and any remaining Unpaid Interest Amount after giving effect
to such distribution, any Basis Risk Carry Forward Amount for such Distribution
Date and the amount of all Basis Risk Carry Forward Amount covered by
withdrawals from the Excess Reserve Fund Account on such Distribution
Date;
(v) if
the
distribution to the Holders of such Class of Certificates is less than the
full
amount that would be distributable to such Holders if there were sufficient
funds available therefor, the amount of the shortfall and the allocation thereof
as between principal and interest, including any Basis Risk Carry Forward Amount
not covered by amounts in the Excess Reserve Fund Account;
(vi) the
Class
Principal Balance of each Class of Certificates and the notional amount of
the
Class P Certificates after giving effect to the distribution of principal on
such Distribution Date;
(vii) the
aggregate Stated Principal Balance of the Mortgage Loans for the following
Distribution Date;
(viii) the
amount of the expenses and fees paid to or retained by the Servicer and paid
to
or retained by the Trustee with respect to such Distribution Date;
(ix) if
any,
the amount of any Administrative Fees paid to the Master Servicer or Securities
Administrator 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 Delinquency Advances included in the distribution on such Distribution
Date and the aggregate amount of Delinquency Advances reported by the Servicers
(and the Master Servicer, the Trustee as successor master servicer and any
other
successor master servicer, if applicable) as outstanding as of the close of
business on the Determination Date immediately preceding such Distribution
Date;
26
(xii) the
number and aggregate Stated Principal Balances of Mortgage Loans as reported
to
the Securities Administrator by the applicable Servicer, (i) that are current,
30 days contractually delinquent, 60 days contractually delinquent, 90 days
contractually delinquent or 120 days or more contractually delinquent (each
to
be calculated using the Mortgage Bankers Association (MBA) method), (ii) that
have become REO property, (iii) as to which foreclosure proceedings have been
commenced and (iv) as to which the related borrower is subject to a bankruptcy
proceeding;
(xiii) with
respect to any Mortgaged Property acquired on behalf of Certificateholders
through foreclosure or deed in lieu of foreclosure during the preceding calendar
month, the Stated Principal Balance of the related Mortgage Loan as of the
last
Business Day of the calendar month preceding the Distribution Date;
(xiv) the
total
number and principal balance of any REO Properties (and market value, if
available) as of the close of business on the Determination Date preceding
such
Distribution Date;
(xv) whether
a
Trigger Event has occurred and is continuing (including the calculation
demonstrating the existence of the Trigger Event and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(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 thereof to the Certificateholders with respect to Unpaid Interest
Amounts;
(xix) the
Overcollateralized Amount and Specified Overcollateralized Amount;
(xx) the
Prepayment Premiums collected by or paid by the Servicers;
(xxi) the
percentage equal to the aggregate realized losses divided by the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date;
(xxii) the
amount distributed on the Class X and Class P Certificates;
(xxiii) the
amount of any Subsequent Recoveries for such Distribution Date;
(xxiv) updated
Mortgage Loan information, such as weighted average interest rate, and weighted
average remaining term;
(xxv) the
aggregate amount of any Mortgage Loan that has been repurchased from the Trust
Fund;
27
(xxvi) the
aggregate shortfall, if any, allocated to each Class of Certificates at the
close of business on such Distribution Date; and
(xxvii) the
Certificate Rate for each Class of Certificates applicable to such Distribution
Date.
(b) The
Securities Administrator’s responsibility for providing the above statement to
the Certificateholders, each Rating Agency, the Trustee and the Depositor is
limited to the availability, timeliness and accuracy of the information derived
from the Master Servicer, the Servicers and the Sellers. The Securities
Administrator shall provide the above statement via the Securities
Administrator’s internet website. Assistance in using the website can be
obtained by calling the Securities Administrator’s investor relations desk at
(▇▇▇) ▇▇▇-▇▇▇▇. The Securities Administrator will also make a paper copy of
the
above statement available upon request.
(c) Upon
request, within a reasonable period of time after the end of each calendar
year,
the Securities Administrator shall cause to be furnished to each Person who
at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii), (a)(iii) and
(a)(vii) of this Section 4.02 aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Securities Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Securities Administrator pursuant to any requirements of the
Code as from time to time in effect.
The
Securities Administrator shall be entitled to rely on information provided
by
third parties for purposes of preparing the foregoing report, but shall not
be
responsible for the accuracy of such information.
Section
4.03 Allocation
of Applied Realized Loss Amounts.
Any
Applied Realized Loss Amounts shall be allocated to the most junior Class of
Subordinate Certificates then outstanding in reduction of the Class Principal
Balance thereof. In the event, Applied Realized Loss Amounts are allocated
to
any Class of Certificates, their Class Principal Balance shall be reduced by
the
amount so allocated and no funds shall be distributed with respect to the
written down amounts or with respect to interest or Basis Risk Carry Forward
Amounts on the written down amounts on that Distribution Date or any future
Distribution Dates, even if funds are otherwise available therefor.
Notwithstanding
the foregoing, the Class Principal Balance of each Class of Subordinate
Certificates that has been previously reduced by Applied Realized Loss Amounts
shall be increased, in the order of seniority, by the amount of the Subsequent
Recoveries (but not in excess of the Applied Realized Loss Amount allocated
to
the applicable Class of Subordinate Certificates).
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
will 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.
28
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 and the Trustee.
ARTICLE
V
THE
CERTIFICATES
Section
5.01 The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount) and aggregate denominations
per Class set forth in the Preliminary Statement.
The
Depositor hereby directs the Securities Administrator to register the Class
X
and Class P Certificates in the name of the Depositor or its designee. On a
date
as to which the Depositor notifies the Securities Administrator, the Depositor
hereby directs the Securities Administrator to transfer the Class X and Class
P
Certificates in the name of the NIM Trustee or such other name or names as
the
Depositor shall request, and to deliver the Class X and Class P Certificates
to
the NIM Trustee, or to such other person or persons as the Depositor shall
request.
Subject
to Section 11.02 respecting the final distribution on the Certificates, on
each
Distribution Date the Securities Administrator shall make distributions to
each
Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such Holder at a
bank
or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Securities
Administrator or (y), in the event that no wire instructions are provided to
the
Securities Administrator, by check mailed by first class mail to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
29
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Securities Administrator by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that
such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such office
at the date of such Certificate. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless authenticated by
the
Securities Administrator by manual signature, and such authentication upon
any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their authentication. On the Closing Date, the
Securities Administrator shall authenticate the Certificates to be issued at
the
direction of the Depositor, or any affiliate thereof.
Section
5.02 Certificate
Register; Registration of Transfer and Exchange of Certificates.
f)
The
Securities Administrator shall maintain, in accordance with the provisions
of
Section 5.06, a Certificate Register for the Trust Fund in which, subject to
the
provisions of subsections (b) and (c) below and to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates
as
herein provided. Upon surrender for registration of transfer of any Certificate,
the Securities Administrator shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever
any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by
a
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder thereof or his attorney duly
authorized in writing. In the event, the Depositor or an Affiliate transfers
the
Class X Certificates, or a portion thereof, to another Affiliate, it shall
notify the Securities Administrator in writing of the affiliated status of
the
transferee. The Securities Administrator shall have no liability regarding
the
lack of notice with respect thereto.
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.
30
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator’s customary
procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. Except with respect to (i) the
initial transfer of the Class X or Class P Certificates on the Closing Date,
(ii) the transfer of the Class X or Class P Certificates to the NIM Issuer
or
the NIM Trustee, or (iii) a transfer of the Class X or Class P Certificates
to
the Depositor or any Affiliate of the Depositor, in the event that a transfer
of
a Private Certificate which is a Physical Certificate is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such transfer shall certify to the Securities Administrator in writing
the facts surrounding the transfer in substantially the form set forth in
Exhibit
H
(the
“Transferor
Certificate”)
and
either (i) there shall be delivered to the Securities Administrator a letter
in
substantially the form of Exhibit
I
(the
“Rule
144A Letter”)
or
(ii) there shall be delivered to the Securities Administrator at the expense
of
the transferor an Opinion of Counsel that such transfer may be made without
registration under the Securities Act. In the event that a transfer of a Private
Certificate which is a Book-Entry Certificate is to be made in reliance upon
an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect
of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Securities Administrator
shall cooperate with the Depositor in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Depositor
such
information regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet
its
obligation under the preceding sentence. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor and each Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
31
Except
with respect to (i) the initial transfer of the Class X or Class P Certificates
on the Closing Date, (ii) the transfer of the Class X or Class P Certificates
to
the NIM Issuer or the NIM Trustee or (iii) a transfer of the Class X or Class
P
Certificates to the Depositor or any Affiliate of the Depositor, no transfer
of
an ERISA-Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator (in the event such Certificate
is a
Private Certificate or a Residual Certificate, such requirement is satisfied
only by the Securities Administrator’s receipt of a representation letter from
the transferee substantially in the form of Exhibit
G),
to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code
or a
plan subject to any Federal, state or local law (“Similar
Law”)
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets
of
any such plan or arrangement to effect such transfer (each such investor a
“Plan”),
(ii)
in the case of an ERISA-Restricted Certificate (other than a Residual
Certificate) that has been the subject of an ERISA-Qualifying Underwriting,
a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption (“PTCE”)
95-60)
and that the purchase and holding of such Certificates satisfy the requirements
for exemptive relief under Sections I and III of PTCE 95-60 or (iii) in the
case
of any ERISA-Restricted Certificate presented for registration in the name
of an
employee benefit plan subject to Title I of ERISA, a plan or arrangement subject
to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a plan subject to Similar Law, or a trustee of any such plan
or
any other person acting on behalf of any such plan or arrangement or using
such
plan’s or arrangement’s assets, an Opinion of Counsel satisfactory to the
Securities Administrator and the Depositor, which Opinion of Counsel shall
not
be an expense of the Trustee, the Depositor, the Securities Administrator or
the
Trust Fund, addressed to the Securities Administrator and the Depositor, to
the
effect that the purchase and holding of such ERISA-Restricted Certificate will
not constitute or result in a non-exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Trustee, the Depositor, the Master Servicer, any other servicer
or
the Securities Administrator to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Private
Certificate or a Residual Certificate, in the event the representation letter
referred to in the preceding sentence is not furnished, such representation
shall be deemed to have been made to the Securities Administrator by the
transferee’s (including an initial acquirer’s) acceptance of the
ERISA-Restricted Certificates. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject
to
Section 406 of ERISA, a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, without such
Opinion of Counsel, such attempted transfer or acquisition shall be void and
of
no effect.
The
Securities Administrator shall have no duty to monitor transfers of beneficial
interests in any Book-Entry Certificate and shall not be under liability to
any
Person for any registration of transfer of any ERISA Restricted Certificate
that
is in fact not permitted by this Section 5.02(b) or for making any payments
due
on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with
the
foregoing requirements.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
32
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee;
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of any Residual Certificate unless, in addition to the
Certificates required to be delivered to the Securities Administrator under
subparagraph (b) above, the Securities Administrator shall have been furnished
with an affidavit (a “Transfer
Affidavit”)
of the
initial owner or the proposed transferee in the form attached hereto as
Exhibit
I;
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in a
Residual Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee;
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. Neither the Securities Administrator nor the Trustee shall have
any
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this Section
5.02(c) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement. The Securities Administrator shall be entitled but not obligated
to recover from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such subsequent
time
as it became other than a Permitted Transferee, all payments made on such
Residual Certificate at and after either such time. Any such payments so
recovered by the Securities Administrator shall be paid and delivered by the
Securities Administrator to the last preceding Permitted Transferee of such
Certificate; and
(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.
33
The
restrictions on Transfers of a Residual Certificate set forth in this Section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Residual Certificate may be deleted) with respect to Transfers occurring after
delivery to the Securities Administrator of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, or the
Securities Administrator, to the effect that the elimination of such
restrictions will not cause any Trust REMIC to fail to qualify as a REMIC at
any
time that the Certificates are outstanding or result in the imposition of any
tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Securities Administrator, is reasonably necessary
(a)
to ensure that the record ownership of, or any beneficial interest in, a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of the
parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times: (i) registration
of the Certificates may not be transferred by the Securities Administrator
except to another Depository; (ii) the Depository shall maintain book entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Book-Entry Certificates; (iii) ownership and transfers of
registration of the Book-Entry Certificates on the books of the Depository
shall
be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee and the Securities Administrator
shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of Holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
may rely and shall be fully protected in relying upon information furnished
by
the Depository with respect to its Depository Participants and furnished by
the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
If
(x)
(i) the Depository or the Depositor advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Securities Administrator or
the
Depositor is unable to locate a qualified successor, or (y) the Depositor
notifies the Depository of its intent to terminate the book entry system through
the Depository, the Depository Participants holding beneficial interests in
the
Book-Entry Certificates agree to initiate such termination, the Securities
Administrator shall notify all Certificate Owners, through the Depository,
of
the occurrence of any such event and of the availability of definitive, fully
registered Certificates (the “Definitive
Certificates”)
to
Certificate Owners requesting the same. Upon surrender to the Securities
Administrator of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. Neither the
Depositor nor the Securities Administrator shall be liable for any delay in
delivery of such instruction and each may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide the
Securities Administrator with an adequate inventory of Certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon
and
performed by the Securities Administrator, to the extent applicable with respect
to such Definitive Certificates and the Securities Administrator shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder;
provided
that the
Securities Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
34
(f) Each
Private Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Securities Administrator, duly executed
by
the Certificateholder or his attorney duly authorized in writing. Each
Certificate presented or surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Securities Administrator
in accordance with its customary practice. No service charge shall be made
for
any registration of transfer or exchange of Private Certificates, but the
Securities Administrator may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Private Certificates.
Section
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate is surrendered to the Securities Administrator, or
the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the
Depositor, the Trustee and the Securities Administrator such security or
indemnity as may be required by them to hold each of them harmless, then, in
the
absence of notice to the Securities Administrator that such Certificate has
been
acquired by a protected purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator may require the payment
of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete
and
indefeasible evidence of ownership, as if originally issued, whether or not
the
lost, stolen or destroyed Certificate shall be found at any time.
35
Section
5.04 Persons
Deemed Owners.
The
Trustee, the Depositor, the Securities Administrator and any agent of the
Depositor, the Securities Administrator or the Trustee may treat the Person
in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for
all
other purposes whatsoever, and none of the Trustee, the Securities
Administrator, the Depositor or any agent of the Depositor, the Securities
Administrator or the Trustee shall be affected by any notice to the
contrary.
Section
5.05 Access
to List of Certificateholders’ Names and Addresses.
If
three or more Certificateholders (a) request such information in writing from
the Securities Administrator, (b) state that such Certificateholders desire
to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or a Servicer shall request such information in writing from the
Securities Administrator, then the Securities Administrator shall, within ten
(10) Business Days after the receipt of such request, provide the Depositor,
such Servicer or such Certificateholders at such recipients’ expense the most
recent list of the Certificateholders of such Trust Fund held by the Securities
Administrator, if any. The Depositor and every Certificateholder, by receiving
and holding a Certificate, agree that the Securities Administrator shall not
be
held accountable by reason of the disclosure of any such information as to
the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
Section
5.06 Maintenance
of Office or Agency.
The
Securities Administrator will maintain or cause to be maintained at its expense
an office or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange. The Securities Administrator initially
designates its Corporate Trust Office for such purposes. The Securities
Administrator will give prompt written notice to the Certificateholders of
any
change in such location of any such office or agency.
ARTICLE
VI
THE
DEPOSITOR
Section
6.01 Liabilities
of the Depositor.
The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by it
herein.
Section
6.02 Merger
or Consolidation of the Depositor.
The
Depositor will keep in full effect its existence, rights and franchises as
a
corporation or federally chartered savings bank, as the case may be, under
the
laws of the United States or under the laws of one of the states thereof and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or
any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any
Person into which the Depositor may be merged or consolidated, or any Person
resulting from any merger or consolidation to which the Depositor shall be
a
party, or any person succeeding to the business of the Depositor, shall be
the
successor of the Depositor, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
36
Section
6.03 Limitation
on Liability of the Depositor and Others.
Neither
the Depositor nor any of its directors, officers, employees or agents shall
be
under any liability to the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Depositor or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor or any such Person from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor and any director, officer, employee or agent
of
the Depositor may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor and any director, officer, employee or agent of the
Depositor shall be indemnified by the Trust Fund and held harmless against
any
loss, liability or expense incurred in connection with any audit, controversy
or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Depositor shall not be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided,
however,
that
the Depositor may in its discretion undertake any such action (or direct the
Trustee to undertake such actions for the benefit of the Certificateholders)
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund, the Depositor shall be entitled to be reimbursed
therefor out of the Certificate Account.
Section
6.04 Servicing
Compliance Review.
Promptly upon receipt from each Servicer of its annual statement of compliance
and accountant’s report described in the applicable Step 2 Assignment Agreement
the Master Servicer shall furnish a copy thereof to the Depositor. Promptly
after the Depositor’s receipt thereof, the Depositor shall review the same and,
if applicable, consult with such Servicer as to the nature of any defaults
by
such Servicer in the fulfillment of any of its Servicer’s obligations under the
applicable Servicing Agreement.
ARTICLE
VII
SERVICER
DEFAULT
Section
7.01 Events
of Default.
If an
Event of Default described in any Servicing Agreement shall occur with respect
to the related Servicer then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Master Servicer may, or
at
the direction of Certificateholders entitled to a majority of the Voting Rights
the Master Servicer shall, by notice in writing to the applicable Servicer
(with
a copy to each Rating Agency), terminate all of the rights and obligations
of
such Servicer under the applicable Servicing Agreement and in and to the
Mortgage Loans and the proceeds thereof. The Holders of Certificates evidencing
at least 66% of the Voting Rights of Certificates affected by a Event of Default
may waive such Event of Default; provided,
however,
that
(a) an Event of Default with respect to any Servicer’s obligation to make
Advances may be waived only by all of the Holders of the Certificates affected
by such Event of Default and (b) no such waiver is permitted that would
materially adversely affect any non consenting Certificateholder. On and after
the receipt by such Servicer of such written notice of termination, all
authority and power of such Servicer hereunder or under the applicable Servicing
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer. The Master Servicer is hereby
authorized and empowered to execute and deliver, on behalf of such Servicer,
as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise.
