EXHIBIT 4.6
Form of Pooling and Servicing Agreement
for Senior/Subordinate Certificates
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[GE CAPITAL MORTGAGE FUNDING CORPORATION,]
[Depositor]
GE CAPITAL MORTGAGE SERVICES, INC.,
[Depositor and] Servicer
and
---------------,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of _____
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REMIC Multi-Class Pass-Through Certificates,
Series _____
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[EXPLANATORY NOTE]
This Agreement is one of several forms (the "Forms") of Pooling and
Servicing Agreements that have been filed as an exhibit to the related
Registration Statement. The actual form of Pooling and Servicing Agreement that
will be used with respect to a particular series of Pass-Through Certificates
registered under the Registration Statement may include provisions substantially
similar to those included in one or more of the Forms, together with such other
provisions as may be appropriate to reflect the terms of the related series
described in a Prospectus Supplement. In addition, to the extent particular
provisions herein are not applicable to a series of Pass-Through Certificates,
such provisions will be omitted from the actual Pooling and Servicing Agreement
for such series.
The actual form of Pooling and Servicing Agreement that will be used with
respect to a particular series of Pass-Through Certificates will be filed by the
Depositor with the Commission as an exhibit to a Current Report on Form 8-K
within fifteen days after the issuance of the related series.
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................................................................1
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans; [Assignment of Loan Sale Agreement................35
Section 2.02. Acceptance by Trustee...........................................................38
Section 2.03. Representations and Warranties of the Company; Mortgage Loan Repurchase.........40
Section 2.04. Execution of Certificates.......................................................47
Section 2.05. Designations under the REMIC Provisions.........................................47
Section 2.05. The REMICs......................................................................47
Section 2.07. Designations under the REMIC Provisions.........................................48
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Company to Act as Servicer......................................................49
Section 3.02. Collection of Certain Mortgage Loan Payments; Mortgage Loan Payment
Record; Certificate Account.................................................53
Section 3.03. Collection of Taxes, Assessments and Other Items................................56
Section 3.04. Permitted Debits to the Mortgage Loan Payment Record............................56
Section 3.05. Maintenance of the Primary Insurance Policies...................................58
Section 3.06. Maintenance of Hazard Insurance.................................................58
Section 3.07. Assumption and Modification Agreements..........................................59
Section 3.08. Realization Upon Defaulted Mortgage Loans.......................................60
Section 3.09. Trustee to Cooperate; Release of Mortgage Files.................................63
Section 3.10. Servicing Compensation; Payment of Certain Expenses by the Servicer.............63
Section 3.11. Reports to the Trustee; Certificate Account Statements..........................64
Section 3.12. Annual Statement as to Compliance...............................................64
Section 3.13. Annual Independent Public Accountants' Servicing Report.........................64
Section 3.14. Access to Certain Documentation and Information Regarding the Mortgage Loans....65
Section 3.15. Maintenance of Certain Servicing Policies.......................................65
Section 3.16. Optional Purchase of Defaulted Mortgage Loans...................................66
ARTICLE IV
PAYMENTS AND STATEMENTS
Section 4.01. Distributions...................................................................66
Section 4.02. Method of Distribution..........................................................68
Section 4.03. Allocation of Losses............................................................69
Section 4.04. Monthly Advances; Purchases of Defaulted Mortgage Loans.........................71
Section 4.05. Statements to Certificateholders................................................72
Section 4.06. Servicer's Certificate..........................................................74
Section 4.07. Reports of Foreclosures and Abandonments of Mortgaged Property..................74
Section 4.08. Reduction of [Base] Servicing Fees by Compensating Interest Payments............74
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates................................................................74
Section 5.02. Registration of Transfer and Exchange of Certificates...........................76
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...............................81
Section 5.04. Persons Deemed Owners...........................................................82
Section 5.05. Access to List of Certificateholders' Names and Addresses.......................82
Section 5.06. Representation of Certain Certificateholders....................................82
Section 5.07. Determination of COFI...........................................................82
Section 5.08. Determination of LIBOR..........................................................83
ARTICLE VI
DEPOSITOR AND THE SERVICER
Section 6.01. Liability of the Depositor and the Servicer each................................85
Section 6.02. Merger or Consolidation of, or Assumption of the Obligations of, the Company....85
Section 6.03. Assignment......................................................................85
Section 6.04. Limitation on Liability of the Depositor, the Servicer and Others...............85
Section 6.05. The Company Not to Resign.......................................................86
ARTICLE VII
DEFAULT
Section 7.01. Events of Default...............................................................86
Section 7.02. Trustee to Act; Appointment of Successor........................................88
Section 7.03. Notification to Certificateholders..............................................89
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee...............................................................89
Section 8.02. Certain Matters Affecting the Trustee...........................................90
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans...........................91
Section 8.04. Trustee May Own Certificates....................................................92
Section 8.05. The Depositor to Pay Trustee's Fees and Expenses................................92
Section 8.06. Eligibility Requirements for Trustee............................................92
Section 8.07. Resignation or Removal of Trustee...............................................93
Section 8.08. Successor Trustee...............................................................93
Section 8.09. Merger or Consolidation of Trustee..............................................94
Section 8.10. Appointment of Co-Trustee or Separate Trustee...................................94
Section 8.11. Compliance with REMIC Provisions; Tax Returns...................................95
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Repurchase by the Company or Liquidation of All Mortgage Loans.96
Section 9.02. Additional Termination Requirements.............................................97
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment......................................................................98
Section 10.02. Recordation of Agreement.......................................................99
Section 10.03. Limitation on Rights of Certificateholders.....................................99
Section 10.04. Governing Law.................................................................100
Section 10.05. Notices.......................................................................100
Section 10.06. Notices to the Rating Agencies................................................100
Section 10.07. Severability of Provisions....................................................101
Section 10.08. Certificates Nonassessable and Fully Paid.....................................101
Exhibits
EXHIBIT A Forms of Certificates
EXHIBIT B Principal Balance Schedules
EXHIBIT C Mortgage Loans (including list of Cooperative Loans)
EXHIBIT D Form of Servicer's Certificate
EXHIBIT E Form of Transfer Certificate as to ERISA Matters for Definitive
ERISA-Restricted Certificates
EXHIBIT F Form of Residual Certificate Transferee Affidavit
EXHIBIT G Form of Residual Certificate Transferor Letter
EXHIBIT H Additional Servicer Compensation
EXHIBIT I Form of Investment Letter for Definitive Restricted Certificates
EXHIBIT J Form of Distribution Date Statement
EXHIBIT K Form of Special Servicing and Collateral Fund Agreement
EXHIBIT L Form of Lost Note Affidavit and Agreement
EXHIBIT M Schedule of Designated Loans
EXHIBIT N Loan Sale Agreement
EXHIBIT O Senior Principal Priorities
THIS POOLING AND SERVICING AGREEMENT, dated as of _____, between GE CAPITAL
MORTGAGE SERVICES, INC., a corporation organized and existing under the laws of
the State of New Jersey, [GE CAPITAL MORTGAGE FUNDING CORPORATION, a corporation
organized and existing under the laws of the State of Delaware,] and _____, as
Trustee.
W I T N E S S E T H T H A T :
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In consideration of the mutual agreements herein contained, GE Capital
Mortgage Services, Inc. and _____ agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
Accretion Directed Certificate: [ ].
Accretion Directed Component: [ ].
Accretion Termination Date: [ ].
Accrual Amount: As to any Class of Accrual Certificates and any
Accrual Component and each Distribution Date through the related Accretion
Termination Date, the sum of (x) any amount of Accrued Certificate Interest
allocable to such Class or Component pursuant to Section 4.01(a)(i) on such
Distribution Date and (y) any amount of Unpaid Class Interest Shortfall
allocable to such Class or Component pursuant to Section 4.01(a)(ii) on
such Distribution Date, to the extent that such amounts are distributed to
any Accretion Directed Certificates and any Accretion Directed Components
pursuant to Section 4.01(e). As to any Class of Accrual Certificates and
any Accrual Component and each Distribution Date after the related
Accretion Termination Date, zero.
Accrual Certificates: [ ].
Accrual Component: [ ].