37
Section
7.02 Master
Servicer to Act; Appointment of Successor.
Within
120 days after the Master Servicer gives, and the applicable Servicer receives
a
notice of termination pursuant to Section 7.01, the Master Servicer shall,
subject to and to the extent provided in Section 7.03, and subject to the rights
of the Master Servicer to appoint a successor Servicer pursuant to this Section
7.02, be the successor to the Servicer in its capacity as servicer under the
applicable Servicing Agreement and the transactions set forth or provided for
herein and in such Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions of such Servicing Agreement and applicable law
including the obligation to make Advances pursuant to such Servicing Agreement
(it being understood and agreed that if any Servicer fails to make an Advance,
the Master Servicer shall do so unless a determination has been made that such
Advance would constitute a Nonrecoverable Delinquency Advance or a
Nonrecoverable Servicing Advance). As compensation therefor, the Master Servicer
shall be entitled to all funds relating to the Mortgage Loans that the Servicer
would have been entitled to charge to the Collection Account if the Servicer
had
continued to act under the Servicing Agreement including, if the Servicer was
receiving the Servicing Fee at the Servicing Fee Rate set forth in the Servicing
Agreement (as set forth in the Mortgage Loan Schedule with respect to the
related Group 1 Mortgage Loans, Group 2 Mortgage Loans and Group 3 Mortgage
Loans, respectively) such Servicing Fee and the income on investments or gain
related to the Collection Account.
Notwithstanding
the foregoing, the Master Servicer may, if it shall be unwilling to so act,
or
shall, if it is prohibited by applicable law from making Advances pursuant
to
the applicable Servicing Agreement, or if it is otherwise unable to so act,
or,
at the written request of Certificateholders entitled to a majority of the
Voting Rights, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment
of
which does not adversely affect the then current rating of the Certificates
by
each Rating Agency, as the successor to such Servicer under the applicable
Servicing Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of such Servicer. No such appointment
of
a successor to a Servicer hereunder shall be effective until the Depositor
shall
have consented thereto. Any successor to such Servicer shall be an institution
which is a ▇▇▇▇▇▇ ▇▇▇ and Freddie Mac approved seller/servicer in good standing,
which has a net worth of at least $25,000,000, which is willing to service
the
Mortgage Loans and which executes and delivers to the Depositor and the Master
Servicer an agreement accepting such delegation and assignment, containing
an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of such terminated Servicer, (other than liabilities
of such terminated Servicer incurred prior to termination of such Servicer
under
Section 7.01), with like effect as if originally named as a party to this
Agreement; provided
that
each Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced, as a result of such assignment and delegation. Pending appointment
of a
successor to a Servicer hereunder, the Master Servicer, unless the Master
Servicer is prohibited by law from so acting, shall, subject to this Section
7.02, act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Master Servicer may make such arrangements
for
the compensation of such successor out of payments on Mortgage Loans as it,
the
Depositor and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of the Servicing Fee Rate and amounts
paid
to the Servicer from investments. The Master Servicer and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Master Servicer nor any other
successor to a Servicer shall be deemed to be in default hereunder by reason
of
any failure to make, or any delay in making, any distribution hereunder or
any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure
of
the predecessor Servicer to deliver or provide, or any delay in delivering
or
providing, any cash, information, documents or records to it.
38
Any
successor Servicer shall give notice to the Mortgagors of such change of
Servicer, in accordance with applicable federal and state law, and shall, during
the term of its service as servicer, maintain in force the policy or policies
that each Servicer is required to maintain pursuant to the applicable Servicing
Agreement.
Notwithstanding
the foregoing, the Master Servicer may not terminate a Servicer without
cause.
Section
7.03 Master
Servicer to Act as Servicer.
In the
event that a Servicer shall for any other reason no longer be the Servicer,
the
Master Servicer or another successor Servicer, shall thereupon assume all of
the
rights and obligations of the predecessor Servicer hereunder arising thereafter
pursuant to Section 7.02.
Section
7.04 Notification
to Certificateholders.
g)
Upon any
termination of or appointment of a successor to a Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders
and
to each Rating Agency.
(b) Promptly
after the occurrence of any Event of Default, the Securities Administrator
shall
transmit by mail to all Certificateholders and each Rating Agency notice of
each
such Event of Default hereunder known to the Securities Administrator, unless
such Event of Default shall have been cured or waived.
39
ARTICLE
VIII
CONCERNING
THE TRUSTEE AND THE CUSTODIAN
Section
8.01 Duties
of the Trustee and the Custodian.
The
Trustee, before the occurrence of a Master Servicer Event of Default and after
the curing of all Master Servicer Events of Default that may have occurred,
shall undertake to perform such duties and only such duties as are specifically
set forth in this Agreement. In case a Master Servicer Event of Default has
occurred and remains uncured, the Trustee shall exercise such of the rights
and
powers vested in it by this Agreement, and use the same degree of care and
skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
The
Trustee and the Custodian, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee or the Custodian, as applicable, that are specifically required
to be furnished pursuant to any provision of this Agreement shall examine them
to determine whether on their face they are in the form required by this
Agreement, or with respect to the documents in the respective Custodial Files
whether they satisfy the review criteria set forth in Section 2.02. Neither
the
Trustee nor the Custodian shall be responsible for the accuracy or content
of
any resolution, certificate, statement, opinion, report, document, order or
other instrument.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Custodian from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance; provided,
however,
that:
(a) unless
a
Master Servicer Event of Default of which a Responsible Officer of the Trustee
obtains actual knowledge has occurred and is continuing, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance
of
the duties and obligations specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee,
and the Trustee may conclusively rely, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Agreement
which it believed in good faith to be genuine and to have been duly executed
by
the proper authorities respecting any matters arising hereunder;
(b) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the
Trustee shall not be liable with respect to any action taken, suffered, or
omitted to be taken by it in good faith in accordance with the direction of
the
Holders of Certificates evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or
power conferred upon the Trustee under this Agreement.
40
Section
8.02 [Reserved]
Section
8.03 Certain
Matters Affecting the Trustee and the Custodian.
Except
as otherwise provided in Section 8.01:
(a) the
Trustee and the Custodian may request and rely upon and shall be protected
in
acting or refraining from acting upon any resolution, Officer’s Certificate,
Opinion of Counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties and the Trustee and the Custodian
shall
have no responsibility to ascertain or confirm the genuineness of any signature
of any such party or parties;
(b) before
taking any action under this Agreement, the Trustee and the Custodian may
consult with counsel, financial advisers or accountants and the advice of any
such counsel, financial advisers or accountants and any Opinion of Counsel
shall
be full and complete authorization and protection in respect of any action
taken
or suffered or omitted by it hereunder in good faith and in accordance with
such
advice or Opinion of Counsel;
(c) the
Trustee and the Custodian shall not be liable for any action taken, suffered
or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates evidencing
not
less than 25% of the Voting Rights allocated to each Class of Certificates;
provided,
however,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require indemnity
satisfactory to the Trustee against such cost, expense or liability as a
condition to taking any such action. The reasonable expense of every such
examination shall be paid by the applicable Servicer or, if paid by the Trustee,
shall be repaid by the Servicer upon demand from the applicable Servicer’s own
funds;
(e) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or attorneys
and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agents, accountants or attorneys appointed with due care by it
hereunder;
(f) neither
the Trustee nor the Custodian shall be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not assured to
it;
41
(g) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement (other than as issuer of the investment security);
(h) unless
a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
a
Master Servicer Event of Default or an Event of Default, the Trustee shall
not
be deemed to have knowledge of a Master Servicer Event of Default or an Event
of
Default, until a Responsible Officer of the Trustee shall have received written
notice thereof;
(i) the
Trustee shall be under no obligation to exercise any of the trusts, rights
or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Certificateholders, pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby;
(j) the
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act;
(k) the
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder;
(l) notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to a Servicer’s request of assigning the Servicing Agreement or the
servicing rights thereunder to any other party;
(m) the
Trustee and the Custodian shall not be accountable and shall have no liability
for any acts or omissions by the Securities Administrator, the Master Servicer
or other party hereto; and
(n) in
no
event shall Deutsche Bank, in its capacity as Trustee and Custodian hereunder,
be liable for special, indirect or consequential damages.
Section
8.04 Trustee
and Custodian Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and neither the Trustee nor the Custodian assumes
any responsibility for their correctness. The Trustee and the Custodian make
no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document. Neither the Trustee
nor the Custodian shall be accountable for the use or application by the
Depositor, the Master Servicer, any Servicer or the Securities Administrator
of
any funds paid to the Depositor, the Master Servicer, any Servicer or the
Securities Administrator in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account or the Certificate Account by the
Depositor, the Master Servicer, any Servicer, or the Securities
Administrator.
The
Trustee shall have no responsibility (i) for filing or recording any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted
to
it hereunder (unless the Trustee shall have become and remains the successor
Master Servicer) (ii) to see to any insurance (unless the Trustee shall have
become the successor Master Servicer), or (iii) to confirm or verify the
contents of any reports or certificates of the Servicers, Securities
Administrator or Master Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
42
The
Securities Administrator executes the Certificates not in its individual
capacity but solely as Securities Administrator of the Trust Fund created by
this Agreement, in the exercise of the powers and authority conferred and vested
in it by this Agreement. Each of the undertakings and agreements made on the
part of the Securities Administrator on behalf of the Trust Fund in the
Certificates is made and intended not as a personal undertaking or agreement
by
the Securities Administrator but is made and intended for the purpose of binding
only the Trust Fund.
Section
8.05 Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
Section
8.06 Trustee’s
Fees and Expenses.
As
compensation for its activities under this Agreement, the Trustee shall be
paid
an on-going monthly or annual fee, as applicable, by the Securities
Administrator pursuant to a separate agreement. The Trustee shall have no lien
on the Trust Fund for the payment of such fees. The Trustee shall be entitled
to
be reimbursed, from funds on deposit in the Certificate Account, amounts
sufficient to indemnify and hold harmless the Trustee and any director, officer,
employee, or agent of the Trustee against any loss, liability, or expense
(including reasonable attorneys’ fees) incurred in connection with any claim or
legal action relating to
(a) this
Agreement,
(b) the
Certificates, or
(c) the
performance of any of the Trustee’s duties under this Agreement,
other
than any loss, liability, or expense (i) resulting from any breach of any
Servicer’s obligations in connection with its Servicing Agreement for which that
Servicer has performed its obligation to indemnify the Trustee pursuant to
Servicing Agreement, (ii) resulting from any breach of the Seller’s obligations
in connection with any Sale Agreement for which it has performed its obligation
to indemnify the Trustee pursuant to the Sale Agreement, (iii) resulting from
any breach of the Master Servicer’s obligations hereunder for which the Master
Servicer has performed its obligation to indemnify the Trustee pursuant to
this
Agreement, or (iv) incurred because of willful misfeasance, bad faith, or
negligence in the performance of any of the Trustee’s duties under this
Agreement. This indemnity shall survive the termination of this Agreement or
the
resignation or removal of the Trustee under this Agreement. Without limiting
the
foregoing, except for any expense, disbursement or advance arising from the
Trustee’s negligence, bad faith or willful misfeasance, the Trust Fund shall pay
or reimburse the Trustee, for all reasonable expenses, disbursements, and
advances incurred or made by the Trustee in accordance with this Agreement
with
respect to:
43
(A) the
reasonable compensation, expenses, and disbursements of its counsel not
associated with the closing of the issuance of the Certificates,
and
(B) the
reasonable compensation, expenses and disbursements of any accountant, engineer
or appraiser that is not regularly employed by the Trustee, to the extent that
the Trustee must engage them to perform services under this
Agreement.
Except
as
otherwise provided in this Agreement, the Trustee shall not be entitled to
payment or reimbursement for any routine ongoing expenses incurred by the
Trustee in the ordinary course of its duties as Trustee under this Agreement
or
for any other expenses.
Section
8.07 Eligibility
Requirements for the Trustee.
The
Trustee hereunder shall at all times be a corporation, banking association
or
other association organized and doing business under the laws of a state or
the
United States of America, authorized under such laws to exercise corporate
trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and the appointment
of which would not cause any of the Rating Agencies to reduce or withdraw their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section 8.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
this
Section 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or with
the Servicer and its affiliates; provided,
however,
that
such entity cannot be an affiliate of the Depositor or of any Servicer other
than the Trustee in its role as successor to the Master Servicer.
Section
8.08 Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer,
the Securities Administrator and each Rating Agency not less than sixty (60)
days before the date specified in such notice, when, subject to Section 8.09,
such resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.09 meeting the qualifications set forth in Section
8.07. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within thirty (30) days after the giving
of such notice or resignation, the resigning Trustee may petition any court
of
competent jurisdiction for the appointment of a successor trustee.
If
at any
time (i) the Trustee shall cease to be eligible in accordance with Section
8.07
and shall fail to resign after written request thereto by the Depositor, (ii)
the Trustee shall become incapable of acting, or shall be adjudged as bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee
or
of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, (iii)(A) a tax is imposed with respect to the Trust Fund by any
state in which the Trustee or the Trust Fund is located and (B) the imposition
of such tax would be avoided by the appointment of a different trustee, or
(iv)
the Trustee fails to comply with its obligations under the last sentence of
Section 9.04 in the preceding paragraph, Section 8.10 or Article XIII and such
failure is not remedied within the lesser of ten (10) calendar days or such
period in which the applicable Exchange Act Report can be timely filed (without
taking into account any extensions), then, in the case of clauses (i) through
(iv), the Depositor may remove the Trustee and appoint a successor trustee
by
written instrument, in duplicate, one copy of which shall be delivered to the
Trustee and one copy to the successor trustee.
44
The
Holders of Certificates entitled to a majority of the Voting Rights may at
any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, in duplicate, signed by such Holders or their attorneys in fact
duly authorized, one complete set of which shall be delivered to the Trustee
so
removed and one complete set to the successor so appointed. The successor
trustee shall notify each Rating Agency of any removal of the
Trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to this Section 8.08 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.09.
Section
8.09 Successor
Trustee.
Any
successor trustee appointed as provided in Section 8.08 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee an
instrument accepting such appointment hereunder and thereupon the resignation
or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
Depositor and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No
successor trustee shall accept appointment as provided in this Section 8.09
unless at the time of its acceptance, the successor trustee is eligible under
Section 8.07 and its appointment does not adversely affect the then current
rating of the Certificates and has provided to the Depositor in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
Upon
acceptance of appointment by a successor trustee as provided in this Section
8.09, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates and the Custodian. If the Depositor
fails to mail such notice within ten (10) days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to
be
mailed at the expense of the Depositor.
Section
8.10 Merger
or Consolidation of the Trustee or the Custodian.
Any
corporation into which the Trustee or the Custodian, as applicable, 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
or
the Custodian, as applicable, shall be a party, or any corporation succeeding
to
the business of the Trustee or the Custodian, as applicable, shall be the
successor of the Trustee or the Custodian, as applicable, hereunder;
provided
that
such corporation shall be eligible under Section 8.07 without the execution
or
filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
45
Section
8.11 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all
or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the Trust
Fund or any part thereof, whichever is applicable, and, subject to the other
provisions of this Section 8.11, such powers, duties, obligations, rights and
trusts as the Trustee may consider appropriate. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.09 and no notice to Certificateholders of
the
appointment of any co-trustee or separate trustee shall be required under
Section 8.09.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) To
the
extent necessary to effectuate the purposes of this Section 8.11, all rights,
powers, duties and obligations conferred or imposed upon the Trustee, except
for
the obligation of the Trustee (as successor Master Servicer) under this
Agreement to advance funds on behalf of the Master Servicer, shall be conferred
or imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or
co-trustee is not authorized to act separately without the Trustee joining
in
such act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder
or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No
trustee hereunder shall be held personally liable because of any act or omission
of any other trustee hereunder and such appointment shall not, and shall not
be
deemed to, constitute any such separate trustee or co-trustee as agent of the
Trustee;
(c) The
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee; and
(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.
46
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Master Servicer and the Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section
8.12 Tax
Matters.
It is
intended that the assets with respect to which any REMIC election pertaining
to
the Trust Fund is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a “real estate mortgage investment conduit”
as defined in, and in accordance with, the REMIC Provisions. In furtherance
of
such intention, the Securities Administrator covenants and agrees that it shall
act as agent (and the Securities Administrator is hereby appointed to act as
agent) on behalf of each REMIC described in the Preliminary Statement and that
in such capacity it shall:
(a) prepare
and file, in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
(REMIC) Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file with the Internal Revenue Service
and applicable state or local tax authorities income tax or information returns
for each taxable year with respect to each Trust REMIC containing such
information and at the times and in the manner as may be required by the Code
or
state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and
in
such manner as may be required thereby;
(b) within
thirty (30) days of the Closing Date, apply for an employer identification
number from the Internal Revenue Service via Form SS-4 or any other acceptable
method for all tax entities and shall also furnish to the Internal Revenue
Service, on Form 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the Holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the
Code;
(c) make
an
election that each Trust REMIC be treated as a REMIC on the federal tax return
for its first taxable year (and, if necessary, under applicable state
law);
47
(d) prepare
and forward to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and
when required to be provided to them in accordance with the REMIC Provisions,
including the calculation of any original issue discount using the prepayment
assumption (as described in the Prospectus Supplement);
(e) provide
information necessary for the computation of tax imposed on the transfer of
a
Residual Certificate to a Person that is not a Permitted Transferee (a
“Non
Permitted Transferee”),
or an
agent (including a broker, nominee or other middleman) of a Non Permitted
Transferee, or a pass through entity in which a Non Permitted Transferee is
the
record holder of an interest (the reasonable cost of computing and furnishing
such information may be charged to the Person liable for such tax);
(f) to
the
extent that they are under its control, conduct matters relating to such assets
at all times that any Certificates are outstanding so as to maintain the status
of each Trust REMIC as a REMIC under the REMIC Provisions;
(g) not
knowingly or intentionally take any action or omit to take any action that
would
cause the termination of the REMIC status of any Trust REMIC created
hereunder;
(h) pay,
from
the sources specified in the last paragraph of this Section 8.12, the amount
of
any federal or state tax, including prohibited transaction taxes as described
below, imposed on any Trust REMIC before its termination when and as the same
shall be due and payable (but such obligation shall not prevent the Securities
Administrator or any other appropriate Person from contesting any such tax
in
appropriate proceedings and shall not prevent the Securities Administrator
from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) cause
federal, state or local income tax or information returns to be signed by the
Trustee or such other person as may be required to sign such returns by the
Code
or state or local laws, regulations or rules;
(j) maintain
records relating to each of the Trust REMICs, including the income, expenses,
assets, and liabilities thereof on a calendar year basis and on the accrual
method of accounting and the fair market value and adjusted basis of the assets
determined at such intervals as may be required by the Code, as may be necessary
to prepare the foregoing returns, schedules, statements or information;
and
(k) as
and
when necessary and appropriate, represent each Trust REMIC in any administrative
or judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of
each Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any Trust
REMIC, and otherwise act on behalf of each Trust REMIC in relation to any tax
matter or controversy involving it.
The
Holder of the largest Percentage Interest of the Class RC, Class R and Class
RX
Certificates shall act as Tax Matters Person for the Lower-Tier REMIC, the
Upper-Tier REMIC and the Class RX REMICs, respectively, within the meaning
of
Treasury Regulations Section 1.860F-4(d), and the Securities Administrator
is
hereby designated as agent of such Certificateholder for such purpose (or if
the
Securities Administrator is not so permitted, such Holder shall be the Tax
Matters Person in accordance with the REMIC Provisions). In such capacity,
the
Securities Administrator shall, as and when necessary and appropriate, represent
each Trust REMIC in any administrative or judicial proceedings relating to
an
examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of each Trust REMIC, enter
into
settlement agreements with any governmental taxing agency, extend any statute
of
limitations relating to any tax item of any Trust REMIC, and otherwise act
on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
48
The
Securities Administrator shall treat the rights of the Class X
Certificateholders to receive amounts in the Excess Reserve Fund Account
(subject to the obligation to pay Basis Risk Carry Forward Amounts) and the
rights of the Holders of the Offered Certificates (other than the Residual
Certificates) to receive Basis Risk Carry Forward Amounts (as calculated in
the
Preliminary Statement) as the beneficial ownership interests in a grantor trust
and not as an obligations of any REMIC created hereunder, for federal income
tax
purposes. The Securities Administrator shall file or cause to be filed with
the
Internal Revenue Service Form 1041 or such other form as may be applicable
and
shall furnish or cause to be furnished, to the Class X Certificateholders and
the Holders of the Offered Certificates (other than the Residual Certificates),
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 (10) days
after the Closing Date all information or data that the Securities Administrator
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including the price, yield,
prepayment assumption, and projected cash flows of the Certificates and the
Mortgage Loans. Moreover, the Depositor shall provide information to the
Securities Administrator concerning the value, if any, to each Class of
Certificates of the right to receive Basis Risk Carry Forward Amounts from
the
Excess Reserve Fund Account. Thereafter, the Depositor shall provide to the
Securities Administrator promptly upon written request therefor any additional
information or data that the Securities Administrator may, from time to time,
reasonably request to enable the Securities Administrator to perform its duties
under this Agreement. The Depositor hereby indemnifies the Securities
Administrator for any losses, liabilities, damages, claims, or expenses of
the
Securities Administrator arising from any errors or miscalculations of the
Securities Administrator that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the
Securities Administrator on a timely basis.
If
any
tax is imposed on “prohibited transactions” of any Trust REMIC as defined in
Section 860F(a)(2) of the Code, on the “net income from foreclosure property” of
the Lower-Tier REMIC as defined in Section 860G(c) of the Code, on any
contribution to any Trust REMIC after the Startup Day pursuant to Section
860G(d) of the Code, or any other tax is imposed, including any minimum tax
imposed on any Trust REMIC pursuant to Sections 23153 and 24874 of the
California Revenue and Taxation Code, if not paid as otherwise provided for
herein, the tax shall be paid by (i) the Master Servicer, the Trustee or the
Securities Administrator, as applicable if such tax arises out of or results
from negligence of the Master Servicer, the Trustee or the Securities
Administrator, as applicable in the performance of any of its obligations under
this Agreement, (ii) a Servicer, in the case of any such minimum tax, and
otherwise if such tax arises out of or results from a breach by the Servicer
of
any of its obligations under the applicable Servicing Agreement, (iii) a Seller
if such tax arises out of or results from the Seller’s obligation to repurchase
a Mortgage Loan pursuant to the applicable Sale Agreement or (iv) in all other
cases, or if the Trustee, the Master Servicer, the Securities Administrator,
the
Servicer or the Seller fails to honor its obligations under the preceding clause
(i), (ii), or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section
4.01(a).
49
For
as
long as each Trust REMIC shall exist, the Securities Administrator shall act
as
specifically required herein, and the Securities Administrator shall comply
with
any directions of the Depositor or a Servicer stating that such directions
are
being given to assure such continuing treatment. In particular, the Securities
Administrator shall not (a) sell or authorize the sale of all or any portion
of
the Mortgage Loans or of any investment of deposits in an Account unless such
sale is as a result of a purchase or repurchase of the Mortgage Loans pursuant
to this Agreement or (b) accept any contribution to any Trust REMIC after the
Startup Day without receipt of an Opinion of Counsel that such action described
in clause (a) or (b) will not result in the imposition of a tax on any Trust
REMIC or cause any Trust REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding.
Section
8.13 [Reserved]
Section
8.14 Tax
Classification of the Excess Reserve Fund Account.
For
federal income tax purposes, the Securities Administrator shall treat the Excess
Reserve Fund Account as beneficially owned by the Holder of the Class X
Certificates and shall treat such portion of the Trust Fund as a grantor trust
under subpart E, Part I of subchapter J of the Code. The Securities
Administrator shall treat the rights that each Class of Offered Certificates
(other than the Residual Certificates) has to receive payments of Basis Risk
Carry Forward Amounts from the Excess Reserve Fund Account as rights to receive
payments under an interest rate cap contract written by the Class X
Certificateholders in favor of each Class. Accordingly, each Class of Offered
Certificates (other than the Residual Certificates) will comprise two
components—a regular interest in the Upper-Tier REMIC and an interest in an
interest rate cap contract, and the Class X Certificates will be comprised
of
two components—a regular interest in the Class X REMIC and an interest in the
Excess Reserve Fund Account subject to the obligation to pay Basis Risk ▇▇▇▇
Forward Amounts. The Securities Administrator shall allocate the issue price
for
a Class of Certificates among these components for purposes of determining
the
issue price of the Upper-Tier Regular Interest component based on information
received from the Depositor. Unless otherwise advised by the Depositor in
writing, for federal income tax purposes, the Securities Administrator is hereby
directed to assign a value of $10,000
to the
right of each Holder of an Offered Certificate (other than a Residual
Certificate) to receive the related Basis Risk Carry Forward Amount for purposes
of allocating the purchase price of an initial Offered Certificateholder (other
than the Holder of a Residual Certificate) between such right and the related
Upper-Tier Regular Interest.
50
Section
8.15 [Reserved]
Section
8.16 Custodial
Responsibilities.
The
Custodian shall provide access to the Mortgage Loan documents in possession
of
the Custodian regarding the related Mortgage Loans and REO Property and the
servicing thereof to the Trustee, the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon two (2) Business Days prior written request and during normal business
hours at the office of the Custodian; provided,
however,
that
unless otherwise required by law or any regulatory or administrative agency
(including the FDIC), the Custodian shall not be required to provide access
to
such records and documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. The Custodian shall allow representatives
of
the above entities to photocopy any of the records and documentation and shall
provide equipment for that purpose at the expense of the Trust that covers
the
Custodian’s actual costs.
Upon
receipt of a request for release by a Servicer substantially in the form of
Exhibit
L
hereto,
the Custodian shall release within five (5) Business Days the related Mortgage
File to such Servicer and the Trustee shall execute and deliver to such
Servicer, without recourse, a request for reconveyance, deed of reconveyance
or
release or satisfaction of mortgage or such instrument releasing the lien of
the
Mortgage (furnished by such Servicer), together with the Mortgage
Note.
The
Custodian may resign at any time or may be terminated by the Trustee with cause,
in each case, upon sixty (60) days written notice to the applicable Servicer,
the Depositor and the Securities Administrator, in which event the Depositor
will be obligated to appoint a successor. If no successor has been appointed
and
has accepted appointment within sixty (60) days after the resignation or
termination of the Custodian, the Custodian may petition any court of competent
jurisdiction for appointment of a successor.
The
Securities Administrator, pursuant to a separate agreement, shall compensate
from its own funds the Custodian for its activities under this Agreement. The
Custodian shall have no lien on the Trust Fund for the payment of such fees.
The
Custodian shall be entitled to be reimbursed, from funds on deposit in the
Certificate Account, amounts sufficient to indemnify and hold harmless the
Custodian and any director, officer, employee, or agent of the Custodian against
any loss, liability, or expense (including reasonable attorneys’ fees) incurred
in connection with any claim or legal action relating to:
(a) this
Agreement;
(b) the
Certificates; or
(c) the
performance of any of the Custodian’s duties under this Agreement,
other
than any loss, liability, or expense (i) resulting from any breach of a
Servicer’s obligations in connection with a Servicing Agreement for which the
Servicer has performed its obligation to indemnify the Custodian pursuant to
such Servicing Agreement, (ii) resulting from any breach of the Seller’s
obligations in connection with a Sale Agreement for which the Seller has
performed its obligation to indemnify the Custodian pursuant to such Sale
Agreement, or (iii) incurred because of willful misfeasance, bad faith, or
negligence in the performance of any of the Custodian’s duties under this
Agreement. This indemnity shall survive the termination of this Agreement or
the
earlier resignation or removal of the Custodian.
51
ARTICLE
IX
ADMINISTRATION
OF THE MORTGAGE LOANS
BY
THE MASTER SERVICER
Section
9.01 Duties
of the Master Servicer; Enforcement of Servicer’s Obligations.
(a) The
Master Servicer, on behalf of the Trustee, the Securities Administrator, the
Depositor and the Certificateholders, shall monitor the performance of the
Servicers under the related Servicing Agreements, and (except as set forth
below) shall use its reasonable good faith efforts to cause the Servicers to
duly and punctually perform their duties and obligations thereunder as
applicable. Upon the occurrence of an Event of Default of which a Responsible
Officer of the Master Servicer has actual knowledge, the Master Servicer shall
promptly notify the Securities Administrator and the Trustee and shall specify
in such notice the action, if any, the Master Servicer plans to take in respect
of such default. So long as an Event of Default shall occur and be continuing,
the Master Servicer shall take the actions specified in Article VII.
If
(i) a
Servicer reports a delinquency on a monthly report and (ii) such Servicer,
by 11
a.m. (New York Time) on the Business Day preceding the related Remittance Date,
neither makes a Delinquency Advance nor provides the Securities Administrator
and the Master Servicer with a report certifying that such a Delinquency Advance
would be a Nonrecoverable Delinquency Advance, then the Master Servicer shall
deposit in the Certificate Account not later than the Business Day immediately
preceding the related Distribution Date a Delinquency Advance in an amount
equal
to the difference between (x) with respect to each Scheduled Payment due on
a
Mortgage Loan that is delinquent (other than Relief Act Interest Shortfalls)
and
for which the related Servicer was required to make a Delinquency Advance
pursuant to the related Servicing Agreement and (y) amounts deposited in the
Collection Account to be used for Delinquency Advances with respect to such
Mortgage Loan, except to the extent the Master Servicer determines any such
Delinquency Advance to be a Nonrecoverable Delinquency Advance or Nonrecoverable
Servicing Advance. Subject to the foregoing, the Master Servicer shall continue
to make such Delinquency Advances for so long as the related Servicer is
required to do so under the related Servicing Agreement. If applicable, on
the
Business Day immediately preceding the Distribution Date, the Master Servicer
shall deliver an Officer’s Certificate to the Trustee stating that the Master
Servicer elects not to make a Delinquency Advance in a stated amount and
detailing the reason(s) it deems the Delinquency Advance to be a Nonrecoverable
Delinquency Advance. Any amounts deposited by the Master Servicer pursuant
to
this Section 9.01 shall be net of the Servicing Fee for the related Mortgage
Loans.
(b) The
Master Servicer shall pay the costs of monitoring the Servicers as required
hereunder (including costs associated with (i) termination of any Servicer,
(ii)
the appointment of a successor servicer or (iii) the transfer to and assumption
of, the servicing by the Master Servicer) and shall, to the extent permitted
by
the related Servicing Agreement, seek reimbursement therefor initially from
the
terminated Servicer. In the event the full costs associated with the transition
of servicing responsibilities to the Master Servicer or to a successor servicer
are not paid for by the predecessor or successor Servicer (provided
such
successor Servicer is not the Master Servicer), the Master Servicer may be
reimbursed therefor by the Trust for out-of-pocket costs incurred by the Master
Servicer associated with any such transfer of servicing duties from a Servicer
to the Master Servicer or any other successor servicer.
52
(c) If
the
Master Servicer assumes the servicing with respect to any of the Mortgage Loans,
it will not assume liability for the representations and warranties of any
Servicer it replaces or for any errors or omissions of such
Servicer.
If
the
Depositor or an affiliate of the Depositor, is the owner of the servicing rights
for a servicer and the Depositor chooses to terminate such servicer with or
without cause and sell those servicing rights to a successor servicer, then
the
Depositor must provide thirty (30) days’ notice to the Master Servicer, such
successor servicer must be reasonably acceptable to the Master Servicer, the
terminated servicer must be reimbursed for any unreimbursed Delinquency
Advances, servicing fees and any related expenses, the successor servicer must
be qualified to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or Freddie Mac and the
Depositor must obtain prior written consent from the Rating Agencies that the
transfer of the servicing of the mortgage loans will not result in a downgrade,
qualification or withdrawal of the then current ratings of the Certificates.
The
costs of such transfer (including any costs of the Master Servicer) are to be
borne by the Depositor.
Neither
the Depositor nor the Securities Administrator shall consent to the assignment
by any Servicer of such Servicer’s rights and obligations under the Agreement
without the prior written consent of the Master Servicer, which consent shall
not be unreasonably withheld.
Section
9.02 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, directors, employees and other Persons
acting on such Master Servicer’s behalf, and covering errors and omissions in
the performance of the Master Servicer’s obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers or
trustees.
Section
9.03 Representations
and Warranties of the Master Servicer and Others.
(a) The
Master Servicer hereby represents and warrants to the Depositor, the Securities
Administrator and the Trustee, for the benefit of the Certificateholders, as
of
the Closing Date that:
(i) it
is a
national banking association validly existing and in good standing under the
laws of the United States of America, and as Master Servicer has full power
and
authority to transact any and all business contemplated by this Agreement and
to
execute, deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary corporate action on the part of the Master
Servicer;
53
(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.
54
(b) Section
11.01 of this Agreement provides that Avelo, at its option, may purchase (or,
if
Avelo is no longer acting as a Servicer of any of the Mortgage Loans, the
Depositor, at its option, may request the Master Servicer to solicit bids in
a
commercially reasonable manner, on or after the Initial Optional Termination
Date (such event, the “Auction
Call”),
for
the purchase) of all of the Mortgage Loans (and REO Properties) at the
Termination Price. The Master Servicer shall accommodate such request to conduct
an Auction Call at its sole discretion. Avelo, in consideration of the benefits
to it of the transactions occurring under this Agreement, the Assignment
Agreements and the related Servicing Agreement, hereby represents, covenants
and
agrees with the Depositor and any applicable NIM Issuer that it will not
exercise its right to purchase, on or after the Initial Optional Termination
Date, all Mortgage Loans (and REO Properties) unless it has received (x) written
notification from the NIM Trustee that all of the outstanding notes issued
under
the applicable indenture have been paid in full or (y) an Officer’s Certificate
of the NIM Issuer pursuant to the applicable section of the relevant indenture
to the effect that all conditions precedent to the satisfaction and discharge
of
the indenture have been complied with. The Depositor hereby represents,
covenants and agrees with any applicable NIM Issuer that it will not exercise
its right to request the Master Servicer to solicit bids in a commercially
reasonable manner, on or after the Initial Optional Termination Date, for the
purchase of all of the Mortgage Loans (and REO Properties) unless it has
received (x) written notification from the NIM Trustee that all of the
outstanding notes issued under the applicable indenture have been paid in full
or (y) an Officer’s Certificate of the NIM Issuer pursuant to the applicable
section of the relevant indenture to the effect that all conditions precedent
to
the satisfaction and discharge of the indenture have been complied with. The
Master Servicer shall give Avelo written notice of the occurrence of the Initial
Optional Termination Date as promptly as practicable after the related Due
Period upon which the Initial Optional Termination Date is based.
(c) It
is
understood and agreed that the representations and warranties set forth in
this
Section shall survive the execution and delivery of this Agreement. The Master
Servicer shall indemnify the Depositor, Securities Administrator, and the
Trustee and hold them harmless against any loss, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and other
reasonable costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a material breach of
the
Master Servicer’s representations and warranties contained in Section 9.03(a)
above. It is understood and agreed that the enforcement of the obligation of
the
Master Servicer set forth in this Section 9.03 to indemnify the Depositor,
Securities Administrator, and the Trustee constitutes the sole remedy of the
Depositor and the Trustee, respecting a breach of the foregoing representations
and warranties. Such indemnification shall survive any termination of the Master
Servicer as Master Servicer hereunder and any termination of this
Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by either the Depositor, the Master Servicer,
Securities Administrator or the Trustee or notice thereof by any one of such
parties to the other parties.