Accrued Certificate Interest: As to any Distribution Date and any
Class of Certificates (other than any Class of Principal Only Certificates
and any Class of Certificates consisting of Specified Components), interest
accrued during the related Interest Accrual Period at the applicable
Certificate Interest Rate on the Class Certificate Principal Balance (or,
in the case of any Class of Notional Certificates, on the aggregate
Notional Principal Balance) thereof immediately prior to such Distribution
Date, calculated on the basis of a 360-day year consisting of twelve 30-day
months. As to any Distribution Date and any Specified Component (other than
any Principal Only Component), interest accrued during the related Interest
Accrual Period at the applicable Component Interest Rate on the Component
Principal Balance (or Notional Component Principal Balance) thereof
immediately prior to such Distribution Date, calculated on the basis of a
360-day year consisting of twelve 30-day months. As to any Distribution
Date and any Class of Certificates consisting of Specified Components, the
aggregate of Accrued Certificate Interest on such Specified Components for
such Distribution Date.
Accrued Certificate Interest on each Class of Certificates (other than
any Class of Principal Only Certificates and any Class of Certificates
consisting of Specified Components) and any Specified Component (other than
any Principal Only Component) shall be reduced by such Class's or Specified
Component's share of the amount of any Net Interest Shortfall and
Certificate Interest Losses for such Distribution Date. Any Net Interest
Shortfall and Certificate Interest Losses shall be allocated among (x) the
Classes of Certificates (other than any Class of Principal Only
Certificates and any Class of Certificates consisting of Specified
Components) and (y) the Specified Components (other than any Principal Only
Component) of any Component Certificate in proportion to the respective
amounts of Accrued Certificate Interest that would have resulted absent
such shortfall or losses.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Allocable Share: (a) As to any Distribution Date and amounts
distributable pursuant to clauses (i) and (iii) of the definition of Junior
Optimal Principal Amount, and as to each Class of Junior Certificates, the
fraction, expressed as a percentage, the numerator of which is the Class
Certificate Principal Balance of such Class and the denominator of which is
the aggregate Class Certificate Principal Balance of the Junior
Certificates.
(b) As to any Distribution Date and amounts distributable pursuant to
clauses (ii), (iv) and (v) of the definition of Junior Optimal Principal
Amount, and as to the Class M Certificates and each Class of Class B
Certificates for which the related Prepayment Distribution Trigger has been
satisfied on such Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Class Certificate Principal
Balance of such Class and the denominator of which is the aggregate Class
Certificate Principal Balance of all such Classes. As to any Distribution
Date and each Class of Class B Certificates for which the related
Prepayment Distribution Trigger has not been satisfied on such Distribution
Date, 0%.
Amortization Payment: As to any REO Mortgage Loan and any month, the
payment of principal and accrued interest due in such month in accordance
with the terms of the related Mortgage Note as contemplated by Section
3.08(b).
Amount Held for Future Distribution: As to each Distribution Date, the
total of all amounts credited to the Mortgage Loan Payment Record as of the
preceding Determination Date on account of (i) Principal Prepayments,
Insurance Proceeds and Liquidation Proceeds received subsequent to the
preceding Prepayment Period applicable to such receipts, and (ii) monthly
payments of principal and interest due subsequent to the preceding Due
Date.
Anniversary Determination Date: The Determination Date occurring in
_____ of each year that the Certificates are outstanding, commencing in
_____.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
the assignment of the related Proprietary Lease from the Mortgagor to the
originator of the Cooperative Loan.
Assumed Monthly Payment Reduction: As of any Anniversary Determination
Date and as to any Non-Primary Residence Loan remaining in the Mortgage
Pool whose original principal balance was 80% or greater of the Original
Value thereof, the excess of (i) the Monthly Payment thereof calculated on
the assumption that the Mortgage Rate thereon was equal to the weighted
average (by principal balance) of the Remittance Rates of all Outstanding
Mortgage Loans (the "Weighted Average Rate") as of such Anniversary
Determination Date over (ii) the Monthly Payment thereof calculated on the
assumption that the Remittance Rate thereon was equal to the Weighted
Average Rate less 1.25% per annum.
Available Funds: As to each Distribution Date, an amount equal to the
sum of (i) all amounts credited to the Mortgage Loan Payment Record
pursuant to Section 3.02 as of the preceding Determination Date, (ii) any
Monthly Advance and any Compensating Interest Payment for such Distribution
Date, (iii) the Purchase Price of any Defective Mortgage Loans and
Defaulted Mortgage Loans deposited in the Certificate Account on the
Business Day preceding such Distribution Date (including any amounts
deposited in the Certificate Account in connection with any substitution of
a Mortgage Loan as specified in Section 2.03(b)), and (iv) the purchase
price of any defaulted Mortgage Loan purchased under an agreement entered
into pursuant to Section 3.08(e) as of the end of the preceding Prepayment
Period less the sum of (x) the Amount Held for Future Distribution, (y) the
amount of any Unanticipated Recovery credited to the Mortgage Loan Payment
Record pursuant to clause (vi) of Section 3.02(b), and (z) amounts
permitted to be debited from the Mortgage Loan Payment Record pursuant to
clauses (i) through (vii) and (ix) of Section 3.04.
Bankruptcy Coverage Termination Date: The Distribution Date upon which
the Bankruptcy Loss Amount has been reduced to zero or a negative number
(or the Cross-Over Date, if earlier).
Bankruptcy Loss Amount: As of any Determination Date prior to the
first Anniversary Determination Date, the Bankruptcy Loss Amount shall
equal $ , as reduced by the aggregate amount of Deficient Valuations and
Debt Service Reductions since the Cut-off Date. As of any Determination
Date after the first Anniversary Determination Date, other than an
Anniversary Determination Date, the Bankruptcy Loss Amount shall equal the
Bankruptcy Loss Amount on the immediately preceding Anniversary
Determination Date as reduced by the aggregate amount of Deficient
Valuations and Debt Service Reductions since such preceding Anniversary
Determination Date. As of any Anniversary Determination Date, the
Bankruptcy Loss Amount shall equal the lesser of (x) the Bankruptcy Loss
Amount as of the preceding Determination Date as reduced by any Deficient
Valuations and Debt Service Reductions for the preceding Distribution Date,
and (y) the greater of (i) the Fitch Formula Amount for such Anniversary
Determination Date and (ii) the Formula Amount for such Anniversary
Determination Date.
The Bankruptcy Loss Amount may be further reduced by the Company
(including accelerating the manner in which such coverage is reduced)
provided that prior to any such reduction, the Company shall obtain written
confirmation from each Rating Agency that such reduction shall not
adversely affect the then-current rating assigned to the related Classes of
Certificates by such Rating Agency and shall provide a copy of such written
confirmation to the Trustee.
[Base] Servicing Fee: As to any Mortgage Loan and Distribution Date,
an amount equal to the product of (i) the Scheduled Principal Balance of
such Mortgage Loan as of the Due Date in the preceding calendar month and
(ii) the Base Servicing Fee Rate for such Mortgage Loan. The [Base]
Servicing Fee for any Distribution Date is subject to adjustment pursuant
to Section 3.08(d) (with respect to a Realized Loss) or the definition of
Interest Loss (with respect to the interest portion of a Debt Service
Reduction).
[Base] Servicing Fee Rate: As to any Mortgage Loan, the per annum rate
identified as such for such Mortgage Loan and set forth in the Mortgage
Loan Schedule.
BBA: The British Bankers' Association.
BIF: The Bank Insurance Fund of the FDIC, or its successor in
interest.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the
rules of such Depository). As of the Closing Date, each Class of
Certificates, other than the Class R [,Class RL] and Class Certificates,
constitutes a Class of Book-Entry Certificates.
Book-Entry Nominee: As defined in Section 5.02(b).
Business Day: Any day other than a Saturday or a Sunday, or a day on
which banking institutions in New York City or the city in which the
Corporate Trust Office is located are authorized or obligated by law or
executive order to be closed.
Buydown Funds: Funds contributed by the Mortgagor or another source in
order to reduce the interest payments required from the Mortgagor for a
specified period in specified amounts.
Buydown Mortgage Loan: Any Mortgage Loan as to which the Mortgagor
pays less than the full monthly payment specified in the Mortgage Note
during the Buydown Period and the difference between the amount paid by the
Mortgagor and the amount specified in the Mortgage Note is paid from the
related Buydown Funds.
Buydown Period: The period during which Buydown Funds are required to
be applied to the related Buydown Mortgage Loan.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The trust account or accounts created and
maintained with the Trustee pursuant to Section 3.02 and which must be an
Eligible Account.