Section
9.04 Master
Servicer Events of Default.
Each of
the following shall constitute a “Master
Servicer Event of Default”:
55
(a) any
failure by the Master Servicer to deposit in the Certificate Account any payment
received by it from any Servicer or required to be made by the Master Servicer
under the terms of this Agreement which continues unremedied for a period of
two
(2) Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
by any other party hereto;
(b) failure
by the Master Servicer to duly observe or perform, in any material respect,
any
other covenants, obligations or agreements of the Master Servicer as set forth
in this Agreement (including any obligation to cause any subservicer, Servicer
or Reporting Subcontractor to take any action specified in Sections 13.07(a)(3),
13.08(a) or 13.08(b)), which failure continues unremedied for a period of thirty
(30) days after the date on which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Master Servicer by the Trustee
or to the Master Servicer and the Trustee by the Holders of Certificates
evidencing at least 25% of the Voting Rights; provided
that the
thirty (30) day cure period shall not apply so long as the Depositor is required
to file Exchange Act Reports with respect to the Trust Fund, the failure to
comply with the requirements set forth in Article XIII, for which the grace
period shall not exceed the lesser of ten (10) calendar days or such period
in
which the applicable Exchange Act Report can be timely filed (without taking
into account any extensions);
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order shall
have remained in force, undischarged or unstayed for a period of sixty (60)
days;
(d) the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Master
Servicer or relating to all or substantially all of its property;
(e) the
Master Servicer shall admit in writing its inability to pay its debts as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations for three (3) Business
Days;
(f) except
as
otherwise set forth herein, the Master Servicer attempts to assign this
Agreement or its responsibilities hereunder or to delegate its duties hereunder
(or any portion thereof) without the consent of the Securities Administrator
and
the Depositor; or
(g) the
indictment of the Master Servicer for the taking of any action by the Master
Servicer, any employee thereof, any Affiliate or any director or employee
thereof that constitutes fraud or criminal activity in the performance of its
obligations under this Agreement, in each case, where such indictment materially
and adversely affects the ability of the Master Servicer to perform its
obligations under this Agreement (subject to the condition that such indictment
is not dismissed within ninety (90) days).
56
In
each
and every such case, so long as a Master Servicer Event of Default shall not
have been remedied, in addition to whatever rights the Trustee may have at
law
or equity to damages, including injunctive relief and specific performance,
the
Trustee, by notice in writing to the Master Servicer, may, and (a) upon the
request of the Holders of Certificates representing at least 51% of the Voting
Rights (except with respect to any Master Servicer Event of Default related
to a
failure to comply with an Exchange Act Filing Obligation) or (b) the Depositor,
in the case of a failure related to an Exchange Act Filing Obligation, shall,
terminate with cause all the rights and obligations of the Master Servicer
under
this Agreement.
The
Depositor shall not be entitled to terminate the rights and obligations of
the
Master Servicer, pursuant to the above paragraph, if a failure of the Master
Servicer to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
Upon
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, shall pass to and be vested in
any
successor master servicer appointed hereunder which accepts such appointments.
Upon written request from the Trustee or the Depositor, the Master Servicer
shall prepare, execute and deliver to the successor entity designated by the
Trustee any and all documents and other instruments related to the performance
of its duties hereunder as the Master Servicer and, place in such successor’s
possession all such documents with respect to the master servicing of the
Mortgage Loans and do or cause to be done all other acts or things necessary
or
appropriate to effect the purposes of such notice of termination, at the Master
Servicer’s sole expense. The Master Servicer shall cooperate with the Trustee
and such successor master servicer in effecting the termination of the Master
Servicer’s responsibilities and rights hereunder, including without limitation,
the transfer to such successor master servicer for administration by it of
all
cash amounts which shall at the time be credited to the Certificate Account
or
are thereafter received with respect to the Mortgage Loans.
Upon
the
occurrence of a Master Servicer Event of Default, the Securities Administrator
shall provide the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to a successor master servicer in the event the Trustee
should succeed to the duties of the Master Servicer as set forth
herein.
Section
9.05 Waiver
of Default.
By a
written notice, the Trustee may with the consent of a Holders of Certificates
evidencing at least 51% of the Voting Rights waive any default by the Master
Servicer in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and any
Master Servicer Event of Default arising therefrom shall be deemed to have
been
remedied for every purpose of this Agreement. No such waiver shall extend to
any
subsequent or other default or impair any right consequent thereon except to
the
extent expressly so waived.
57
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 ▇▇▇▇▇▇ ▇▇▇ and Freddie Mac approved servicer
in good standing and acceptable to the Depositor and the Rating Agencies. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided,
however,
that in
no event shall any fees in respect of master servicing paid to such successor
master servicer exceed any fees in respect of master servicing paid hereunder.
In the event that the Master Servicer’s duties, responsibilities and liabilities
under this Agreement are terminated, the Master Servicer shall continue to
discharge its duties and responsibilities hereunder until the effective date
of
such termination with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement and shall take no action whatsoever
that might impair or prejudice the rights of its successor. The termination
of
the Master Servicer shall not become effective until a successor shall be
appointed pursuant hereto and shall in no event (i) relieve the Master Servicer
of responsibility for the representations and warranties made pursuant to
Section 9.03(a) hereof and the remedies available to the Trustee under Section
9.03(b) hereof, it being understood and agreed that the provisions of Section
9.03 hereof shall be applicable to the Master Servicer notwithstanding any
such
sale, assignment, resignation or termination of the Master Servicer or the
termination of this Agreement; or (ii) affect the right of the Master Servicer
to receive payment and/or reimbursement of any amounts accruing to it hereunder
prior to the date of termination (or during any transition period in which
the
Master Servicer continues to perform its duties hereunder prior to the date
the
successor master servicer fully assumes its duties).
If
no
successor Master Servicer has accepted its appointment within ninety (90) days
of the time the Trustee receives the resignation of the Master Servicer, the
Trustee shall be the successor Master Servicer in all respects under this
Agreement and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Delinquency Advances; provided,
however,
that
any failure to perform any duties or responsibilities caused by the Master
Servicer’s failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In the Trustee’s capacity as
such successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation therefor, the Trustee shall
be
entitled to receive the compensation, reimbursement and indemnities otherwise
payable to the Master Servicer, including the fees and other amounts payable
pursuant to Section 9.07 hereof.
At
least
fifteen (15) calendar days prior to the effective date of such appointment,
the
Trustee shall provide written notice to the Depositor of such successor pursuant
to this Section 9.06.
Any
successor master servicer appointed as provided herein, shall execute,
acknowledge and deliver to the Master Servicer and to the Trustee an instrument
accepting such appointment, wherein the successor shall make the representations
and warranties set forth in Section 9.03 hereof, and whereupon such successor
shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with
like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer’s actions or failure to act prior to any such
termination or resignation or in connection with the Trustee’s assumption as
successor master servicer of such obligations, duties and
responsibilities.
58
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 and
the Securities Administrator shall be paid, together and without duplication,
the Combined Master Servicing and Securities Administrator 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 ▇▇▇▇▇▇ ▇▇▇ and FHLMC (provided, further,
that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable ▇▇▇▇▇▇
▇▇▇ and FHLMC 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.
At
least
fifteen (15) calendar days prior to the effective date of such resignation,
the
Master Servicer shall provide written notice to the Depositor of any successor
pursuant to this Section.
If
at any
time, ▇▇▇▇▇ Fargo, as Master ▇▇▇▇▇▇▇▇, resigns under this Section 9.09, or
is
removed as Master Servicer pursuant to Section 9.04, then at such time ▇▇▇▇▇
Fargo shall also resign (and shall be entitled to resign) as Securities
Administrator under this Agreement, pursuant to Section 10.07.
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.
59
Section
9.11 Limitation
on Liability of the Master Servicer.
Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Trustee, the Securities
Administrator, the Servicers or the Certificateholders for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Master Servicer or any such person against
any liability that would otherwise be imposed by reason of willful malfeasance,
bad faith or negligence in the performance of its duties or by reason of
reckless disregard for its obligations and duties under this Agreement. The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The Master
Servicer shall be under no obligation to appear in, prosecute or defend any
legal action that is not incidental to its duties as Master Servicer with
respect to the Mortgage Loans under this Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that
the Master Servicer may in its sole discretion undertake any such action that
it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom, shall be liabilities of the Trust, and the Master
Servicer shall be entitled to be reimbursed therefor out of the Master Servicer
Account in accordance with the provisions of Section 9.12.
The
Master Servicer shall not be liable for any acts or omissions of any Servicer
except to the extent that damages or expenses are incurred as a result of such
act or omissions and such damages and expenses would not have been incurred
but
for the negligence, willful malfeasance, bad faith or recklessness of the Master
Servicer in supervising, monitoring and overseeing the obligations of the
Servicers as required under this Agreement.
Section
9.12 Indemnification;
Third Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Securities Administrator
and the Trustee, and hold them harmless against, any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
any
other costs, liability, fees and expenses that the Depositor, the Securities
Administrator or the Trustee may sustain as a result of the Master Servicer’s
willful malfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard for its obligations and duties
under this Trust Agreement. Each of the Depositor, the Securities Administrator
and the Trustee shall immediately upon notice to such Person notify the Master
Servicer if a claim is made by a third party with respect to this Trust
Agreement or the Mortgage Loans which would entitle the Depositor, the
Securities Administrator or the Trustee, as the case may be, to indemnification
under this Section 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 expenses, and promptly pay, discharge and satisfy any judgment
or decree which may be entered against it or them in respect of such
claim.
60
The
Master Servicer agrees to indemnify and hold harmless the Trustee from and
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liability, fees and expenses
(including reasonable attorneys’ fees) that the Trustee may sustain as a result
of such liability or obligations of the Master Servicer and in connection with
the Trustee’s assumption (not including the Trustee’s performance, except to the
extent that costs or liability of the Trustee are created or increased as a
result of negligent or wrongful acts or omissions of the Master Servicer prior
to its replacement as Master Servicer) of the Master Servicer’s obligations,
duties or responsibilities under such agreement.
The
Trust
will indemnify the Master Servicer and hold it harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the Master
Servicer may incur or sustain in connection with, arising out of or related
to
this Agreement, the Servicing Agreements, the Sale Agreements, the Step 2
Assignment Agreements or the Certificates, except to the extent that any such
loss, liability or expense is related to (i) a material breach of the Master
Servicer’s representations and warranties in this Agreement or (ii) the Master
Servicer’s willful malfeasance, bad faith or negligence or by reason of its
reckless disregard of its duties and obligations under any such agreement;
provided
that any
such loss, liability or expense constitutes an “unanticipated expense incurred
by the REMIC” within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to reimbursement
for
any such indemnified amount from funds on deposit in the Certificate
Account.
ARTICLE
X
CONCERNING
THE SECURITIES ADMINISTRATOR
Section
10.01 Duties
of the Securities Administrator.
The
Securities Administrator shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement.
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.
61
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 Master
Servicer or the Trustee.
Section
10.02 Certain
Matters Affecting the Securities Administrator.
Except
as otherwise provided in Section 10.01:
(a) the
Securities Administrator may request and conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer’s Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and
to
have been signed or presented by the proper party or parties and the Securities
Administrator shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
62
(b) the
Securities Administrator may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(c) the
Securities Administrator shall not be liable for any action or inaction taken,
suffered or omitted by it in good faith and believed by it to be authorized
or
within the discretion or rights or powers conferred upon it by this
Agreement;
(d) the
Securities Administrator shall not be bound to make any investigation into
the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to each Class of
Certificates; provided,
however,
that if
the payment within a reasonable time to the Securities Administrator of the
costs, expenses or liabilities likely to be incurred by it in the making of
such
investigation is, in the opinion of the Securities Administrator, not reasonably
assured to the Securities Administrator by the security afforded to it by the
terms of this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so proceeding.
Nothing in this clause (iv) shall derogate from the obligation of the Master
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors, provided
that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(e) the
Securities Administrator may execute any of the trusts or powers hereunder
or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and the Securities Administrator shall not be
responsible for any misconduct or negligence on the part of any such agent,
attorney or custodian appointed by the Securities Administrator with due
care;
(f) the
Securities Administrator shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it, and none of
the
provisions contained in this Agreement shall in any event require the Securities
Administrator to perform, or be responsible for the manner of performance of,
any of the obligations of the Master Servicer under this Agreement;
(g) the
Securities Administrator shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Securities Administrator reasonable security or indemnity satisfactory to the
Securities Administrator against the costs, expenses and liabilities which
may
be incurred therein or thereby;
63
(h) the
Securities Administrator shall have no obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties hereunder and
which
in its opinion may involve it in any expense or liability; provided,
however,
that
the Securities Administrator may in its discretion undertake any such action
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and the interests of the Trustee, the
Securities Administrator and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Securities Administrator shall be entitled to be reimbursed therefor out of
the
Collection Account; and
(i) in
no
event shall the Securities Administrator be liable for special, indirect or
consequential damages.
The
Securities Administrator shall have no duty (A) to cause any recording, filing,
or depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing or
to
any rerecording, refiling or redepositing thereof, (B) to cause the provision
of
any insurance or (C) to cause the payment or discharge of any tax, assessment,
or other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Certificate 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 Transferor, as the case may be, and the
Securities Administrator assumes no responsibility for their correctness. The
Securities Administrator makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan
or
related document other than with respect to the Securities Administrator’s
execution and authentication of the Certificates. The Securities Administrator
shall not be accountable for the use or application by the Depositor or the
Master Servicer of any funds paid to the Depositor or the Master Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Depositor or the Master Servicer.
Section
10.04 Securities
Administrator May Own Certificates.
The
Securities Administrator in its individual or any other capacity may become
the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were
not
the Securities Administrator.
Section
10.05 Securities
Administrator’s Fees and Expenses.
The
Securities Administrator and the Master Servicer shall be entitled to receive,
together and without duplication, the Combined Master Servicing and Securities
Administrator Fee. The Securities Administrator and any director, officer,
employee, agent or “control person” within the meaning of the Securities Act of
1933, as amended, and the Securities Exchange of 1934, as amended (“Control
Person”),
of
the Securities Administrator shall be indemnified by the Trust and held harmless
against any loss, liability or expense (including reasonable attorney’s fees)
(i) incurred in connection with any claim or legal action relating to (a) this
Agreement, (b) the Mortgage Loans 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, 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 Certificate Account.
64
The
Securities Administrator may retain or withdraw from the Certificate Account,
(i) the Combined Master Servicing and Securities Administrator Fee, (ii) amounts
necessary to reimburse it or the Master Servicer for any previously unreimbursed
Advances and any Advances the Master Servicer deems to be non-recoverable from
the related Mortgage Loan proceeds, (iii) an aggregate annual amount to
indemnify the Master Servicer and itself for amounts due in accordance with
this
Agreement, and (iv) any other amounts which it or the Master Servicer is
entitled to receive hereunder for reimbursement, indemnification or otherwise,
including the amount to which the Securities Administrator is entitled pursuant
to Section 3.02 hereof. The Securities Administrator shall be required to pay
all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement.
Section
10.06 Eligibility
Requirements for the Securities Administrator.
The
Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with
a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
65
Any
successor Securities Administrator (i) may not be an originator, the Master
Servicer, the Servicer, the Depositor or an affiliate of the Depositor unless
the Securities Administrator functions are operated through an institutional
trust department of the Securities Administrator, (ii) must be authorized to
exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least “A/F1” by Fitch, if Fitch is a
Rating Agency and if rated by Fitch, or the equivalent rating by S&P or
▇▇▇▇▇’▇. If no successor Securities Administrator shall have been appointed and
shall have accepted appointment within sixty (60) days after the Securities
Administrator ceases to be the Securities Administrator pursuant to Section
10.07, then the Trustee may (but shall not be obligated to) become the successor
Securities Administrator. The Depositor shall appoint a successor to the
Securities Administrator in accordance with Section 10.07. The Trustee shall
notify the Rating Agencies of any change of Securities
Administrator.
Section
10.07 Resignation
and Removal of the Securities Administrator.
The
Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than sixty (60) days before the date specified in such notice when, subject
to
Section 10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within thirty (30) days after the giving
of such notice of resignation, the resigning Securities Administrator may
petition any court of competent jurisdiction for the appointment of a successor
Securities Administrator.
At
least
fifteen (15) calendar days prior to the effective date of such resignation,
the
Securities Administrator shall provide written notice to the Depositor or any
successor pursuant to this Section 10.07.
If
at any
time (i) the Securities Administrator shall cease to be eligible in accordance
with the provisions of Section 10.06 hereof and shall fail to resign after
written request thereto by the Depositor, (ii) the Securities Administrator
shall become incapable of acting, or shall be adjudged as bankrupt or insolvent,
or a receiver of the Securities Administrator or of its property shall be
appointed, or any public officer shall take charge or control of the Securities
Administrator or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii)(A) a tax is imposed with respect to the
Trust
Fund by any state in which the Securities Administrator or the Trust Fund is
located and (B) the imposition of such tax would be avoided by the appointment
of a different Securities Administrator, or (iv) the Securities Administrator
fails to comply with its obligations under Article XIII and such failure is
not
remedied within the lesser of ten (10) calendar days or such period in which
the
applicable Exchange Act Report can be timely filed (without taking into account
any extensions), then, in the case of clauses (i) through (iv), the Depositor
may remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of
which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
66
The
Holders of Certificates entitled to at least 51% of the Voting Rights may at
any
time remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys in fact duly authorized, one complete set of
which instruments shall be delivered by the successor Securities Administrator
to the Trustee, one complete set to the Securities Administrator so removed
and
one complete set to the successor so appointed. Notice of any removal of the
Securities Administrator shall be given to each Rating Agency by the successor
Securities Administrator.
Any
resignation or removal of the Securities Administrator and appointment of a
successor Securities Administrator pursuant to any of the provisions of this
Section 10.07 shall become effective upon acceptance by the successor Securities
Administrator of appointment as provided in Section 10.08 hereof. If at any
time, ▇▇▇▇▇ Fargo, as Securities Administrator, resigns or is removed as
Securities Administrator under this Section 10.07, then at such time ▇▇▇▇▇
Fargo
shall also resign (and shall be entitled to resign) as Master Servicer under
this Agreement pursuant to Section 9.09.
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 Securities Administrator and the Trustee an
instrument accepting such appointment hereunder and thereupon the resignation
or
removal of the predecessor Securities Administrator shall become effective
and
such successor Securities Administrator, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Securities Administrator herein. The Depositor, the Trustee, the Master
Servicer and the predecessor Securities Administrator shall execute and deliver
such instruments and do such other things as may reasonably be required for
more
fully and certainly vesting and confirming in the successor Securities
Administrator all such rights, powers, duties, and obligations.
No
successor Securities Administrator shall accept appointment as provided in
this
Section 10.08 unless at the time of such acceptance such successor Securities
Administrator shall be eligible under the provisions of Section 10.06 hereof
and
its appointment shall not adversely affect the then current rating of the
Certificates, as confirmed in writing by each Rating Agency and has provided
to
the Depositor in writing and in form and substance reasonably satisfactory
to
the Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
a replacement Securities Administrator.
Upon
acceptance by a successor Securities Administrator of appointment as provided
in
this Section 10.08, the Depositor shall mail notice of the succession of such
Securities Administrator hereunder to all Holders of Certificates. If the
Depositor fails to mail such notice within ten (10) days after acceptance by
the
successor Securities Administrator of appointment, the successor Securities
Administrator shall cause such notice to be mailed at the expense of the
Depositor.
67
Section
10.09 Merger
or Consolidation of the Securities Administrator.
Any
corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation
or
other entity resulting from any merger, conversion or consolidation to which
the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided
that
such corporation or other entity shall be eligible under the provisions of
Section 10.06 hereof, without the execution or filing of any paper or further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section
10.10 Assignment
or Delegation of Duties by the Securities Administrator.
Except
as expressly provided herein, the Securities Administrator shall not assign
or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed
by
the Securities Administrator; provided,
however,
that
the Securities Administrator shall have the right with the prior written consent
of the Depositor (which shall not be unreasonably withheld or delayed), and
upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency
to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out
any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall
be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the
fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE
XI
TERMINATION
Section
11.01 Termination
upon Liquidation or Purchase of the Mortgage Loans.
Subject
to Section 11.03, the obligations and responsibilities of the Depositor, the
Master Servicer, the Servicers, the Securities Administrator and the Trustee
created hereby with respect to the Trust Fund shall terminate upon the earlier
of: (a) Avelo, at its option, purchasing (the “Avelo
Call”)
(or,
if Avelo is no longer acting as a Servicer of any of the Mortgage Loans, the
Depositor may request the Master Servicer to exercise its option to conduct
an
Auction Call for the purchase of) the Mortgage Loans and all other property
of
the Trust on a non-recourse basis with no representations or warranties of
any
nature whatsoever and the sale of all of the Property of the Trust Fund, on
or
after the Initial Optional Termination Date. The Master Servicer shall
accommodate such request to conduct an Auction Call at its sole discretion.
The
Property of the Trust Fund shall be sold by the Trustee as directed by the
Depositor or the Master Servicer to the entity with the highest bid received
by
the Master Servicer from closed bids solicited by the Master Servicer or its
designee; provided
that to
effectuate such sale, the Master Servicer or its designee shall have made
reasonable efforts to sell all of the property of the Trust Fund for its fair
market value in a commercially reasonable manner and on commercially reasonable
terms, which includes the good faith solicitation of competitive bids to
prospective purchasers that are recognized broker/dealers for assets of this
type; and provided,
further,
that (i)
such sale price shall not be less than the Par Value as certified by the
Depositor, (ii) the Master Servicer receives bids from no fewer than three
prospective purchasers (which may include the Majority Class X
Certificateholder) and (iii) such sale price shall be deposited with the Master
Servicer prior to the Distribution Date following the month in which such value
is determined; and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution
to
Certificateholders of all amounts required to be distributed to them pursuant
to
this Agreement. In no event shall the trusts created hereby continue beyond
the
expiration of 21 years from the death of the survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of
St.
James’s, living on the date hereof.
68
The
proceeds of the purchase or sale of such assets of the Trust pursuant to the
Avelo Call or the Auction Call described in Section 11.01 above (other than
any
Fair Market Value Excess) will be distributed to the Holders of the Certificates
in accordance with Section 4.01. Any Fair Market Value Excess shall be
distributed to the Holders of the Class RC Certificates pursuant to Section
4.01(d).
Except
to
the extent provided above with regard to allocating any Fair Market Value Excess
to the Holders of the Class RC Certificates, the proceeds of such a purchase
or
sale will be treated as a prepayment of the Mortgage Loans for purposes of
distributions to Certificateholders. Accordingly, the sale of the Mortgage
Loans
and the REO Properties as a result of the exercise of the Avelo Call or the
Auction Call will result in the final distribution on the Certificates on that
Distribution Date.
Section
11.02 Final
Distribution on the Certificates.
If, on
any Remittance Date, the Servicers notify the Securities Administrator that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Collection Account, the Securities
Administrator shall promptly send a Notice of Final Distribution to the
applicable Certificateholders. If Avelo exercises its option to terminate the
Trust Fund pursuant to clause (a) of Section 11.01, or if an Auction Call is
requested pursuant to clause (b) of such Section, the Master Servicer, pursuant
to the applicable Step 2 Assignment Agreements and by no later than the tenth
(10th)
day of
the month of final distribution, shall notify the Trustee, each Servicer and
the
Securities Administrator of the final Distribution Date and of the applicable
sale price of the Mortgage Loans and REO Properties.
A
Notice
of Final Distribution, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 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.
69
In
the
event the Mortgage Loans (and REO Properties) and all rights and obligations
under the Servicing Agreements are purchased or sold pursuant to Section 11.01
and pursuant to the applicable Step 2 Assignment Agreement, the Master Servicer
on behalf of the Trustee is required thereunder to remit to the Securities
Administrator the applicable Termination Price on the applicable Remittance
Date
immediately preceding the applicable final Distribution Date. Upon such final
deposit with respect to the Trust Fund and the receipt by the Securities
Administrator and the Custodian of a request for release therefor in the form
of
Exhibit
L,
the
Master Servicer shall direct the Custodian to release and the Custodian shall
promptly release to the Master Servicer or its designee the Custodial Files
for
the Mortgage Loans.
Upon
presentation and surrender of the Certificates, the Securities Administrator
shall cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due the Depositor, the Master Servicer, the
Securities Administrator, the Trustee and the Custodian hereunder), in each
case
on the final Distribution Date and in the order set forth in Section 4.01,
in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i)
as
to each Class of Regular Certificates (except the Class X Certificates), the
Certificate Balance thereof plus for each such Class and the Class X
Certificates accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant
to
Section 4.01, and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Certificate Account after application pursuant
to clause (i) above (other than the amounts retained to meet claims). The
foregoing provisions are intended to distribute to each Class of Regular
Certificates any accrued and unpaid interest and principal to which they are
entitled based on the Pass-Through Rates and actual Class Principal Balances
or
notional principal balances set forth in the Preliminary Statement upon
liquidation of the Trust Fund.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six (6) months after the date specified in the above
mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the
funds and other assets which remain a part of the Trust Fund. If within one
(1)
year after the second notice all Certificates shall not have been surrendered
for cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
70
Section
11.03 Additional
Termination Requirements.
In the
event of a Terminating Purchase as provided in Section 11.01, the Trust
Fund shall be terminated in accordance with the following additional
requirements, unless the Securities Administrator receives (i) a Special
Tax Opinion, at the expense of the Purchaser, and (ii) a Special Tax
Consent from each of the Holders of the Residual Certificates (unless the
Special Tax Opinion specially provides that no REMIC-level tax will result
from
the Terminating Purchase):
(a) The
Securities Administrator on behalf of the Trustee shall sell all of the assets
of the Trust Fund to the entity with the highest bid received pursuant to the
Auction Call and, by the next Distribution Date after such sale, shall
distribute to the Certificateholders the proceeds of such sale in complete
liquidation of each of the Trust REMICs; and
(b) The
Securities Administrator shall attach a statement to the final federal income
tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the ninety (90) day liquidation
period for each such Trust REMIC was the date on which the Securities
Administrator on behalf of the Trustee sold the assets of the Trust Fund to
the
entity with the highest bid received pursuant to the Auction Call.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Amendment.
This
Agreement may be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator, the Custodian and the Trustee (and
the
Master Servicer may request an amendment or consent to any amendment of a
Servicing Agreement as directed by the Depositor) without the consent of any
of
the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any
defective provision herein or in the applicable Servicing Agreement, or to
supplement any provision in this Agreement which may be inconsistent with any
other provision herein or in the applicable Servicing Agreement, (iii) to add
to
the duties of the Depositor, or the Trustee (or with respect to the applicable
Servicing Agreement, of the applicable Servicer) the Master Servicer, the
Securities Administrator or the Custodian, (iv) to add any other provisions
with
respect to matters or questions arising hereunder or under the applicable
Servicing Agreement, or (v) to modify, alter, amend, add to or rescind any
of
the terms or provisions contained in this Agreement or in the applicable
Servicing Agreement; provided
that any
action pursuant to clause (iv) or (v) above shall not, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall be an expense of the
requesting party, but in any case shall not be an expense of the Trustee, the
Master Servicer, the Securities Administrator, the Custodian or the Trust Fund,
and shall be addressed to the foregoing entities), adversely affect in any
material respect the interests of any Certificateholder; provided,
further,
that
the amendment shall not be deemed to adversely affect in any material respect
the interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates; it being understood and agreed that any such letter in
and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Custodian, the
Securities Administrator and the Master Servicer also may at any time and from
time to time amend this Agreement (and the Master Servicer shall request the
Servicers amend the applicable Servicing Agreements), without the consent of
the
Certificateholders, to modify, eliminate or add to any of its provisions to
such
extent as shall be necessary or helpful to (i) maintain the qualification of
each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk
of
the imposition of any tax on any Trust REMIC pursuant to the Code that would
be
a claim at any time prior to the final redemption of the Certificates or (iii)
comply with any other requirements of the Code; provided
that the
Trustee and the Master Servicer have been provided an Opinion of Counsel, which
opinion shall be an expense of the party requesting such opinion but in any
case
shall not be an expense of the Trustee or the Trust Fund, to the effect that
such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a
tax
or (iii) comply with any such requirements of the Code.
71
This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer, the Custodian, the Securities Administrator and the Trustee (and
the
Master Servicer shall consent to any amendment to the applicable Servicing
Agreement as directed by the Depositor) with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66⅔% of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other
than
as described in clause (i), without the consent of the Holders of Certificates
of such Class evidencing, as to such Class, Percentage Interests aggregating
not
less than 66⅔%, or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding
any contrary provision of this Agreement, the Trustee and the Master Servicer
shall not consent to any amendment to this Agreement or any Servicing Agreement
unless (i) each shall have first received an Opinion of Counsel, which opinion
shall not be an expense of the Trustee, the Master Servicer or the Trust Fund,
to the effect that such amendment will not cause the imposition of any tax
on
any Trust REMIC or the Certificateholders or cause any Trust REMIC to fail
to
qualify as a REMIC at any time that any Certificates are outstanding and (ii)
the party seeking such amendment shall have provided written notice to the
Rating Agencies (with a copy of such notice to the Trustee and the Master
Servicer) of such amendment, stating the provisions of the Agreement to be
amended.
Notwithstanding
the foregoing provisions of this Section 12.01, with respect to any amendment
that significantly modifies the permitted activities of the Trustee or a
Servicer under the applicable Servicing Agreement, any Certificate beneficially
owned by the Depositor or any of its Affiliates or by the Seller 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.
72
Promptly
after the execution of any amendment to this Agreement or any Servicing
Agreement requiring the consent of Certificateholders, the Trustee shall furnish
written notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 12.01
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee, the Custodian, the Master Servicer
or the Securities Administrator to enter into an amendment which modifies its
obligations or liabilities without its consent and in all cases without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Trustee, the Custodian, the Master Servicer, the Securities Administrator or
the
Trust Fund), satisfactory to the Trustee, the Master Servicer or the Securities
Administrator, as applicable, that (i) such amendment is permitted and is not
prohibited by this Agreement or the applicable Servicing Agreement and that
all
requirements for amending this Agreement or such Servicing Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect
in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required
to
be reached pursuant to this Section 12.01.
Notwithstanding
the Trustee’s consent to, or the Master Servicer’s request for, any amendment of
any Servicing Agreement pursuant to the terms of this Section 12.01, such
Servicing Agreement cannot be amended without the consent of the applicable
Servicer. Neither the Master Servicer nor the Trustee shall be responsible
for
any failure by such Servicer to consent to any amendment to the applicable
Servicing Agreement.
Section
12.02 Recordation
of Agreement; Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, such recordation shall
be caused to be effected by the Depositor at the expense of the Trust, but
only
if an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders is delivered to
the
Depositor.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
12.03 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
73
Section
12.04 Intention
of Parties.
It is
the express intent of the parties hereto that the conveyance (i) of the Mortgage
Loans by the Depositor and (ii) of the Trust Fund by the Depositor to the
Trustee each be, and be construed as, an absolute sale thereof. It is, further,
not the intention of the parties that such conveyances be deemed a pledge
thereof. However, in the event that, notwithstanding the intent of the parties,
such assets are held to be the property of the Depositor, or if for any other
reason this Agreement is held or deemed to create a security interest in either
of such assets, then (i) this Agreement shall be deemed to be a security
agreement within the meaning of the Uniform Commercial Code of the State of
New
York and (ii) the conveyances provided for in this Agreement shall be deemed
to
be an assignment and a grant by the Depositor to the Trustee, for the benefit
of
the Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The
Depositor, for the benefit of the Certificateholders, shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the Trust
Fund, such security interest would be deemed to be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of the Agreement. The Depositor shall arrange for filing any Uniform
Commercial Code continuation statements in connection with any security interest
granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section
12.05 Notices.
(a) The
Securities Administrator shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) Any
material change or amendment to this Agreement;
(ii) The
occurrence of any Event of Default that has not been cured;
(iii) The
resignation or termination of a Servicer, Master Servicer, Securities
Administrator or the Trustee and the appointment of any successor;
(iv) The
repurchase or substitution of Mortgage Loans pursuant to this Agreement or
the
Sale Agreements; and
(v) The
final
payment to Certificateholders.
(b) In
addition, the Securities Administrator shall promptly make available on its
internet website to each Rating Agency copies of the following:
(vi) Each
report to Certificateholders described in Section 4.02.
(vii) The
Servicer’s annual statement of compliance and the accountant’s report described
in the Servicing Agreements; and
74
(viii) Any
notice of a purchase of a Mortgage Loan pursuant to this Agreement and any
Sale
Agreement.
(c) All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to: (a) in the case of the
Depositor, the Purchaser or the Goldman Conduit, to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President (telecopy number
(▇▇▇) ▇▇▇-▇▇▇▇ and email addresses: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇ and
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇), or such other address as may be hereafter furnished
to the Securities Administrator by the Depositor in writing; (b) in the case
of
Avelo, to Avelo Mortgage, L.L.C., ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: President and General Counsel, or such other
address as may be hereafter furnished to the Depositor and the Securities
Administrator by ▇▇▇▇▇ in writing; (c) in the case of Countrywide and
Countrywide Servicing, to Countrywide Home Loans Servicing LP, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Investor Accounting, or such
other address as may be hereafter furnished to the Depositor and the Securities
Administrator by Countrywide Servicing in writing; (d) in the case of IndyMac,
to IndyMac Bank, F.S.B., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: Secondary Marketing, or such other address as may be hereafter
furnished to the Depositor and the Securities Administrator by IndyMac in
writing; (e)
in
the case of SunTrust, to SunTrust Mortgage, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Vice President, Investor
Services, or such other address as may be hereafter furnished to the Depositor
and the Securities Administrator by SunTrust in writing; (f) in the case of
American Home, to American Home Mortgage Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇, General Counsel, or such other address
as may be hereafter furnished to the Depositor and the Securities Administrator
by American Home in writing; (g) in the case of the Trustee or the Securities
Administrator to its Corporate Trust Office, or such other address as the
Trustee or the Securities Administrator may hereafter furnish to the Depositor;
(h) in the case of the Master Servicer and the Securities Administrator, ▇▇▇▇▇
Fargo Bank, N.A., P.O. Box 98, Columbia, Maryland 21046, Attention: GSR
2006-OA1, or such other address as may be hereafter furnished to the Depositor
and the Securities Administrator by the Master Servicer in writing; (i) in
the
case of Deutsche Bank, Deutsche Bank National Trust Company, ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Trust Administration
-
GS06O1; and (n) 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 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.
75
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for sixty (60) days after its receipt of such
notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement
of
the provisions of this Section 12.07, each and every Certificateholder and
the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section
12.08 Certificates
Nonassessable and Fully Paid.
It is
the intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
Section
12.09 Waiver
of Jury Trial.
EACH
PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
76
ARTICLE
XIII
EXCHANGE
ACT REPORTING
Section
13.01 Filing
Obligations.
The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall each cause any Additional Servicer
engaged by it to deliver) to the Depositor and the Securities Administrator
on
or before March 15 of each year, commencing in March 2007, an officer’s
certificate stating, as to the signer thereof, that (i) a review of such party’s
activities during the preceding calendar year or portion thereof and of such
party’s performance under this Agreement, or such other applicable agreement in
the case of an Additional Servicer, has been made under such officer’s
supervision and (ii) to the best of such officer’s knowledge, based on such
review, such party has fulfilled all its obligations under this Agreement,
or
such other applicable agreement in the case of an Additional Servicer, in all
material respects throughout such year or portion thereof, or, if there has
been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof.