Certificate Interest Loss: (i) On or prior to the Cross-Over Date, any
Interest Loss in respect of an Excess Loss and (ii) after the Cross-Over
Date, any Interest Loss, in each case to the extent such Interest Loss is
allocable to the Certificates in accordance with Section 3.08(d) (with
respect to a Realized Loss) or the definition of Interest Loss (with
respect to the interest portion of a Debt Service Reduction).
Certificate Interest Rate: With respect to any Class of Certificates,
other than any LIBOR Certificates, and as of any Distribution Date, the per
annum fixed rate specified in Section 5.01(b). With respect to any Class of
LIBOR Certificates, the per annum variable rate at any time at which
interest accrues on the Certificates of such Class, as determined pursuant
to Section 5.01(e).
Certificate Owner: With respect to any Book-Entry Certificate, the
person who is the beneficial owner thereof.
Certificate Principal Balance: As to any Certificate other than a
Notional Certificate, and as of any Distribution Date, the Initial
Certificate Principal Balance of such Certificate (plus, in the case of any
Accrual Certificate, its Percentage Interest of any related Accrual Amount
for each previous Distribution Date) less the sum of (i) all amounts
distributed with respect to such Certificate in reduction of the
Certificate Principal Balance thereof on previous Distribution Dates
pursuant to Section 4.01, (ii) any Realized Losses allocated to such
Certificate on previous Distribution Dates pursuant to Section 4.03(b) and
(c), and (iii) in the case of a Subordinate Certificate, such Certificate's
Percentage Interest of the Subordinate Certificate Writedown Amount
allocated to such Certificate on previous Distribution Dates. The Notional
Certificates are issued without Certificate Principal Balances.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the
purposes of giving any consent pursuant to this Agreement, a Certificate of
any Class to the extent that the Company or any affiliate is the
Certificate Owner or Holder thereof (except to the extent the Company or
any affiliate thereof shall be the Certificate Owner or Holder of all
Certificates of such Class), shall be deemed not to be outstanding and the
Percentage Interest (or Voting Rights) evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage
Interests (or Voting Rights) necessary to effect any such consent has been
obtained; provided, however, that in determining whether the Trustee shall
be protected in relying on such consent only the Certificates that the
Trustee knows to be so held shall be so disregarded.
Class: All Certificates bearing the same class designation or any
Lower-Tier Interest.
Class B Certificate: Any Class [B1, Class B2, Class B3, Class B4 or
Class B5] Certificate.
Class Certificate Principal Balance: As to any Class of Certificates,
other than any Class of Notional Certificates, and as of any date of
determination, the aggregate of the Certificate Principal Balances of all
Certificates of such Class. The Class Certificate Principal Balance of each
such Class of Certificates as of the Closing Date is specified in Section
5.01(b).
Class Interest Shortfall: As to any Distribution Date and any Class of
Certificates (other than any Class of Principal Only Certificates or any
Class consisting of Specified Components) or any Specified Component, any
amount by which the amount distributed to Holders of such Class of
Certificates or in respect of such Specified Component (or added to the
Class Certificate Principal Balance of any Class of Accrual Certificates or
to the Component Principal Balance of any Accrual Component constituting a
Specified Component) on such Distribution Date is less than the Accrued
Certificate Interest thereon or in respect thereof for such Distribution
Date. As to any Distribution Date and any Class of Certificates consisting
of Specified Components, the sum of the Class Interest Shortfalls for such
Components on such date.
Class PO Deferred Amount: As to any Distribution Date on or prior to
the Cross-Over Date, the aggregate of the applicable PO Percentage of the
principal portion of each Realized Loss, other than any Excess Loss, to be
allocated to the Class PO Certificates on such Distribution Date or
previously allocated to the Class PO Certificates and not yet paid to the
Holders of the Class PO Certificates pursuant to Section 4.01(a)(iv).
Closing Date: _____.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time, any successor statutes thereto, and applicable U.S.
Department of the Treasury temporary or final regulations promulgated
thereunder.
COFI: The monthly weighted average cost of funds for savings
institutions the home offices of which are located in Arizona, California,
or Nevada that are member institutions of the Eleventh Federal Home Loan
Bank District, as computed from statistics tabulated and published by the
Federal Home Loan Bank of San Francisco in its monthly Information
Bulletin.
COFI Certificates: [ ].
COFI Determination Date: As to each Interest Accrual Period for any
COFI Certificates, the last Business Day of the calendar month preceding
the commencement of such Interest Accrual Period.
Compensating Interest Payment: With respect to any Distribution Date,
an amount equal to the aggregate of the Interest Shortfalls described in
clauses (a) and (b) of the definition thereof with respect to such
Distribution Date; provided, however, that such amount shall not exceed the
lesser of (i) an amount equal to the product of (x) the Pool Scheduled
Principal Balance with respect to such Distribution Date and (y)
one-twelfth of 0.125%, and (ii) the aggregate of the [Base] Servicing Fees
that the Company would be entitled to retain on such Distribution Date
(less any portion thereof paid as servicing compensation to any Primary
Servicer) without giving effect to any Compensating Interest Payment.
Component: Any of the components of a Class of Component Certificates
having the designations and the initial Component Principal Balances as
follows:
Initial Component
Designation Principal Balance
[ ] [ ]
-------------- ------------------
Component Certificate: [ ].
Component Interest Rate: [ ].
Component Principal Balance: As of any Distribution Date, and with
respect to any Component, other than any Notional Component, the initial
Component Principal Balance thereof (as set forth, as applicable, in the
definition of Component) (plus, in the case of any Accrual Component, any
related Accrual Amount for each previous Distribution Date) less the sum of
(x) all amounts distributed in reduction thereof on previous Distribution
Dates pursuant to Section 4.01 and (y) the amount of all Realized Losses
allocated thereto pursuant to Section 4.03(d).
Confirmatory Mortgage Note: With respect to any Mortgage Loan, a note
or other evidence of indebtedness executed by the Mortgagor confirming its
obligation under the note or other evidence of indebtedness previously
executed by the Mortgagor upon the origination of the related Mortgage
Loan.
Cooperative: A private, cooperative housing corporation organized in
accordance with applicable state laws which owns or leases land and all or
part of a building or buildings located in the relevant state, including
apartments, spaces used for commercial purposes and common areas therein
and whose board of directors authorizes, among other things, the sale of
Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of one or more Proprietary Leases.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate(s),
(iii) an assignment of the Proprietary Lease(s), (iv) financing statements
and (v) a stock power (or other similar instrument), and in addition
thereto, a recognition agreement between the Cooperative and the originator
of the Cooperative Loan, each of which was transferred and assigned to the
Trustee pursuant to Section 2.01 and are from time to time held as part of
the Trust Fund. The Mortgage Loans identified in Exhibit C hereto are
Cooperative Loans.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate(s) or other instrument evidencing the related Cooperative
Stock.
Corporate Trust Office: The principal office of the Trustee at which
at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this instrument is located at
_____.
[Corresponding Class: With respect to any Class of Lower-Tier
Interests, the Class or Classes of Certificates, and with respect to any
Class of Certificates, the Class or Classes of Lower-Tier Interests,
appearing opposite such Class of Lower-Tier Interests or Certificates in
the table included in Section 2.05(a).]
[Corresponding Component: With respect to any Class of Lower-Tier
Interests, the Component or Components of a Class of Certificates, and with
respect to any Component or Components of a Class of Certificates, the
Class or Classes of Lower-Tier Interests, appearing opposite such Class of
Lower-Tier Interests or Components in the table included in Section
2.05(a).]
Cross-Over Date: The first Distribution Date on which the aggregate
Class Certificate Principal Balance of the Junior Certificates has been
reduced to zero (giving effect to all distributions on such Distribution
Date).
Cut-off Date: _____.
Debt Service Reduction: As to any Mortgage Loan and any Determination
Date, the excess of (a) the then current Monthly Payment for such Mortgage
Loan over (b) the amount of the monthly payment of principal and interest
required to be paid by the Mortgagor as established by a court of competent
jurisdiction as a result of a proceeding initiated by or against the
related Mortgagor under the Bankruptcy Code, as amended from time to time
(11 U.S.C.).
Defaulted Mortgage Loan: With respect to any Determination Date, a
Mortgage Loan as to which the related Mortgagor has failed to make
unexcused payment in full of a total of three or more consecutive
installments of principal and interest, and as to which such delinquent
installments have not been paid, as of the close of business on the last
Business Day of the month next preceding the month of such Determination
Date.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
purchased by the Company (or which the Company may replace with a
substitute Mortgage Loan) pursuant to Section 2.02 or 2.03(a).
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (a) the then outstanding indebtedness under such
Mortgage Loan over (b) the valuation by a court of competent jurisdiction
of the related Mortgaged Property as a result of a proceeding initiated by
or against the related Mortgagor under the Bankruptcy Code, as amended from
time to time (11 U.S.C.), pursuant to which such Mortgagor retained such
Mortgaged Property.
Definitive Certificate: Any Certificate, other than a Book-Entry
Certificate, issued in definitive, fully registered form.
Definitive Restricted Junior Certificate: Any Restricted Junior
Certificate that is in the form of a Definitive Certificate.
Depositor: [GECMSI] [GE Capital Mortgage Funding Corporation, a
Delaware corporation, and its successors.]
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York, as amended, or any
successor provisions thereto.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for which, from time to time, the Depository
effects book-entry transfers and pledges of securities deposited with such
Depository.
Designated Loan Closing Documents: With respect to any Designated
Loan, a Lost Note Affidavit substantially in the form of Exhibit L, and an
assignment of the related Mortgage to the Trustee in recordable form
(except for the omission therein of recording information concerning such
Mortgage).
Designated Loans: The Mortgage Loans, if any, listed on Exhibit M
hereto.
Designated Telerate Page: The Dow ▇▇▇▇▇ Telerate Service page 3750 (or
such other page as may replace page 3750 on that service or such other
service as may be nominated by the BBA for the purpose of displaying the
Interest Settlement Rates).
Determination Date: With respect to any Distribution Date, the fifth
Business Day prior thereto.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate
less than _____% per annum.
Disqualified Organization: Any of the following: (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing (including but not limited to state
pension organizations); (ii) a foreign government, International
Organization or any agency or instrumentality of either of the foregoing;
(iii) an organization (except certain farmers' cooperatives described in
Code section 521) which is exempt from tax imposed by Chapter 1 of the Code
(including the tax imposed by section 511 of the Code on unrelated business
taxable income); and (iv) a rural electric and telephone cooperative
described in Code section 1381(a)(2)(C). The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
section 7701 or successor provisions. A corporation will not be treated as
an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject
to tax and a majority of its board of directors is not selected by such
governmental unit.
Distribution Date: The 25th day of each calendar month after the month
of initial issuance of the Certificates, or, if such 25th day is not a
Business Day, the next succeeding Business Day.
Distribution Date Statement: The statement referred to in Section
4.05(a).
Document File: As defined in Section 2.01.
Due Date: The first day of the month of the related Distribution Date.
Eligible Account: An account that is either (i) maintained with a
depository institution the debt obligations of which have been rated by
each Rating Agency in one of its two highest long-term rating categories
and has been assigned by S&P its highest short-term rating, (ii) an account
or accounts the deposits in which are fully insured by either the BIF or
the SAIF, (iii) an account or accounts, in a depository institution in
which such accounts are insured by the BIF or the SAIF (to the limits
established by the FDIC), the uninsured deposits in which accounts are
either invested in Permitted Investments or are otherwise secured to the
extent required by the Rating Agencies such that, as evidenced by an
Opinion of Counsel delivered to the Trustee, the Certificateholders have a
claim with respect to the funds in such account or a perfected first
security interest against any collateral (which shall be limited to
Permitted Investments) securing such funds that is superior to claims of
any other depositors or creditors of the depository institution with which
such account is maintained, (iv) a trust account maintained with the
corporate trust department of a federal or state chartered depository
institution or of a trust company with trust powers and acting in its
fiduciary capacity for the benefit of the Trustee hereunder or (v) such
account as will not cause either Rating Agency to downgrade or withdraw its
then-current rating assigned to the Certificates, as evidenced in writing
by the Rating Agencies.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Restricted Certificate: Any Junior Certificate.
Event of Default: An event described in Section 7.01.
Excess Bankruptcy Loss: Any Deficient Valuation or Debt Service
Reduction, or portion thereof, (i) occurring after the Bankruptcy Coverage
Termination Date or (ii) if on such date, in excess of the then-applicable
Bankruptcy Loss Amount.
Excess Fraud Loss: Any Fraud Loss, or portion thereof, (i) occurring
after the Fraud Coverage Termination Date or (ii) if on such date, in
excess of the then-applicable Fraud Loss Amount.
Excess Loss: Any Excess Bankruptcy Loss, Excess Fraud Loss or Excess
Special Hazard Loss.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion
thereof, (i) occurring after the Special Hazard Termination Date or (ii) if
on such date, in excess of the then-applicable Special Hazard Loss Amount.
FDIC: The Federal Deposit Insurance Corporation, or its successor in
interest.
FHLMC: The Federal Home Loan Mortgage Corporation or its successor in
interest.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Fitch: Fitch IBCA, Inc. and its successors.
Fitch Formula Amount: As to each Anniversary Determination Date, the
greater of (i) $50,000 and (ii) the product of (x) the greatest Assumed
Monthly Payment Reduction for any Non-Primary Residence Loan whose original
principal balance was 80% or greater of the Original Value thereof, (y) the
weighted average remaining term to maturity (expressed in months) of all
the Non-Primary Residence Loans remaining in the Mortgage Pool as of such
Anniversary Determination Date, and (z) the sum of (A) one plus (B) the
number of all remaining Non-Primary Residence Loans divided by the total
number of Outstanding Mortgage Loans as of such Anniversary Determination
Date.
FNMA: The Federal National Mortgage Association or its successor in
interest.
Formula Amount: As to each Anniversary Determination Date, the greater
of (i) $100,000 and (ii) the product of (x) 0.06% and (y) the Scheduled
Principal Balance of each Mortgage Loan remaining in the Mortgage Pool
whose original principal balance was 75% or greater of the Original Value
thereof.
Fraud Coverage Termination Date: The Distribution Date upon which the
related Fraud Loss Amount has been reduced to zero or a negative number (or
the Cross-Over Date, if earlier).
Fraud Loss: Any Realized Loss attributable to fraud in the origination
of the related Mortgage Loan.
Fraud Loss Amount: As of any Distribution Date after the Cut-off Date,
(x) prior to the first anniversary of the Cut-off Date, an amount equal to
$_____ minus the aggregate amount of Fraud Losses that would have been
allocated to the Junior Certificates in accordance with Section 4.03 in the
absence of the Loss Allocation Limitation since the Cut-off Date, and (y)
from the first to the fifth anniversary of the Cut-off Date, an amount
equal to (1) the lesser of (a) the Fraud Loss Amount as of the most recent
anniversary of the Cut-off Date and (b) 1% (from the first to but excluding
the third anniversaries of the Cut-off Date) or 0.5% (from and including
the third to but excluding the fifth anniversaries of the Cut-off Date) of
the aggregate outstanding principal balance of all of the Mortgage Loans as
of the most recent anniversary of the Cut-off Date minus (2) the Fraud
Losses that would have been allocated to the Junior Certificates in
accordance with Section 4.03 in the absence of the Loss Allocation
Limitation since the most recent anniversary of the Cut-off Date. On or
after the fifth anniversary of the Cut-off Date the Fraud Loss Amount shall
be zero.
GECC: General Electric Capital Corporation, a corporation incorporated
under the provisions of the New York Banking Law applicable to investment
companies, or any corporation into which GECC may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which GECC shall be a party, or any corporation succeeding
to the business of GECC.
GECMSI: GE Capital Mortgage Services, Inc., a corporation organized
and existing under the laws of the State of New Jersey, or its successor in
interest.
Group I Final Distribution Date: The Distribution Date on which the
aggregate Certificate Principal Balance of the Group I Senior Certificates
is reduced to zero.
[Group I Senior Certificate: Any Class _____, or Class R [or Class RL]
Certificate.]
Group II Senior Certificate: Any Class _____ Certificate.]
[Group II Senior Percentage: With respect to any Distribution Date,
the percentage (carried to six decimal places) obtained by dividing (x) the
aggregate Certificate Principal Balance of the Group II Senior Certificates
immediately preceding such Distribution Date, by (y) the aggregate
Certificate Principal Balance of all the Certificates (other than the Class
PO Certificates) immediately preceding such Distribution Date.]
[Group II Senior Prepayment Distribution Percentage: 0% through the
Distribution Date in _____; 30% thereafter through the Distribution Date in
_____; 40% thereafter through the Distribution Date in _____; 60%
thereafter through the Distribution Date in _____; 80% thereafter through
the Distribution Date in _____; and 100% thereafter.]