Promptly after receipt of each such officer’s certificate, the Depositor shall
review such officer’s certificate and consult with each such party, as
applicable, as to the nature of any failures by such party, in the fulfillment
of any of such party’s obligations hereunder or, in the case of an Additional
Servicer, under such other applicable agreement.
The
Master Servicer shall enforce any obligation of the Servicers, to the extent
set
forth in the related Servicing Agreement, to deliver to the Master Servicer
an
annual statement of compliance within the time frame set forth in, and in such
form and substance as may be required pursuant to, the related Servicing
Agreement The Master Servicer shall include such annual statements of compliance
with its own annual statement of compliance to be submitted to the Securities
Administrator pursuant to this Section.
The
Securities Administrator shall promptly file, and exercise its reasonable best
efforts to obtain a favorable response to, no-action requests, or other
appropriate exemptive relief with the Commission seeking the usual and customary
exemption from such reporting requirements granted to issuers of securities
similar to the Certificates if and to the extent the Depositor shall deem any
such relief to be necessary or appropriate. Unless otherwise advised by the
Depositor, the Securities Administrator shall assume that the Depositor is
in
compliance with the preceding sentence. In no event shall the Securities
Administrator have any liability for the execution or content of any document
required to be filed by the Exchange Act. The Depositor agrees to promptly
furnish to the Securities Administrator, from time to time upon request, such
further information, reports, and financial statements within its control
related to the Trust Agreement and the Mortgage Loans as the Depositor
reasonably deems appropriate to prepare and file all necessary Exchange Act
Reports with the Commission.
Section
13.02 Form
8-K Filings.
The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter within four Business Days after the occurrence of an event
requiring disclosure in a current report on Form 8-K (each such event, a
“Reportable Event”), and if requested by the Depositor, the Master Servicer
shall sign on behalf of the Depositor and the Securities Administrator shall
prepare and file with the Commission any Form 8-K, as required by the Exchange
Act. Any disclosure or information related to a Reportable Event or that is
otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to this Section and the Securities Administrator shall have
no duty or liability for any failure hereunder to determine or prepare any
Form
8-K Disclosure Information or any Form 8-K, except as set forth in this Section.
77
As
set
forth on Exhibit M hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than the end of business on the second
Business Day after the occurrence of a Reportable Event (i) certain parties
to
the GSR Mortgage Loan Trust 2006-OA1 Mortgage Pass-Through Certificates, Series
2006-OA1 transaction shall be required to provide to the Securities
Administrator and Depositor, to the extent known, in form compatible with the
Commission’s Electronic Data Gathering and Retrieval System (“▇▇▇▇▇”), or in
such other form as otherwise agreed upon by the Securities Administrator and
such party, the form and substance of any Form 8-K Disclosure Information,
if
applicable and (ii) the Depositor shall approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information. The Depositor shall be responsible for any reasonable fees and
expenses assessed or incurred by the Securities Administrator in connection
with
including any Form 8-K Disclosure Information on Form 8- K pursuant to this
paragraph.
After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a draft copy of the Form 8-K to the Depositor for review. No
later than 12:00 noon New York City time on the fourth Business Day after the
Reportable Event, a duly authorized representative of the Master Servicer in
charge of the master servicing function shall sign the Form 8-K and return
such
signed Form 8-K to the Securities Administrator, and no later than 5:00 p.m.
New
York City time on such Business Day the Securities Administrator shall file
such
Form 8-K with the Commission. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator
shall follow the procedures set forth in Section 13.05. Promptly (but no later
than one Business Day) after filing with the Commission, the Securities
Administrator shall make available on its internet website (located at
▇▇▇.▇▇▇▇▇▇▇.▇▇▇) a final executed copy of each Form 8-K prepared by the
Securities Administrator. The signing party at the Master Servicer can be
contacted at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust, GSR 2006- OA1. The parties to this Agreement acknowledge that
the performance by the Securities Administrator of its duties under this Section
related to the timely preparation and filing of Form 8-K is contingent upon
such
parties strictly observing all applicable deadlines in the performance of their
duties under this Section. The Securities Administrator shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 8-K, where such failure
results from the Securities Administrator’s inability or failure to receive on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
78
Section
13.03 Form
10-D Filings.
Within
fifteen days after each Distribution Date (subject to permitted extensions
under
the Exchange Act), the Securities Administrator shall prepare and file with
the
Commission (and the Master Servicer shall sign on behalf of the Depositor)
any
distribution report on Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act. The Securities Administrator shall
file each Form 10-D with a copy of the related Monthly Statement attached
thereto. Any disclosure in addition to the monthly statement that is required
to
be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined
and prepared by and at the direction of the Depositor pursuant to the following
paragraph and the Securities Administrator shall have no duty or liability
for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure, except as set forth in this Section.
As
set
forth on Exhibit N hereto, within five calendar days after the related
Distribution Date, (i) certain parties to the GSR Mortgage Loan Trust 2006-
OA1
Mortgage Pass-Through Certificates, Series 2006- OA1 transaction shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known, in ▇▇▇▇▇-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 shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D.
The
Depositor shall be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with any Additional
Form
10-D Disclosure on Form 10-D pursuant to this Section.
After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a draft copy of the Form 10-D to the Depositor for review. No
later than two Business Days following the tenth calendar day after the related
Distribution Date, a duly authorized representative of the Master Servicer
in
charge of the master servicing function shall sign the Form 10-D and return
such
signed Form 10-D to the Securities Administrator and Depositor, and no later
than 5:00 p.m. New York City time on the fifteenth calendar day after such
Distribution Date the Securities Administrator shall file such Form 10-D with
the Commission. If a Form 10-D cannot be filed on time or if a previously filed
Form 10-D needs to be amended, the Securities Administrator shall follow the
procedures set forth in Section 13.05. Promptly (but no later than one Business
Day) after filing with the Commission, the Securities Administrator shall make
available on its internet website (located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) 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 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust, GSR 2006- OA1. Each
party to this Agreement acknowledges that the performance by the Securities
Administrator of its duties under this Section related to the timely preparation
and filing of Form 10-D is contingent upon such parties strictly observing
all
applicable deadlines in the performance of their duties under this Section.
The
Securities Administrator shall have no liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 10-D, where such failure results from the
Securities Administrator’s inability or failure to receive on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
79
Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the fifth calendar day after
the related Distribution Date with respect to the filing of a report on Form
10-D if the answer to the questions should be no. The Securities Administrator
shall be entitled to rely on such representations in preparing, executing and/or
filing any such report.
Section
13.04 Form
10-K Filings.
Within
90
days after the end of each fiscal year of the Trust or such earlier date as
may
be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust ends on December 31 of each year),
commencing in March 2007, the Securities Administrator shall prepare and file
on
behalf of the Depositor an annual report on Form 10-K, in form and substance
as
required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Securities
Administrator within the applicable time frames set forth in this Agreement
and
the related Servicing Agreement: (i) an annual compliance statement for each
Servicer, each Additional Servicer, the Master Servicer and the Securities
Administrator (each, a “Reporting Servicer”) as described under Section 13.01,
(ii)(A) the annual reports on assessment of compliance with servicing criteria
for each Reporting Servicer, as described under this Section 13.04 and Section
13.07, and (B) if each Reporting Servicer’s report on assessment of compliance
with servicing criteria described under Section 13.07 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if each Reporting Servicer’s report on assessment of
compliance with servicing criteria is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, (iii)(A) the registered public accounting firm
attestation report for each Reporting Servicer, as described under Section
13.07, and (B) if any registered public accounting firm attestation report
described under Section 13.07 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any such registered
public accounting firm attestation report is not included as an exhibit to
such
Form 10-K, disclosure that such report is not included and an explanation why
such report is not included, and (iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as
described in Section 13.06. Any disclosure or information in addition to the
disclosure or information specified in items (i) through (iv) above that is
required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall
be determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Securities Administrator shall have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except as set forth in this Section 13.04.
As
set
forth on Exhibit O hereto, no later than March 1 of each year that the Trust
is
subject to the Exchange Act reporting requirements, commencing in 2007, (i)
certain parties to the GSR Mortgage Loan Trust 2006-OA1 Mortgage Pass-Through
Certificates, Series 2006-OA1 transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known, in
▇▇▇▇▇-compatible form, or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable and (ii) the Depositor shall
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor
shall be responsible for any reasonable fees and expenses assessed or incurred
by the Securities Administrator in connection with including any Additional
Form
10-K Disclosure on Form 10-K pursuant to this Section.
80
After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a draft copy of the Form 10-K to the Depositor for review. No
later than 12:00 noon New York City time on the fourth Business Day prior to
the
10-K Filing Deadline, a senior officer of the Depositor shall sign the Form
10-K
and return such signed Form 10-K to the Securities Administrator. If a Form
10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Securities Administrator shall follow the procedures set forth in Section
13.05. Promptly (but no later than one Business Day) after filing with the
Commission, the Securities Administrator shall make available on its internet
website located at (located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) a final executed copy of each
Form 10-K prepared by the Securities Administrator. The parties to this
Agreement acknowledge that the performance by the Securities Administrator
of
its duties under this Section related to the timely preparation and filing
of
Form 10-K is contingent upon such parties (and any Additional Servicer or
Servicing Function Participant) strictly observing all applicable deadlines
in
the performance of their duties under this Section 13.04, Section 13.06, Section
13.01, and Section 13.07. The Securities Administrator shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 10-K, where such
failure results from the Securities Administrator’s inability or failure to
receive on a timely basis, any information from any other party hereto needed
to
prepare, arrange for execution or file such Form 10-K, not resulting from its
own negligence, bad faith or willful misconduct.
Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than March 15th if the answer
to
the questions should be no. The Securities Administrator shall be entitled
to
rely on such representations in preparing, executing and/or filing any such
report.
Section
13.05 Form
15 Filing.
Prior
to
January 30 of the first year in which the Securities Administrator is able
to do
so under applicable law, the Master Servicer shall sign and the Securities
Administrator shall prepare and file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust under the Exchange Act.
81
In
the
event that the Securities Administrator becomes aware that it will be unable
to
timely file with the Commission all or any required portion of any Form 8-K,
10-D or 10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the delivery
deadlines set forth in this Agreement or for any other reason, the Securities
Administrator shall immediately notify the Depositor. In the case of Form 10-D
and 10-K, the parties to this Agreement shall cooperate and cause such other
Servicers or Servicing Function Participants, as applicable, to cooperate,
to
prepare and file a Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant
to
Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
Administrator shall, upon receipt of all required Form 8-K Disclosure
Information and upon the approval and direction of the Depositor, include such
disclosure information on the next Form 10-D. In the event that any previously
filed Form 10-D or 10-K needs to be amended, the Securities Administrator shall
notify the Depositor and prepare any necessary 10-DA or 10-KA. Any Form 15,
Form
12b-25 or any amendment to Form 8-K or 10-D shall be signed by a duly authorized
representative of the Master Servicer in charge of the master servicing
function. Any amendment to Form 10-K shall be signed by the Depositor. The
parties to this Agreement acknowledge that the performance by the Securities
Administrator of its duties under this Section related to the timely preparation
and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or
10-K
is contingent upon each such party performing its duties under this Section.
The
Securities Administrator shall have no liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K,
10-D or 10-K, where such failure results from the Securities Administrator’s
inability or failure to receive on a timely basis, any information from or
on
behalf of any other party hereto needed to prepare, arrange for execution or
file such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K,
not
resulting from its own negligence, bad faith or willful misconduct.
Section
13.06 ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification.
Each
Form
10-K shall include a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, required to be included
therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Each Servicer, the Securities
Administrator and the Master Servicer shall cause any Servicing Function
Participant engaged by it to provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification (the “Certifying Person”), by March 15 of each year in which the
Trust is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, a
“Back-Up Certification”), in the form attached hereto as Exhibit J-1 (in the
case of the Master Servicer) and Exhibit J-2 (in the case of the Securities
Administrator), upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity’s officers, directors and
Affiliates (collectively with the Certifying Person, “Certification Parties”)
can reasonably rely. The senior officer of the Depositor shall serve as the
Certifying Person on behalf of the Trust. In the event the Master Servicer,
the
Securities Administrator, the Trustee or any Servicing Function Participant
engaged by parties is terminated or resigns pursuant to the terms of this
Agreement, or any applicable sub-servicing agreement, as the case may be, such
party shall provide a Back-Up Certification to the Certifying Person pursuant
to
this Section with respect to the period of time it was subject to this Agreement
or any applicable sub-servicing agreement, as the case may be.
82
The
Master Servicer shall enforce any obligation of the Servicers, to the extent
set
forth in the related Servicing Agreement, to deliver to the Master Servicer
a
certification similar to the Back-Up Certification within the time frame set
forth in, and in such form and substance as may be required pursuant to, the
related Servicing Agreement.
Section
13.07 Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 15th of each calendar year, commencing in 2007:
(1) Each
of
the Master Servicer, the Securities Administrator and the Custodian shall
deliver to the Depositor and the Securities Administrator a report regarding
the
Master Servicer’s, the Securities Administrator’s or Custodian’s, as applicable,
assessment of compliance with the Servicing Criteria applicable to it during
the
immediately preceding calendar year, as required under Rules 13-A-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB; provided,
however,
the
Securities Administrator and Custodian shall deliver such report until a Form
15
is filed pursuant to Section 13.06. Such report shall be signed by an authorized
officer of such Person and shall address each of the Servicing Criteria
applicable to it identified in Exhibit
K
hereto
delivered to the Depositor concurrently with the execution of this Agreement.
To
the extent any of the Servicing Criteria so specified are not applicable to
such
Person, with respect to asset-backed securities transactions taken as a whole
involving such Person and that are backed by the same asset type backing the
Certificates, such report shall include such a statement to that effect. The
Depositor and its respective officers and directors shall be entitled to rely
on
upon each such servicing criteria assessment.
(2) Each
of
the Master Servicer, the Securities Administrator and the Custodian shall
deliver to the Depositor, the Securities Administrator and the Master Servicer
a
report of a registered public accounting firm that attests to, and reports
on,
the assessment of compliance made by Master Servicer, the Securities
Administrator or the Custodian, as applicable, and delivered pursuant to the
preceding paragraphs. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act, including, without limitation that in the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must
be
available for general use and not contain restricted use language. To the extent
any of the Servicing Criteria are not applicable to such Person, with respect
to
asset-backed securities transactions taken as a whole involving such Person
and
that are backed by the same asset type backing the Certificates, such report
shall include such a statement to that effect.
(3) The
Master Servicer shall cause each Servicer and Reporting Subcontractor to deliver
to the Depositor an assessment of compliance and accountant’s attestation as and
when provided in paragraphs (a) and (b) of this Section 13.07.
(4) The
Securities Administrator shall cause each Reporting Subcontractor under its
employ, if any, to deliver to the Depositor and the Master Servicer an
assessment of compliance and accountant’s attestation as and when provided in
paragraphs (a) and (b) of this Section.
83
(b) Each
assessment of compliance provided by the Securities Administrator, the Master
Servicer or the Custodian pursuant to Section 13.07(a)(2) shall address each
of
the Servicing Criteria applicable to it specified on a Exhibit
K
hereto
delivered to the Depositor concurrently with the execution of this Agreement
or,
in the case of a securities administrator, master servicer or custodian
subsequently appointed as such, on or prior to the date of such appointment.
An
assessment of compliance provided by a Subcontractor pursuant to Section
13.07(a)(3) or (4) need not address any elements of the Servicing Criteria
other
than those specified pursuant to Section 13.07(a)(1).
Section
13.08 Use
of
Subservicers and Subcontractors.
(a) The
Master Servicer shall cause any subservicer used by the Master Servicer and
shall cause each Servicer to cause any subservicer used by such servicer for
the
benefit of the Depositor to comply with the provisions of this Article XIII
to
the same extent as if such Servicer or subservicer were the Master Servicer
(except with respect to the Master Servicer’s duties with respect to preparing
and filing any Exchange Act Reports or as the Certifying Person). The Master
Servicer shall be responsible for obtaining from each Servicer and subservicer
and delivering to the Depositor any servicer compliance statement required
to be
delivered by such Servicer or subservicer pursuant to the second paragraph
of
Section 13.04, any assessment of compliance and attestation required to be
delivered by such Servicer or subservicer under Section 13.07 and any
certification required to be delivered to the Certifying Person under Section
13.05 as and when required to be delivered.
(b) It
shall
not be necessary for the Master Servicer, any Servicer, any subservicer or
the
Securities Administrator to seek the consent of the Depositor or any other
party
hereto to the utilization of any Subcontractor. The Master Servicer or the
Securities Administrator, as applicable, shall promptly upon request provide
to
the Depositor (or any designee of the Depositor, such as the Master Servicer
or
administrator) a written description (in form and substance satisfactory to
the
Depositor) of the role and function of each Subcontractor utilized by such
Person (or in the case of the Master Servicer, any Servicer or any subservicer),
specifying (i) the identity of each such Subcontractor, (ii) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Securities Administrator, as
applicable, shall cause any such Subcontractor used by such Person (or in the
case of the Master Servicer, any Servicer or any subservicer) for the benefit
of
the Depositor to comply with the provisions of Sections 13.07 of this Agreement
to the same extent as if such Subcontractor were the Master Servicer (except
with respect to the Master Servicer’s duties with respect to preparing and
filing any Exchange Act Reports or as the Certifying Person) or the Securities
Administrator, as applicable. The Master Servicer or the Securities
Administrator, as applicable, shall be responsible for obtaining from each
Subcontractor and delivering to the Depositor and the Master Servicer, any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 13.07, in each case as and when required to be
delivered.