[Group II Senior Principal Distribution Amount: With respect to any
Distribution Date, the sum of (a) the total of the amounts described in
clauses (i) and (iii) of the definition of Senior Optimal Principal Amount
(without application of the Senior Percentage or the Senior Prepayment
Percentage) for such date multiplied by the Group II Senior Percentage for
such date and (b) the total of the amounts described in clauses (ii), (iv)
and (v) of the definition of Senior Optimal Principal Amount (without
application of the Senior Prepayment Percentage) for such date multiplied
by the product of (x) the Group II Senior Percentage for such date and (y)
the Group II Senior Prepayment Distribution Percentage for such date;
provided, however, that (i) on the Group I Final Distribution Date, the
Group II Senior Principal Distribution Amount will be increased by any
portion of the Senior Optimal Principal Amount remaining after
distributions of principal have been made on the Group I Senior
Certificates and (ii) following the Group I Final Distribution Date, the
Group II Senior Principal Distribution Amount will equal the Senior Optimal
Principal Amount.]
Initial Certificate Principal Balance: With respect to any
Certificate, other than a Notional Certificate, the Certificate Principal
Balance of such Certificate or any predecessor Certificate on the Closing
Date.
[Initial LIBOR Rate: _____%.]
Insurance Proceeds: Proceeds paid pursuant to the Primary Insurance
Policies, if any, and amounts paid by any insurer pursuant to any other
insurance policy covering a Mortgage Loan.
Insured Expenses: Expenses covered by the Primary Insurance Policies,
if any, or any other insurance policy or policies applicable to the
Mortgage Loans.
Interest Accrual Period: With respect to any Distribution Date and any
Class of Certificates [(other than the LIBOR Certificates] and any Class of
Principal Only Certificates) or Component, the one-month period ending on
the last day of the month preceding the month in which such Distribution
Date occurs. [With respect to any Distribution Date and the LIBOR
Certificates, the one-month period commencing on the 25th day of the
preceding month and ending on the 24th day of the month in which such
Distribution Date occurs.] [The Interest Accrual Period for each Class of
Lower-Tier Interests shall be the Interest Accrual Period for such Class of
Lower-Tier Interest's Corresponding Class (or Classes).]
Interest Loss: (i) With respect to any Realized Loss, the excess of
accrued and unpaid interest due on the related Mortgage Loan over the
amount allocated to interest thereon in accordance with Section 3.08(d),
and (ii) with respect to any Debt Service Reduction and any calendar month,
the reduction in the amount of interest due on the related Mortgage Loan
during such month as a result of the relevant bankruptcy proceeding.
The amount of any Interest Loss described in clause (i) of the
preceding paragraph will be allocated among the Base Servicing Fee, the
Supplemental Servicing Fee and the Certificates in accordance with Section
3.08(d). [The amount of any Interest Loss described in clause (ii) of the
preceding paragraph will be allocated among the Base Servicing Fee, the
Supplemental Servicing Fee and the Certificates in proportion to the amount
of interest that would have been allocated to the Base Servicing Fee at the
Base Servicing Fee Rate, the Supplemental Servicing Fee at the Supplemental
Servicing Fee Rate and interest at the Remittance Rate, respectively, in
the absence of the Debt Service Reduction.]
Interest Settlement Rate: With respect to any Interest Accrual Period,
the rate (expressed as a percentage per annum) for one-month U.S. Dollar
deposits reported by the BBA at 11:00 a.m. London time on the related LIBOR
Determination Date and as it appears on the Designated Telerate Page.
Interest Shortfall: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the subject of
a Voluntary Principal Prepayment or constitutes a Relief Act Mortgage Loan,
an amount determined as follows:
(A) partial principal prepayments: one month's interest at the
applicable Net Mortgage Rate on the amount of such prepayment;
(B) principal prepayments in full received on or after the
sixteenth day of the month preceding the month of such Distribution
Date (or, in the case of the first Distribution Date, on or after the
Cut-off Date) but on or before the last day of the month preceding the
month of such Distribution Date, the difference between (i) one
month's interest at the applicable Net Mortgage Rate on the Scheduled
Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month of
such prepayment (adjusted to the applicable Net Mortgage Rate)
received at the time of such prepayment;
(C) principal prepayments in full received by the Company (or of
which the Company receives notice, in the case of a Mortgage Loan
serviced by a Primary Servicer) on or after the first day but on or
before the fifteenth day of the month of such Distribution Date: none;
and
(D) Relief Act Mortgage Loans: As to any Relief Act Mortgage
Loan, the excess of (i) 30 days' interest (or, in the case of a
Principal Prepayment in full, interest to the date of prepayment) on
the Scheduled Principal Balance thereof (or, in the case of a
Principal Prepayment in part, on the amount so prepaid) at the related
Net Mortgage Rate over (ii) 30 days' interest (or, in the case of a
Principal Prepayment in full, interest to the date of prepayment) on
such Scheduled Principal Balance (or, in the case of a Principal
Prepayment in part, on the amount so prepaid) at the Net Mortgage Rate
required to be paid by the Mortgagor as limited by application of the
Relief Act.
[For purposes of the definitions of Net Interest Shortfall and
Supplemental Servicing Fee, the amount of any Interest Shortfall shall
be allocated between the Certificates and the Supplemental Servicing
Fee in proportion to the amount of interest that would have been
allocated to the Certificates (at the Remittance Rate) and the
Supplemental Servicing Fee (at the Supplemental Servicing Fee Rate),
respectively, in the absence of such Interest Shortfall.]
Junior Certificate: Any Class [M or Class B] Certificate.
Junior Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of the following (but in no event greater than the
aggregate Certificate Principal Balance of the Junior Certificates
immediately prior to such Distribution Date):
(i) the Junior Percentage of the applicable Non-PO Percentage of the
principal portion of each Monthly Payment due on the related Due Date on
each Outstanding Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time applicable thereto (after adjustment for
previous Principal Prepayments and the principal portion of Debt Service
Reductions subsequent to the Bankruptcy Coverage Termination Date but
before any adjustment to such amortization schedule by reason of any
bankruptcy (other than as aforesaid) or similar proceeding or any
moratorium or similar waiver or grace period);
(ii) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of all principal prepayments in part received during the related
Prepayment Period, and 100% of any Senior Optimal Principal Amount not
distributed to the Senior Certificates on such Distribution Date, together
with the Junior Prepayment Percentage of the applicable Non-PO Percentage
of the Scheduled Principal Balance of each Mortgage Loan which was the
subject of a Voluntary Principal Prepayment in full during the related
Prepayment Period;
(iii) the excess, if any, of (x) the applicable Non-PO Percentage of
the sum of (A) all Net Liquidation Proceeds allocable to principal received
during the related Prepayment Period (other than in respect of Mortgage
Loans described in clause (B)) and (B) the principal balance of each
Mortgage Loan that was purchased by an insurer from the Trustee during the
related Prepayment Period pursuant to the related Primary Insurance Policy,
over (y) the amount distributable pursuant to clause (iii) of the
definition of Senior Optimal Principal Amount on such Distribution Date;
(iv) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of the Scheduled Principal Balance of each Mortgage Loan which
was purchased on such Distribution Date pursuant to Section 2.02, 2.03(a)
or 3.16; and
(v) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of the Substitution Amount for any Mortgage Loan substituted
during the month of such Distribution Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment in
full with respect to a Mortgage Loan serviced by a Primary Servicer shall
be deemed to have been received when the Company, as servicer, receives
notice thereof.
After the Class Certificate Principal Balances of the Junior
Certificates have been reduced to zero, the Junior Optimal Principal Amount
shall be zero.
Junior Percentage: As to any Distribution Date, the excess of 100%
over the Senior Percentage for such Distribution Date.
Junior Prepayment Percentage: As to any Distribution Date, the excess
of 100% over the Senior Prepayment Percentage for such Distribution Date,
except that (i) after the aggregate Certificate Principal Balance of the
Senior Certificates other than the Class PO Certificates has been reduced
to zero, the Junior Prepayment Percentage shall be 100%, and (ii) after the
Cross-Over Date, the Junior Prepayment Percentage shall be zero.
Latest Possible Maturity Date: _____.
LIBOR: With respect to any Interest Accrual Period, the per annum rate
determined, pursuant to Section 5.08, on the basis of the Interest
Settlement Rate or as otherwise provided in such Section.
LIBOR Certificate: [Any Class _____ Certificate.]
LIBOR Determination Date: The second London Banking Day immediately
preceding the commencement of each Interest Accrual Period for any LIBOR
Certificates.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Servicer has determined that all amounts which it expects to recover on
behalf of the Trust Fund from or on account of such Mortgage Loan have been
recovered, including any Mortgage Loan with respect to which the Servicer
determines not to foreclose upon the related Mortgaged Property based on
its belief that such Mortgaged Property may be contaminated with or
affected by hazardous or toxic wastes, materials or substances.
Liquidation Expenses: Expenses which are incurred by the Servicer in
connection with the liquidation of any defaulted Mortgage Loan and not
recovered by the Servicer under any Primary Insurance Policy for reasons
other than the Servicer's failure to comply with Section 3.05, such
expenses including, without limitation, legal fees and expenses, and,
regardless of when incurred, any unreimbursed amount expended by the
Servicer pursuant to Section 3.03 or Section 3.06 respecting the related
Mortgage Loan and any related and unreimbursed Property Protection
Expenses.
Liquidation Proceeds: Cash (other than Insurance Proceeds) received in
connection with the liquidation of any defaulted Mortgage Loan whether
through judicial foreclosure or otherwise.
[Loan Sale Agreement: the Loan Sale Agreement, dated as of the date
hereof, between the Depositor and GECMSI, a copy of which is attached
hereto as Exhibit N.]
Loan-to-Value Ratio: With respect to each Mortgage Loan, the original
principal amount of such Mortgage Loan, divided by the Original Value of
the related Mortgaged Property.
London Banking Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England.
Loss Allocation Limitation: As defined in Section 4.03(g).
[Lower-Tier Balance: As to each Class of Lower-Tier Interests and any
Distribution Date, the initial Lower-Tier Balance thereof set forth or
specified in Section 2.05(a) (plus, in the case of any Class of Lower-Tier
Interests as to which the Corresponding Class is a Class of Accrual
Certificates or includes one or more Accrual Components, an amount equal to
the Accrual Amount for such Corresponding Class or each such Accrual
Component for each previous Distribution Date) less the sum of (i) the
aggregate amount of principal allocable thereto on previous Distribution
Dates pursuant to Section 2.05(c) and (ii) any Realized Losses or
Subordinate Certificate Writedown Amount allocated thereto on previous
Distribution Dates.]
[Lower-Tier Interest: Any one of the Classes of regular interests in
the Lower-Tier REMIC described as such in Section 2.05(a).]
[Lower-Tier Interest Rate: As to each Lower-Tier Interest, the
applicable "Lower-Tier Interest Rate," if any, set forth in Section
2.05(a).]
[Lower-Tier REMIC: One of the two separate REMICs comprising the Trust
Fund, the assets of which consist of the assets and rights specified in
clauses (i) through (viii) and (x) of the definition of the term Trust
Fund.]
Monthly Advance: With respect to any Distribution Date, the aggregate
of the advances required to be made by the Servicer pursuant to Section
4.04(a) (or by the Trustee pursuant to Section 4.04(b)) on such
Distribution Date, the amount of any such Monthly Advance being equal to
(a) the aggregate of payments of principal and interest (adjusted to the
related Remittance Rate) on the Mortgage Loans that were due on the related
Due Date, without regard to any arrangements entered into by the Servicer
with the related Mortgagors pursuant to Section 3.02(a)(ii), and delinquent
as of the close of business on the Business Day next preceding the related
Determination Date, less (b) the amount of any such payments which the
Servicer or the Trustee, as applicable, in its reasonable judgment believes
will not be ultimately recoverable by it either out of late payments by the
Mortgagor, Net Liquidation Proceeds, Insurance Proceeds, REO Proceeds or
otherwise. With respect to any Mortgage Loan, the portion of any such
advance or advances made with respect thereto.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan for
any month allocable to principal or interest on such Mortgage Loan.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
Mortgage: The mortgage or deed of trust creating a first lien on a fee
simple interest or leasehold estate in real property securing a Mortgage
Note.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents
required to be added to such documents pursuant to this Agreement.
Mortgage Loan Payment Record: The record maintained by the Company
pursuant to Section 3.02(b).
Mortgage Loan Schedule: As of any date of determination, the schedule
of Mortgage Loans included in the Trust Fund. The initial schedule of
Mortgage Loans as of the Cut-off Date is attached hereto as Exhibit C.
Mortgage Loans: As of any date of determination, each of the mortgage
loans identified on the Mortgage Loan Schedule (as amended pursuant to
Section 2.03(b)) delivered and assigned to the Trustee pursuant to Section
2.01 or 2.03(b), and not theretofore released from the Trust Fund by the
Trustee.
Mortgage Loan Seller: GECMSI.
Mortgage Note: With respect to any Mortgage Loan, the note or other
evidence of indebtedness (which may consist of a Confirmatory Mortgage
Note) evidencing the indebtedness of a Mortgagor under such Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage Rate: The per annum rate of interest borne by a Mortgage Loan
as set forth in the related Mortgage Note.
Mortgaged Property: The underlying real property securing the Mortgage
Loan, or with respect to a Cooperative Loan, the related Proprietary Lease
and Cooperative Stock.
Mortgagor: With respect to any Mortgage Loan, each obligor on the
related Mortgage Note.
Net Interest Shortfall: With respect to any Distribution Date, the
excess, if any, of the aggregate Interest Shortfalls allocable to the
Certificates (as determined in accordance with the definition of Interest
Shortfall) for such Distribution Date over any Compensating Interest
Payment for such date.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, the sum
of (i) any Liquidation Proceeds therefor less the related Liquidation
Expenses, and (ii) any Insurance Proceeds therefor, other than any such
Insurance Proceeds applied to the restoration of the related Mortgaged
Property.
Net Mortgage Rate: With respect to any Mortgage Loan, the related
Mortgage Rate less the applicable Base Servicing Fee Rate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Credit Loss: Any Fraud Loss, Special Hazard Loss or Deficient
Valuation.
Non-Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate
greater than or equal to ______% per annum.
Non-permitted Foreign Holder: As defined in Section 5.02(b).
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage
Rate of such Discount Mortgage Loan and the denominator of which is _____%.
As to any Non-Discount Mortgage Loan, 100%.
Non-Primary Residence Loan: Any Mortgage Loan secured by a Mortgaged
Property that is (on the basis of representations made by the Mortgagors at
origination) a second home or investor-owned property.
Nonrecoverable Advance: All or any portion of any Monthly Advance or
Monthly Advances previously made by the Servicer (or the Trustee) which, in
the reasonable judgment of the Servicer (or, as applicable, the Trustee)
will not be ultimately recoverable from related Net Liquidation Proceeds,
Insurance Proceeds, REO Proceeds or otherwise. The determination by the
Company that it has made a Nonrecoverable Advance or that any advance, if
made, would constitute a Nonrecoverable Advance, shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Trustee and
detailing the reasons for such determination.
Non-U.S. Person: As defined in Section 4.02(c).
Notional Certificate: [ ].
Notional Component: [ ].
Notional Component Balance: [ ].
Notional Principal Balance: As to any Distribution Date and the Class
_____ Certificates, the Class Certificate Principal Balance of the Class
_____ Certificates for such Distribution Date. As to any Distribution Date
and any Notional Certificate, such Notional Certificate's Percentage
Interest of the aggregate Notional Principal Balance of the Notional
Certificates of the same Class for such Distribution Date.
Officer's Certificate: A certificate signed by the President, a Senior
Vice President or a Vice President of the Servicer or the Depositor, as
applicable, and delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Servicer or the Depositor; provided, however, that any Opinion of
Counsel with respect to the interpretation or application of the REMIC
Provisions or the status of an account as an Eligible Account shall be the
opinion of independent counsel satisfactory to the Trustee.
Original Subordinate Principal Balance: As set forth in the definition
of Senior Prepayment Percentage.
Original Value: The value of the property underlying a Mortgage Loan
based, in the case of the purchase of the underlying Mortgaged Property, on
the lower of an appraisal satisfactory to the Mortgage Loan Seller or the
sales price of such property or, in the case of a refinancing, on an
appraisal satisfactory to the Mortgage Loan Seller.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage
Loan which, prior to such Due Date, was not the subject of a Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and was not
purchased pursuant to Section 2.02, 2.03(a) or 3.16 or replaced pursuant to
Section 2.03(b).
Outstanding Non-Discount Mortgage Loan: Any Outstanding Mortgage Loan
that is a Non-Discount Mortgage Loan.