*
* * * *
* *
84
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
|
GS
MORTGAGE SECURITIES CORP.,
as
Depositor
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Master Servicer
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Securities Administrator
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
solely in its capacity as Trustee and not in its individual capacity |
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
solely in its capacity as Custodian and not in its individual capacity |
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Solely
for purposes of Sections 9.03(b) and 11.01
accepted
and agreed to by:
AVELO
MORTGAGE, L.L.C.
By:
Name:
Title:
2
SCHEDULE
I
Mortgage
Loan Schedule
[On
File
with the Securities Administrator as provided by the Depositor]
86
EXHIBIT
A
FORMS
OF
CLASS A CERTIFICATES AND CLASS M CERTIFICATES
(CLASS
1-A-1, CLASS 2-A-1, CLASS 2-A-2, CLASS 2-A-3, CLASS 3-A-1, CLASS 3-A-2, 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)
A-1
EXHIBIT
B
FORM
OF
CLASS P CERTIFICATES
B-1
EXHIBIT
C
FORMS
OF
CLASS R, CLASS RC AND CLASS RX CERTIFICATES
89
EXHIBIT
D
FORM
OF
CLASS X CERTIFICATES
90
EXHIBIT
E
FORM
OF
INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Trustee]
_____________________
_____________________
|
Re:
|
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the
“Agreement”), among GS Mortgage Securities Corp., as depositor (the
“Depositor”), Deutsche Bank National Trust Company, as trustee (in such
capacity, the “Trustee”) and as custodian (the “Custodian”) and ▇▇▇▇▇
Fargo Bank, N.A., as master servicer (in such capacity, the
“Master Servicer”)
and securities administrator (in such capacity, the
“Securities Administrator”)
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Master Servicing and Trust
Agreement (the “Trust
Agreement”),
the
undersigned, as Custodian, for each Mortgage Loan listed in the Mortgage Loan
Schedule for which the undersigned is specified as the Custodian (other than
any
Mortgage Loan listed in the attached exception report), it has
received:
(i) the
original Mortgage Note, endorsed as provided in the following form: “Pay to the
order of ________, without recourse”; and
(ii) except
with respect to a MERS Loan, an executed Assignment of Mortgage (which may
be
included in a blanket assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Custodian has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the Trust Agreement.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the 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.
91
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement.
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
not in its individual capacity, but solely as Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
92
EXHIBIT
F
FORM
OF
DOCUMENT CERTIFICATION
AND
EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Trustee]
_____________________
_____________________
|
Re:
|
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the
“Agreement”), among GS Mortgage Securities Corp., as depositor (the
“Depositor”), Deutsche Bank National Trust Company, as trustee (in such
capacity, the “Trustee”) and as custodian (the “Custodian”) and ▇▇▇▇▇
Fargo Bank, N.A., as master servicer (in such capacity, the
“Master Servicer”)
and securities administrator (in such capacity, the
“Securities Administrator”)
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Master Servicing and Trust
Agreement (the “Trust
Agreement”),
the
undersigned, as Custodian, hereby certifies, subject to any exceptions listed
on
the exception report attached hereto, that as to each Mortgage Loan listed
in
the Mortgage Loan Schedule for which the undersigned is specified as the
Custodian (other than any Mortgage Loan paid in full or listed on the attached
exception report) it has received:
(a) the
original Mortgage Note, endorsed without recourse in blank by the last endorsee,
including all intervening endorsements showing a complete chain of endorsement
from the originator to the last endorsee;
(b) the
original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS
Loan;
(c) personal
endorsement and/or guaranty agreements executed in connection with all non
individual Mortgage Loans (corporations, partnerships, trusts, estates, etc.
(if
provided);
(d) the
related original Mortgage and evidence of its recording or a certified copy
of
the Mortgage with evidence of recording thereof;
93
(e) except
with respect to a MERS Loan, originals of any intervening Mortgage assignment
or
certified copies in either case evidencing recording; provided
that the
assignment may be in the form of a blanket assignment or assignments, a copy
of
which with evidence of recording shall be acceptable;
(f) if
provided, originals of all assumption, modification, agreements or certified
copies thereof, in either case with evidence of recording if required to
maintain the lien of the mortgage or if otherwise required, or, if recordation
is not required, an original or copy of the agreement;
(g) an
original or copy of a title insurance policy, a certificate of title, or
attorney’s opinion of title and abstract of title;
(h) to
the
extent applicable, (1) an original power of attorney, or a certified copy
thereof, in either case with evidence of recordation if the document to which
such power of attorney relates is recorded, and (2) if provided, an original
or
copy of any surety agreement or guaranty agreement;
(i) for
each
Mortgage Loan with respect to which the ▇▇▇▇▇▇▇▇▇’s name as it appears on the
note does not match the borrower’s name on the Mortgage Loan Schedule, one of
the following: the original of the assumption agreement or a certified copy
thereof, in either case with evidence of recording thereon;
(j) a
security agreement, chattel mortgage or equivalent document executed in
connection with the mortgage, if provided.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items 2, 8, 33 and 34 of the Mortgage Loan
Schedule accurately reflects information set forth in the Custodial
File.
The
Custodian has made no independent examination of any documents contained in
each
Mortgage File beyond the review of the Custodial File specifically required
in
the Trust Agreement. The Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the 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 Trust Agreement.
94
DEUTSCHE
BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but solely as Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
95
EXHIBIT
G
FORM
OF
RESIDUAL TRANSFER AFFIDAVIT
Mortgage
Pass-Through Certificates, Series 2006-OA1
|
STATE
OF
|
)
|
|
|
)
ss.:
|
||
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of ___________________, the proposed Transferee of
an
Ownership Interest in a Class [R][RC][RX] Certificate (the “Certificate”)
issued
pursuant to the Master Servicing and Trust Agreement (the “Agreement”),
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”)
and as
custodian (the “Custodian”)
and
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer (in such capacity, the “Master
Servicer”)
and
Securities Administrator (in such capacity, 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, the Securities Administrator and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise liable
for the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such subsequent Transferee
is a Permitted Transferee and, at the time of Transfer, such Person does not
have actual knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass through entity an affidavit that such record holder
is a Permitted Transferee and the pass through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass through entities as a nominee for another
Person.)
96
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory sales.
The Transferee expressly agrees to be bound by and to abide by the provisions
of
Section 5.02(c) of the Agreement and the restrictions noted on the face of
the
Certificate. The Transferee understands and agrees that any breach of any of
the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Securities
Administrator a certificate substantially in the form set forth as Exhibit
H
to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends to
pay
its debts as they come due in the future, and understands that the taxes payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is __________.
9. The
Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable to
a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
ཥ
The
present value of the anticipated tax liabilities associated with holding the
Certificate, as applicable, does not exceed the sum of:
97
(i) the
present value of any consideration given to the Transferee to acquire such
Certificate;
(ii) the
present value of the expected future distributions on such Certificate;
and
(iii) the
present value of the anticipated tax savings associated with holding such
Certificate as the related REMIC generates losses.
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to
the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by
the
Transferee.
ཥ
The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
(i) the
Transferee is an “eligible corporation,” as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), as to which income from the Certificate will only
be
taxed in the United States;
(ii) at
the
time of the transfer, and at the close of the Transferee’s two fiscal years
preceding the year of the transfer, the Transferee had gross assets for
financial reporting purposes (excluding any obligation of a person related
to
the Transferee within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10
million;
(iii) the
Transferee will transfer the Certificate only to another “eligible corporation,”
as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i),
(ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
(iv) the
Transferee determined the consideration paid to it to acquire the Certificate
based on reasonable market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee) that it
has
determined in good faith.
ཥ
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.
98
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__
99
EXHIBIT
H
FORM
OF
TRANSFEROR CERTIFICATE
__________,
20__
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
Attention:
▇▇▇▇▇
Fargo Bank, N.A.
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
|
Re:
|
GSR
Mortgage Loan Trust 2006-OA1, Mortgage Pass-Through Certificates
Series
2006-OA1, Class [___]
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”),
and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that
would be deemed, or taken any other action which would result in, a violation
of
Section 5 of the Act and (c) to the extent we are disposing of a Residual
Certificate, (A) we have no knowledge the Transferee is not a Permitted
Transferee and (B) after conducting a reasonable investigation of the financial
condition of the Transferee, we have no knowledge and no reason to believe
that
the Transferee will not pay all taxes with respect to the Residual Certificates
as they become due and (C) we have no reason to believe that the statements
made
in paragraphs 7, 10 and 11 of the Transferee’s Residual Transfer Affidavit are
false.
Very
truly yours,
Print
Name of Transferor
By:
Authorized
Officer
100
EXHIBIT
I
FORM
OF
RULE 144A LETTER
____________,
20__
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York,
New York 10004
Attention:
▇▇▇▇▇
Fargo Bank, N.A.
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
Re: GSR
Mortgage Loan Trust 2006-OA1, Mortgage Pass-Through Certificates, Series
2006-OA1,
Class [__]
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”),
or
any state securities laws and are being transferred to us in a transaction
that
is exempt from the registration requirements of the Act and any such laws,
(b)
we have such knowledge and experience in financial and business matters that
we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and
all
matters relating thereto or any additional information deemed necessary to
our
decision to purchase the Certificates, (d) either we are purchasing a Class
1-A-1, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 3-A-1, Class 3-A-2, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class
M-8
or a Class M-9 Certificate, or we are not an employee benefit plan that is
subject to Title I of the Employee Retirement Income Security Act of 1974,
as
amended (“ERISA”),
or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code
of 1986, as amended (the “Code”),
or a
plan subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA or the Code, nor are we acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement
to
effect such acquisition, or, with respect to a Class X Certificate or Class
P
Certificate that has been the subject of an ERISA-Qualifying Underwriting,
the
purchaser is an insurance company that is purchasing this certificate with
funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE
95-60”))
and
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or
101
accept
a
transfer, pledge or other disposition of the Certificates, any interest in
the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates and (f) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is
being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
102
ANNEX
1
TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule
144A”),
because (i) the Buyer owned and/or invested on a discretionary basis
$___________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
____ Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
____ Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
____ Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached
hereto.
____ Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
____ Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
103
____ 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.
104
_____________________________
Print
Name of Transferee
By:
Name:
Title:
Date:
105
ANNEX
2
TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule
144A”),
because Buyer is part of a Family of Investment Companies (as defined below),
is
such an officer of the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
____ The
Buyer
owned $___________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$__________ in securities (other than the excluded securities referred to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
106
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:______________________________
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.
107
EXHIBIT
J-1
FORM
OF
BACK-UP CERTIFICATION
(Master
Servicer)
|
Re:
|
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the
“Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity,
the
“Trustee”)
and as custodian (the “Custodian”)
and ▇▇▇▇▇ Fargo Bank, National Association, as master servicer (in
such
capacity, the “Master
Servicer”)
and securities administrator (in such capacity, the “Securities
Administrator”).
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to the Depositor, and its officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13-A-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13-A-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 2006 that were delivered by the
Company to the Depositor and the Securities Administrator pursuant to the
Agreement (collectively, the “Company Servicing Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the
Depositor;
(4) I
am responsible for reviewing the activities performed by the Company as a
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Agreement;
and
108
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
Date: _________________________
|
By:
|
________________________________
|
|
Name:
|
|
Title:
|
109
EXHIBIT
J-2
FORM
OF
BACK-UP CERTIFICATION
(Securities
Administrator)
|
Re:
|
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the
“Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity,
the
“Trustee”)
and as custodian (the “Custodian”)
and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (in such capacity,
the
“Master
Servicer”)
and securities administrator (in such capacity, the “Securities
Administrator”).
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to the Depositor, and its officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the report on assessment of the Company’s compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”), provided in accordance with Rules 13-A-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Item 1122
of Regulation AB (the “Servicing Assessment”), the registered public accounting
firm’s attestation report provided in accordance with Rules 13-A-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), all reports on Form 10-D containing statements to Certificateholders
filed in respect of the period included in the year covered by the annual report
of the Trust Fund (collectively, the “Distribution Date Statements”);
(2) Assuming
the accuracy and completeness of the information delivered to the Company by
the
Master Servicer as provided in the Agreement and subject to paragraph (4) below,
the distribution information determined by the Company and set forth in the
Distribution Date Statements contained in all Form 10-D’s included in the year
covered by the annual report of such Trust on Form 10-K for the calendar year
200[ ], is complete and does not contain any material misstatement of fact
as of
the last day of the period covered by such annual report;
(3) Based
solely on the information delivered to the Company by the Master Servicer as
provided in the Agreement, (i) the distribution information required under
the
Agreement to be contained in the Trust Fund’s Distribution Date Statements and
(ii) the servicing information required to be provided by the Master Servicer
to
the Securities Administrator for inclusion in the Trust Fund’s Distribution Date
Statements, to the extent received by the Securities Administrator from the
Master Servicer in accordance with the Agreement, is included in such
Distribution Date Statements;
110
(4) The
Company is not certifying as to the accuracy, completeness or correctness of
the
information which it received from the Master Servicer and did not independently
verify or confirm the accuracy, completeness or correctness of the information
provided by the Master Servicer;
(5) I
am responsible for reviewing the activities performed by the Company as a person
“performing a servicing function” under the Agreement, and based on my knowledge
and the compliance review conducted in preparing the Servicing Assessment and
except as disclosed in the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement; and
(6) The
Servicing Assessment and Attestation Report required to be provided by the
Company pursuant to the Agreement, have been provided to the Depositor. Any
material instances of noncompliance described in such reports have been
disclosed to the Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date: ________________________________
By: ________________________________
Name:
Title:
111
EXHIBIT
K
FORM
OF
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
STATEMENT
The
assessment of compliance to be delivered by the [Master Servicer] [Securities
Administrator] [Custodian] shall address, at a minimum, the criteria identified
as below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
General
Servicing Considerations
|
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
||
112
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
||
113
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|||
114
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|||
115
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at least 30 calendar
days prior to these dates, or such other number of days specified
in the
transaction agreements.
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|||
116
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|||
|
|
|
|||
117
EXHIBIT
L
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
To:
Deutsche
Bank National Trust Company
▇▇▇▇
▇▇▇▇
▇▇. ▇▇▇▇▇▇ Place,
Santa
Ana, California 92705
Attention:
Mortgage Custody - GS06O1
RE:
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the “Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”), Deutsche
Bank National Trust Company, as trustee (in such capacity, the “Trustee”) and as
custodian (the “Custodian”)
and
▇▇▇▇▇ Fargo Bank, N.A., as master servicer (in such capacity, the “Master
Servicer”) and securities administrator (in such capacity, the “Securities
Administrator”)..
In
connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan
described below, for the reason indicated below. Further, any payments received
by the Servicer listed below in connection with this request for release have
been deposited into the Certificate Account for the benefit of the
Trust.
FROM:
Servicer:________________________________________________________,
City/State______________
SERVICER
LOAN #: ___________________________,
DEUTSCHE
BANK #_____________________________________,
Deal
Name: ____________________,
Mortgagor’s
Name: _______________________________________________
Original
loan amount: ________
Property
Address: ________________________________________________
Payment
amount: ____________
City/State/Zip:
__________________________________________________
Interest
rate: ________________
REASON
FOR REQUESTING DOCUMENTS (check one)
________1.
Loan paid in full
________2.
Loan in foreclosure
________3.
Loan being substituted
________4.
Loan being liquidated by company
________5.
Other (please explain)
_________________________________________________________
If
box 1
or 4 above is checked, and if all or part of the Custodial File was previously
released to us, then please provide a copy of the previous release request
(RR)
to us as well as any additional documents in your possession relating to the
above specified mortgage loan.
If
box 2
or 5 above is checked, then upon our return to you as custodian, all of the
documents for the above specified mortgage loan, please acknowledge your receipt
by signing in the space indicated below, and returning this form to
us.
COMPANY
NAME:____________________________________________
PHONE#__________________________________
AUTHORIZED
SIGNER:
_________________________________________________________________________
NAME(TYPED):_______________________________________________
DATE:____________________________
PHONE
#:_____________________________________________________
DATE:__________________________
PLEASE
MAIL DOCUMENTS BACK TO: ________________________________________________________________________________________________________________________________________________________________________________________________
118
EXHIBIT
M
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
The
party to this Agreement entering into such Material Definitive
Agreement.
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
The
party to this Agreement requesting termination of a Material Definitive
Agreement.
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
|
|
▪
Sponsor
|
Depositor/Sponsor
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
119
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Master
Servicer and Securities Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Trust Agreement.
|
Securities
Administrator
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
(i)
Securities Administrator and (ii) Depositor with respect to any
information relating to the Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/
Servicer
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Depositor/Successor
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor
and Securities Administrator
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
Parties (excluding Custodian and Trustee)
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Seller
for reporting/disclosing the financial statement or
exhibit
|
120
EXHIBIT
N
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer,
Master Servicer and Securities Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor
|
Sponsor/Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
(i)
Depositor (with respect to the Closing Date) and (ii) Master
Servicer
|
121
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable disclosure items on Form
8-K
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
122
EXHIBIT
O
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
(i)
As to agreements, Securities Administrator/Depositor and (ii) as
to
financial statements, Reporting Parties (as to themselves) (excluding
Custodian or Trustee)
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor
|
Sponsor/Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor, Depositor or Issuing Entity is an affiliate of the
following parties, and (b) to the extent known and material, any
of the
following parties are affiliated with one another:
|
Sponsor/Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor, Depositor or Issuing Entity on the one hand, and (b) any
of the
following parties (or their affiliates) on the other hand, that exist
currently or within the past two years and that are material to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Depositor
as to (a)
|
123
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor, Depositor or Issuing Entity on the
one
hand, and (b) any of the following parties (or their affiliates)
on the
other hand, that exist currently or within the past two years and
that are
material:
|
Depositor/Sponsor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
124
EXHIBIT
C
FORMS
OF
CLASS R, CLASS RC AND CLASS RX CERTIFICATES
C-1
EXHIBIT
D
FORM
OF
CLASS X CERTIFICATES
D-1
EXHIBIT
E
FORM
OF
INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Trustee]
_____________________
_____________________
|
Re:
|
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the
“Agreement”), among GS Mortgage Securities Corp., as depositor (the
“Depositor”), Deutsche Bank National Trust Company, as trustee (in such
capacity, the “Trustee”) and as custodian (the “Custodian”) and ▇▇▇▇▇
Fargo Bank, N.A., as master servicer (in such capacity, the
“Master Servicer”)
and securities administrator (in such capacity, the
“Securities Administrator”)
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Master Servicing and Trust
Agreement (the “Trust
Agreement”),
the
undersigned, as Custodian, for each Mortgage Loan listed in the Mortgage Loan
Schedule for which the undersigned is specified as the Custodian (other than
any
Mortgage Loan listed in the attached exception report), it has
received:
(i) the
original Mortgage Note, endorsed as provided in the following form: “Pay to the
order of ________, without recourse”; and
(ii) except
with respect to a MERS Loan, an executed Assignment of Mortgage (which may
be
included in a blanket assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Custodian has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the Trust Agreement.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the 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.