PAC Balance: As to any Distribution Date and any Class of PAC
Certificates and any PAC Component, the balance designated as such for such
Distribution Date and such Class or Component as set forth in the Principal
Balance Schedules.
PAC Certificate: [ ].
PAC Component: [ ].
Pay-out Rate: With respect to any Class of Certificates (other than
any Class of Principal Only Certificates) and any Distribution Date, the
rate at which interest is distributed on such Class on such Distribution
Date and which is equal to a fraction (expressed as an annualized
percentage) the numerator of which is the Accrued Certificate Interest for
such Class and Distribution Date, and the denominator of which is the Class
Certificate Principal Balance (or, in the case of the Notional
Certificates, the Notional Principal Balance) of such Class immediately
prior to such Distribution Date.
Percentage Interest: With respect to any Certificate, the percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by Certificates of the same Class as such Certificate. With
respect to any Certificate, the Percentage Interest evidenced thereby shall
equal the Initial Certificate Principal Balance (or, in the case of a
Notional Certificate, the initial Notional Principal Balance) thereof
divided by the aggregate Initial Certificate Principal Balance (or, in the
case of a Notional Certificate, the aggregate initial Notional Principal
Balance) of all Certificates of the same Class.
Permitted Investments: One or more of the following; provided,
however, that no such Permitted Investment may mature later than the
Business Day preceding the Distribution Date after such investment except
as otherwise provided in Section 3.02(e) hereof, provided, further, that
such investments qualify as "cash flow investments" as defined in section
860G(a)(6) of the Code:
(i) obligations of, or guaranteed as to timely receipt of principal
and interest by, the United States or any agency or instrumentality thereof
when such obligations are backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i)
provided that the unsecured obligations of the party agreeing to repurchase
such obligations are at the time rated by each Rating Agency in the highest
long-term rating category;
(iii) federal funds, certificates of deposit, time deposits and
banker's acceptances, of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state provided that
the debt obligations of such depository institution or trust company at the
date of acquisition thereof have been rated by each Rating Agency in the
highest long-term rating category;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof which on the date of acquisition
has the highest short term rating of each Rating Agency; and
(v) other obligations or securities that are acceptable to each Rating
Agency as a Permitted Investment hereunder and will not, as evidenced in
writing, result in a reduction or withdrawal in the then current rating of
the Certificates.
Notwithstanding the foregoing, Permitted Investments shall not include
"stripped securities" and investments which contractually may return less
than the purchase price therefor.
Person: Any legal person, including any individual, corporation,
partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
Plan: Any Person which is an employee benefit plan subject to ERISA or
a plan subject to section 4975 of the Code.
PO Percentage: As to any Discount Mortgage Loan, a fraction (expressed
as a percentage), the numerator of which is the excess of _____% over the
Net Mortgage Rate of such Discount Mortgage Loan and the denominator of
which is _____%. As to any Non-Discount Mortgage Loan, 0%.
PO Principal Distribution Amount: As to any Distribution Date, an
amount equal to the sum of the applicable PO Percentage of:
(i) the principal portion of each Monthly Payment due on the related
Due Date on each Outstanding Mortgage Loan as of such Due Date as specified
in the amortization schedule at the time applicable thereto (after
adjustments for previous Principal Prepayments and the principal portion of
Debt Service Reductions subsequent to the Bankruptcy Coverage Termination
Date but before any adjustment to such amortization schedule by reason of
any bankruptcy (except as aforesaid) or similar proceeding or any
moratorium or similar waiver or grace period);
(ii) all principal prepayments in part received during the related
Prepayment Period, together with the Scheduled Principal Balance (as
reduced by any Deficient Valuation occurring on or prior to the Bankruptcy
Coverage Termination Date) of each Mortgage Loan which was the subject of a
Voluntary Principal Prepayment in full during the related Prepayment
Period;
(iii) the sum of (A) all Net Liquidation Proceeds allocable to
principal received in respect of each Mortgage Loan that became a
Liquidated Mortgage Loan during the related Prepayment Period (other than
Mortgage Loans described in clause (B)) and (B) the principal balance of
each Mortgage Loan purchased by an insurer from the Trustee pursuant to the
related Primary Insurance Policy, in each case during the related
Prepayment Period;
(iv) the Scheduled Principal Balance (as reduced by any Deficient
Valuation occurring on or prior to the Bankruptcy Coverage Termination
Date) of each Mortgage Loan which was purchased on such Distribution Date
pursuant to Section 2.02, 2.03(a) or 3.16; and
(v) the Substitution Amount for any Mortgage Loan substituted during
the month of such Distribution Date; for purposes of this clause (v), the
definition of "Substitution Amount" shall be modified to reduce the
Scheduled Principal Balance of the Mortgage Loan that is substituted for by
any Deficient Valuation occurring on or prior to the Bankruptcy Coverage
Termination Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment in
full with respect to a Mortgage Loan serviced by a Primary Servicer shall
be deemed to have been received when the Company, as servicer, receives
notice thereof.
Pool Scheduled Principal Balance: With respect to any Distribution
Date, the aggregate Scheduled Principal Balance of all the Mortgage Loans
that were Outstanding Mortgage Loans on the Due Date in the month next
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, the Cut-off Date; or, if so specified, such other date).
Prepayment Assumption: The assumed fixed schedule of prepayments on a
pool of new mortgage loans with such schedule given as a monthly sequence
of prepayment rates, expressed as annualized percent values. These values
start at 0.2% per year in the first month, increase by 0.2% per year in
each succeeding month until month 30, ending at 6.0% per year. At such
time, the rate remains constant at 6.0% per year for the balance of the
remaining term. Multiples of the Prepayment Assumption are calculated from
this prepayment rate series.
Prepayment Assumption Multiple: _____% of the Prepayment Assumption.
Prepayment Distribution Trigger: As of any Distribution Date and as to
each Class of Class [B] Certificates, the related Prepayment Distribution
Trigger is satisfied if (x) the fraction, expressed as a percentage, the
numerator of which is the aggregate Class Certificate Principal Balance of
such Class and each Class subordinate thereto, if any, on such Distribution
Date, and the denominator of which is the Pool Scheduled Principal Balance
for such Distribution Date, equals or exceeds (y) such percentage
calculated as of the Closing Date.
Prepayment Interest Excess: As to any Voluntary Principal Prepayment
in full received from the first day through the fifteenth day of any
calendar month (other than the calendar month in which the Cut-off Date
occurs), all amounts paid in respect of interest on such Principal
Prepayment. For purposes of determining the amount of Prepayment Interest
Excess for any month, a Voluntary Principal Prepayment in full with respect
to a Mortgage Loan serviced by a Primary Servicer shall be deemed to have
been received when the Company, as servicer, receives notice thereof. All
Prepayment Interest Excess shall be retained by the Company, as servicer,
as additional servicing compensation.
Prepayment Period: With respect to any Distribution Date and any
Voluntary Principal Prepayment in part or other Principal Prepayment other
than a Voluntary Principal Prepayment in full, the calendar month preceding
the month of such Distribution Date; with respect to any Distribution Date
and any Voluntary Principal Prepayment in full, the period beginning on the
sixteenth day of the calendar month preceding the month of such
Distribution Date (or, in the case of the first Distribution Date,
beginning on the Cut-off Date) and ending on the fifteenth day of the month
in which such Distribution Date occurs.
Primary Insurance Policy: The certificate of private mortgage
insurance relating to a particular Mortgage Loan, or an electronic screen
print setting forth the information contained in such certificate of
private mortgage insurance, including, without limitation, information
relating to the name of the mortgage insurance carrier, the certificate
number, the loan amount, the property address, the effective date of
coverage, the amount of coverage and the expiration date of the policy.
Each such policy covers defaults by the Mortgagor, which coverage shall
equal the portion of the unpaid principal balance of the related Mortgage
Loan that exceeds 75% (or such lesser coverage required or permitted by
FNMA or FHLMC) of the Original Value of the underlying Mortgaged Property.
Primary Servicer: Any servicer with which the Servicer has entered
into a servicing agreement, as described in Section 3.01(f).
Principal Balance Schedules: Any principal balance schedules attached
hereto, if applicable, as Exhibit B, setting forth the PAC Balances of any
PAC Certificates and PAC Components, the TAC Balances of any TAC
Certificates and TAC Components and the Scheduled Balances of any Scheduled
Certificates and Scheduled Components.
Principal Only Certificate: [Any Class PO Certificate and any Class
Certificate.]
Principal Only Component: [ ].