E-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement.
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
not in its individual capacity, but
solely
as
Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
E-2
EXHIBIT
F
FORM
OF
DOCUMENT CERTIFICATION
AND
EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Trustee]
_____________________
_____________________
|
Re:
|
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the
“Agreement”), among GS Mortgage Securities Corp., as depositor (the
“Depositor”), Deutsche Bank National Trust Company, as trustee (in such
capacity, the “Trustee”) and as custodian (the “Custodian”) and ▇▇▇▇▇
Fargo Bank, N.A., as master servicer (in such capacity, the
“Master Servicer”)
and securities administrator (in such capacity, the
“Securities Administrator”)
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Master Servicing and Trust
Agreement (the “Trust
Agreement”),
the
undersigned, as Custodian, hereby certifies, subject to any exceptions listed
on
the exception report attached hereto, that as to each Mortgage Loan listed
in
the Mortgage Loan Schedule for which the undersigned is specified as the
Custodian (other than any Mortgage Loan paid in full or listed on the attached
exception report) it has received:
(a) the
original Mortgage Note, endorsed without recourse in blank by the last endorsee,
including all intervening endorsements showing a complete chain of endorsement
from the originator to the last endorsee;
(b) the
original Assignment of Mortgage in blank, unless the Mortgage Loan is a MERS
Loan;
(c) personal
endorsement and/or guaranty agreements executed in connection with all non
individual Mortgage Loans (corporations, partnerships, trusts, estates, etc.
(if
provided);
(d) the
related original Mortgage and evidence of its recording or a certified copy
of
the Mortgage with evidence of recording thereof;
F-1
(e) except
with respect to a MERS Loan, originals of any intervening Mortgage assignment
or
certified copies in either case evidencing recording; provided
that the
assignment may be in the form of a blanket assignment or assignments, a copy
of
which with evidence of recording shall be acceptable;
(f) if
provided, originals of all assumption, modification, agreements or certified
copies thereof, in either case with evidence of recording if required to
maintain the lien of the mortgage or if otherwise required, or, if recordation
is not required, an original or copy of the agreement;
(g) an
original or copy of a title insurance policy, a certificate of title, or
attorney’s opinion of title and abstract of title;
(h) to
the
extent applicable, (1) an original power of attorney, or a certified copy
thereof, in either case with evidence of recordation if the document to which
such power of attorney relates is recorded, and (2) if provided, an original
or
copy of any surety agreement or guaranty agreement;
(i) for
each
Mortgage Loan with respect to which the ▇▇▇▇▇▇▇▇▇’s name as it appears on the
note does not match the borrower’s name on the Mortgage Loan Schedule, one of
the following: the original of the assumption agreement or a certified copy
thereof, in either case with evidence of recording thereon;
(j) a
security agreement, chattel mortgage or equivalent document executed in
connection with the mortgage, if provided.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items 2, 8, 33 and 34 of the Mortgage Loan
Schedule accurately reflects information set forth in the Custodial
File.
The
Custodian has made no independent examination of any documents contained in
each
Mortgage File beyond the review of the Custodial File specifically required
in
the Trust Agreement. The Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the 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 Trust Agreement.
F-2
DEUTSCHE
BANK NATIONAL TRUST
COMPANY
not in its individual capacity, but
solely
as
Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
F-3
EXHIBIT
G
FORM
OF
RESIDUAL TRANSFER AFFIDAVIT
Mortgage
Pass-Through Certificates, Series 2006-OA1
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of ___________________, the proposed Transferee of
an
Ownership Interest in a Class [R][RC][RX] Certificate (the “Certificate”)
issued
pursuant to the Master Servicing and Trust Agreement (the “Agreement”),
among
GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (the “Trustee”)
and as
custodian (the “Custodian”)
and
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer (in such capacity, the “Master
Servicer”)
and
Securities Administrator (in such capacity, 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, the Securities Administrator and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise liable
for the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such subsequent Transferee
is a Permitted Transferee and, at the time of Transfer, such Person does not
have actual knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass through entity an affidavit that such record holder
is a Permitted Transferee and the pass through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass through entities as a nominee for another
Person.)
G-1
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory sales.
The Transferee expressly agrees to be bound by and to abide by the provisions
of
Section 5.02(c) of the Agreement and the restrictions noted on the face of
the
Certificate. The Transferee understands and agrees that any breach of any of
the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Securities
Administrator a certificate substantially in the form set forth as Exhibit
H
to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends to
pay
its debts as they come due in the future, and understands that the taxes payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is __________.
9. The
Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable to
a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
o
The present value of
the anticipated tax liabilities associated with holding the Certificate, as
applicable, does not exceed the sum of:
G-2
(i) the
present value of any consideration given to the Transferee to acquire such
Certificate;
(ii) the
present value of the expected future distributions on such Certificate;
and
(iii) the
present value of the anticipated tax savings associated with holding such
Certificate as the related REMIC generates losses.
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to
the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by
the
Transferee.
o
The transfer of the Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and,
accordingly,
(i) the
Transferee is an “eligible corporation,” as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), as to which income from the Certificate will only
be
taxed in the United States;
(ii) at
the
time of the transfer, and at the close of the Transferee’s two fiscal years
preceding the year of the transfer, the Transferee had gross assets for
financial reporting purposes (excluding any obligation of a person related
to
the Transferee within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10
million;
(iii) the
Transferee will transfer the Certificate only to another “eligible corporation,”
as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i),
(ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
(iv) the
Transferee determined the consideration paid to it to acquire the Certificate
based on reasonable market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee) that it
has
determined in good faith.
o
None of the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any
federal, state or local law that is substantially similar to Title I of ERISA
or
Section 4975 of the Code, and the Transferee is not acting on behalf of or
investing plan assets of such a plan.
G-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
____
day of _______, 20__.
_______________________________
Print
Name of Transferee
By:______________________________
Name:
Title:
[Corporate
Seal]
ATTEST:
_______________________________
[Assistant]
Secretary
Personally
appeared before me the above-named __________, known or proved to me to be
the
same person who executed the foregoing instrument and to be the ___________
of
the Transferee, and acknowledged that he executed the same as his free act
and
deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this ____ day of ________, 20__.
___________________________
NOTARY
PUBLIC
My
Commission expires the __ day
of
_________, 20__
G-4
EXHIBIT
H
FORM
OF
TRANSFEROR CERTIFICATE
__________,
20__
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York,
New York 10004
Attention:
▇▇▇▇▇
Fargo Bank, N.A.
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
|
Re:
|
GSR
Mortgage Loan Trust 2006-OA1, Mortgage Pass-Through Certificates
Series
2006-OA1, Class [___]
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”),
and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that
would be deemed, or taken any other action which would result in, a violation
of
Section 5 of the Act and (c) to the extent we are disposing of a Residual
Certificate, (A) we have no knowledge the Transferee is not a Permitted
Transferee and (B) after conducting a reasonable investigation of the financial
condition of the Transferee, we have no knowledge and no reason to believe
that
the Transferee will not pay all taxes with respect to the Residual Certificates
as they become due and (C) we have no reason to believe that the statements
made
in paragraphs 7, 10 and 11 of the Transferee’s Residual Transfer Affidavit are
false.
Very
truly yours,
_______________________________
Print
Name of Transferor
By:
Authorized
Officer
H-1
EXHIBIT
I
FORM
OF
RULE 144A LETTER
____________,
20__
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York,
New York 10004
Attention:
▇▇▇▇▇
Fargo Bank, N.A.
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
|
Re:
|
GSR
Mortgage Loan Trust 2006-OA1, Mortgage Pass-Through Certificates,
Series
2006-OA1,
Class [__]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”),
or
any state securities laws and are being transferred to us in a transaction
that
is exempt from the registration requirements of the Act and any such laws,
(b)
we have such knowledge and experience in financial and business matters that
we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and
all
matters relating thereto or any additional information deemed necessary to
our
decision to purchase the Certificates, (d) either we are purchasing a Class
1-A-1, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 3-A-1, Class 3-A-2, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class
M-8
or a Class M-9 Certificate, or we are not an employee benefit plan that is
subject to Title I of the Employee Retirement Income Security Act of 1974,
as
amended (“ERISA”),
or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code
of 1986, as amended (the “Code”),
or a
plan subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA or the Code, nor are we acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement
to
effect such acquisition, or, with respect to a Class X Certificate or Class
P
Certificate that has been the subject of an ERISA-Qualifying Underwriting,
the
purchaser is an insurance company that is purchasing this certificate with
funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE
95-60”))
and
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or
I-1
accept
a
transfer, pledge or other disposition of the Certificates, any interest in
the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates and (f) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is
being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
I-2
ANNEX
1
TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule
144A”),
because (i) the Buyer owned and/or invested on a discretionary basis
$___________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
____
Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
____
Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
____
Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached
hereto.
____
Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
____
Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
______________________
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
I-3
____ State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
____ Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
____ Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
____ Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
I-4
_____________________________
Print
Name of Transferee
By:
Name:
Title:
Date:
I-5
ANNEX
2
TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule
144A”),
because Buyer is part of a Family of Investment Companies (as defined below),
is
such an officer of the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
____ The
Buyer
owned $___________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$__________ in securities (other than the excluded securities referred to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
I-6
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
_________________________________
Print
Name of Transferee
By:_______________________________
Name:
Title:
IF
AN
ADVISER:
__________________________________
Print
Name of Buyer
Date:______________________________
I-7
EXHIBIT
J-1
FORM
OF
BACK-UP CERTIFICATION
(Master
Servicer)
|
Re:
|
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the
“Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity,
the
“Trustee”)
and as custodian (the “Custodian”)
and ▇▇▇▇▇ Fargo Bank, National Association, as master servicer (in
such
capacity, the “Master
Servicer”)
and securities administrator (in such capacity, the “Securities
Administrator”).
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to the Depositor, and its officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13-A-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13-A-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 2006 that were delivered by the
Company to the Depositor and the Securities Administrator pursuant to the
Agreement (collectively, the “Company Servicing Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the
Depositor;
(4) I
am responsible for reviewing the activities performed by the Company as a
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Agreement;
and
J-1-1
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
Date: _________________________
|
By:
|
________________________________
|
|
Name:
|
|
Title:
|
J-1-2
EXHIBIT
J-2
FORM
OF
BACK-UP CERTIFICATION
(Securities
Administrator)
|
Re:
|
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the
“Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”),
Deutsche Bank National Trust Company, as trustee (in such capacity,
the
“Trustee”)
and as custodian (the “Custodian”)
and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (in such capacity,
the
“Master
Servicer”)
and securities administrator (in such capacity, the “Securities
Administrator”).
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to the Depositor, and its officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the report on assessment of the Company’s compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”), provided in accordance with Rules 13-A-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Item 1122
of Regulation AB (the “Servicing Assessment”), the registered public accounting
firm’s attestation report provided in accordance with Rules 13-A-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), all reports on Form 10-D containing statements to Certificateholders
filed in respect of the period included in the year covered by the annual report
of the Trust Fund (collectively, the “Distribution Date Statements”);
(2) Assuming
the accuracy and completeness of the information delivered to the Company by
the
Master Servicer as provided in the Agreement and subject to paragraph (4) below,
the distribution information determined by the Company and set forth in the
Distribution Date Statements contained in all Form 10-D’s included in the year
covered by the annual report of such Trust on Form 10-K for the calendar year
200[ ], is complete and does not contain any material misstatement of fact
as of
the last day of the period covered by such annual report;
(3) Based
solely on the information delivered to the Company by the Master Servicer as
provided in the Agreement, (i) the distribution information required under
the
Agreement to be contained in the Trust Fund’s Distribution Date Statements and
(ii) the servicing information required to be provided by the Master Servicer
to
the Securities Administrator for inclusion in the Trust Fund’s Distribution Date
Statements, to the extent received by the Securities Administrator from the
Master Servicer in accordance with the Agreement, is included in such
Distribution Date Statements;
J-2-1
(4) The
Company is not certifying as to the accuracy, completeness or correctness of
the
information which it received from the Master Servicer and did not independently
verify or confirm the accuracy, completeness or correctness of the information
provided by the Master Servicer;
(5) I
am responsible for reviewing the activities performed by the Company as a person
“performing a servicing function” under the Agreement, and based on my knowledge
and the compliance review conducted in preparing the Servicing Assessment and
except as disclosed in the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement; and
(6) The
Servicing Assessment and Attestation Report required to be provided by the
Company pursuant to the Agreement, have been provided to the Depositor. Any
material instances of noncompliance described in such reports have been
disclosed to the Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date: ________________________________
By: ________________________________
Name:
Title:
J-2-2
EXHIBIT
K
FORM
OF
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
STATEMENT
The
assessment of compliance to be delivered by the [Master Servicer] [Securities
Administrator] [Custodian] shall address, at a minimum, the criteria identified
as below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
General
Servicing Considerations
|
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
||
K-1
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
||
K-2
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|||
K-3
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|||
K-4
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at least 30 calendar
days prior to these dates, or such other number of days specified
in the
transaction agreements.
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|||
K-5
|
Servicing
Criteria
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
|
|
Reference
|
Criteria
|
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|||
|
|
|
|||
K-6
EXHIBIT
L
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
To:
Deutsche
Bank National Trust Company
▇▇▇▇
▇▇▇▇
▇▇. ▇▇▇▇▇▇ Place,
Santa
Ana, California 92705
Attention:
Mortgage Custody - GS06O1
RE:
Master
Servicing and Trust Agreement, dated as of August 1, 2006 (the “Agreement”),
among GS Mortgage Securities Corp., as depositor (the “Depositor”), Deutsche
Bank National Trust Company, as trustee (in such capacity, the “Trustee”) and as
custodian (the “Custodian”)
and
▇▇▇▇▇ Fargo Bank, N.A., as master servicer (in such capacity, the “Master
Servicer”) and securities administrator (in such capacity, the “Securities
Administrator”)..
In
connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan
described below, for the reason indicated below. Further, any payments received
by the Servicer listed below in connection with this request for release have
been deposited into the Certificate Account for the benefit of the
Trust.
FROM:
Servicer:________________________________________________________,
City/State______________
SERVICER
LOAN #: ___________________________,
DEUTSCHE
BANK #_____________________________________,
Deal
Name: ____________________,
Mortgagor’s
Name: _______________________________________________
Original
loan amount: ________
Property
Address: ________________________________________________
Payment
amount: ____________
City/State/Zip:
__________________________________________________
Interest
rate: ________________
REASON
FOR REQUESTING DOCUMENTS (check one)
________1.
Loan paid in full
________2.
Loan in foreclosure
________3.
Loan being substituted
________4.
Loan being liquidated by company
________5.
Other (please explain)
_________________________________________________________
L-1
If
box 1
or 4 above is checked, and if all or part of the Custodial File was previously
released to us, then please provide a copy of the previous release request
(RR)
to us as well as any additional documents in your possession relating to the
above specified mortgage loan.
If
box 2
or 5 above is checked, then upon our return to you as custodian, all of the
documents for the above specified mortgage loan, please acknowledge your receipt
by signing in the space indicated below, and returning this form to
us.
COMPANY
NAME:____________________________________________
PHONE#__________________________________
AUTHORIZED
SIGNER:
_________________________________________________________________________
NAME(TYPED):_______________________________________________
DATE:____________________________
PHONE
#:_____________________________________________________
DATE:__________________________
PLEASE
MAIL DOCUMENTS BACK TO:
L-2
EXHIBIT
M
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
The
party to this Agreement entering into such Material Definitive
Agreement.
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
The
party to this Agreement requesting termination of a Material Definitive
Agreement.
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
|
|
▪
Sponsor
|
Depositor/Sponsor
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
M-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Master
Servicer and Securities Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Trust Agreement.
|
Securities
Administrator
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
(i)
Securities Administrator and (ii) Depositor with respect to any
information relating to the Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/
Servicer
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Depositor/Successor
Trustee
|
M-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor
and Securities Administrator
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
Parties (excluding Custodian and Trustee)
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Seller
for reporting/disclosing the financial statement or
exhibit
|
M-3
EXHIBIT
N
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer,
Master Servicer and Securities Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor
|
Sponsor/Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
(i)
Depositor (with respect to the Closing Date) and (ii) Master
Servicer
|
N-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
N-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable disclosure items on Form
8-K
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
N-3
EXHIBIT
O
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
(i)
As to agreements, Securities Administrator/Depositor and (ii) as
to
financial statements, Reporting Parties (as to themselves) (excluding
Custodian or Trustee)
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
O-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Master
Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor
|
Sponsor/Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor, Depositor or Issuing Entity is an affiliate of the
following parties, and (b) to the extent known and material, any
of the
following parties are affiliated with one another:
|
Sponsor/Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor, Depositor or Issuing Entity on the one hand, and (b) any
of the
following parties (or their affiliates) on the other hand, that exist
currently or within the past two years and that are material to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Depositor
as to (a)
|
O-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor, Depositor or Issuing Entity on the
one
hand, and (b) any of the following parties (or their affiliates)
on the
other hand, that exist currently or within the past two years and
that are
material:
|
Depositor/Sponsor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
O-3