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan (including, for this purpose, any refinancing permitted by
Section 3.01 and any REO Proceeds treated as such pursuant to Section
3.08(b)) which is received in advance of its scheduled Due Date and is not
accompanied by an amount of interest representing scheduled interest for
any month subsequent to the month of prepayment.
[Private Placement Memorandum: The private placement memorandum
relating to the Restricted Junior Certificates dated _____.]
Prohibited Transaction Exemption: U.S. Department of Labor Prohibited
Transaction Exemption _____.
Property Protection Expenses: With respect to any Mortgage Loan,
expenses paid or incurred by or for the account of the Servicer in
accordance with the related Mortgage for (a) real estate property taxes and
property repair, replacement, protection and preservation expenses and (b)
similar expenses reasonably paid or incurred to preserve or protect the
value of such Mortgage to the extent the Servicer is not reimbursed
therefor pursuant to the Primary Insurance Policy, if any, or any other
insurance policy with respect thereto.
Proprietary Lease: With respect to a Cooperative Loan, the proprietary
lease(s) or occupancy agreement with respect to the Cooperative Apartment
occupied by the Mortgagor and relating to the related Cooperative Stock,
which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
Purchase Price: With respect to any Mortgage Loan required or
permitted to be purchased hereunder from the Trust Fund, an amount equal to
100% of the unpaid principal balance thereof plus interest thereon at the
applicable Mortgage Rate from the date to which interest was last paid to
the first day of the month in which such purchase price is to be
distributed; provided, however, that [in the case of a Mortgage Loan to be
repurchased by the Mortgage Loan Seller,] if the Mortgage Loan Seller is
the Servicer hereunder, such purchase price shall be net of unreimbursed
Monthly Advances with respect to such Mortgage Loan, and the interest
component of the Purchase Price may be computed on the basis of the
Remittance Rate for such Mortgage Loan.
QIB: A "qualified institutional buyer" as defined in Rule 144A under
the Securities Act of 1933, as amended.
Rating Agency: Any statistical credit rating agency, or its successor,
that rated any of the Certificates at the request of the Depositor at the
time of the initial issuance of the Certificates. If such agency or a
successor is no longer in existence, "Rating Agency" shall be such
statistical credit rating agency, or other comparable Person, designated by
the Depositor, notice of which designation shall be given to the Trustee.
References herein to the two highest long-term rating categories of a
Rating Agency shall mean such ratings without any modifiers. As of the date
of the initial issuance of the Certificates, the Rating Agencies are _____
and _____; except that for purposes of the Junior Certificates, other than
the Class [B5] Certificates, _____ shall be the sole Rating Agency. The
Class [B5] Certificates are issued without ratings.
Realized Loss: Any (i) Deficient Valuation or (ii) as to any
Liquidated Mortgage Loan, (x) the unpaid principal balance of such
Liquidated Mortgage Loan plus accrued and unpaid interest thereon at the
Net Mortgage Rate through the last day of the month of such liquidation
less (y) the related Liquidation Proceeds and Insurance Proceeds (as
reduced by the related Liquidation Expenses).
Record Date: The last Business Day of the month immediately preceding
the month of the related Distribution Date.
Reference Banks: As defined in Section 5.08.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly
Payment thereof has been reduced due to the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Part IV of Subchapter M of Chapter 1 of the Code, and
related provisions, and U.S. Office of the Treasury temporary or final
regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Rate: With respect to any Mortgage Loan, the related
Mortgage Rate less the [sum of the applicable Base] Servicing Fee Rate [and
the Supplemental Servicing Fee Rate].
REO Mortgage Loan: Any Mortgage Loan which is not a Liquidated
Mortgage Loan and as to which the related Mortgaged Property is held as
part of the Trust Fund.
REO Proceeds: Proceeds, net of any related expenses of the Servicer,
received in respect of any REO Mortgage Loan (including, without
limitation, proceeds from the rental of the related Mortgaged Property).
Reserve Fund: [ ].
Reserve Interest Rate: As defined in Section 5.08.
Residual Certificate: Any Class R [or Class RL] Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer or assistant officer assigned to and working in the Corporate Trust
Department of the Trustee and, also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Restricted Certificate: Any Restricted Junior Certificate or Class PO
Certificate.
Restricted Junior Certificate: Any Class [B3, Class B4 or Class B5]
Certificate.
S&P: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and its successors.
SAIF: The Savings Association Insurance Fund of the FDIC, or its
successor in interest.
Scheduled Balance: As to any Distribution Date and any Class of
Scheduled Certificates and any Scheduled Component, the balance designated
as such for such Distribution Date and such Class or Component as set forth
in the Principal Balance Schedules.
Scheduled Certificate: [ ].
Scheduled Component: [ ].
Scheduled Principal Balance: As to any Mortgage Loan and Distribution
Date, the principal balance of such Mortgage Loan as of the Due Date in the
month next preceding the month of such Distribution Date (or, if so
specified, such other date) as specified in the amortization schedule at
the time relating to such Mortgage Loan (before any adjustment to such
amortization schedule by reason of any bankruptcy or similar proceeding or
any moratorium or similar waiver or grace period) after giving effect to
any previous Principal Prepayments, Deficient Valuations incurred
subsequent to the Bankruptcy Coverage Termination Date, adjustments due to
the application of the Relief Act and the payment of principal due on such
Due Date, irrespective of any delinquency in payment by the related
Mortgagor. As to any Mortgage Loan and the Cut-off Date, the "unpaid
balance" thereof specified in the initial Mortgage Loan Schedule.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock and Proprietary Lease.
Senior Certificate: Any Certificate other than a Junior Certificate.
Senior Certificate Principal Balance: As of any Distribution Date, an
amount equal to the sum of the Certificate Principal Balances of the Senior
Certificates (other than any Class PO Certificates).
Senior Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of:
(i) the Senior Percentage of the applicable Non-PO Percentage of the
principal portion of each Monthly Payment due on the related Due Date on
each Outstanding Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time applicable thereto (after adjustments for
previous Principal Prepayments and the principal portion of Debt Service
Reductions subsequent to the Bankruptcy Coverage Termination Date but
before any adjustment to such amortization schedule by reason of any
bankruptcy (except as aforesaid) or similar proceeding or any moratorium or
similar waiver or grace period);
(ii) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of all principal prepayments in part received during the related
Prepayment Period, together with the Senior Prepayment Percentage of the
applicable Non-PO Percentage of the Scheduled Principal Balance of each
Mortgage Loan which was the subject of a Voluntary Principal Prepayment in
full during the related Prepayment Period;
(iii) the lesser of (x) the Senior Percentage of the applicable Non-PO
Percentage of the sum of (A) the Scheduled Principal Balance of each
Mortgage Loan that became a Liquidated Mortgage Loan (other than Mortgage
Loans described in clause (B)) during the related Prepayment Period and (B)
the Scheduled Principal Balance of each Mortgage Loan that was purchased by
an insurer from the Trustee during the related Prepayment Period pursuant
to the related Primary Insurance Policy, as reduced in each case by the
Senior Percentage of the applicable Non-PO Percentage of the principal
portion of any Excess Losses (other than Excess Bankruptcy Losses
attributable to Debt Service Reductions), and (y) the Senior Prepayment
Percentage of the applicable Non-PO Percentage of the sum of (A) all Net
Liquidation Proceeds allocable to principal received in respect of each
such Liquidated Mortgage Loan (other than Mortgage Loans described in
clause (B)) and (B) the principal balance of each such Mortgage Loan
purchased by an insurer from the Trustee pursuant to the related Primary
Insurance Policy, in each case during the related Prepayment Period;
(iv) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of the Scheduled Principal Balance of each Mortgage Loan which
was purchased on such Distribution Date pursuant to Section 2.02, 2.03(a)
or 3.16; and
(v) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of the Substitution Amount for any Mortgage Loan substituted
during the month of such Distribution Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment in
full with respect to a Mortgage Loan serviced by a Primary Servicer shall
be deemed to have been received when the Company, as servicer, receives
notice thereof.
Senior Percentage: As to any Distribution Date, the lesser of (i) 100%
and (ii) the percentage (carried to six places rounded up) obtained by
dividing the Senior Certificate Principal Balance immediately prior to such
Distribution Date by an amount equal to the sum of the Certificate
Principal Balances of all the Certificates other than any Class PO
Certificates immediately prior to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date occurring
prior to the fifth anniversary of the first Distribution Date, 100%. For
any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date, an amount as follows:
(i) for any Distribution Date subsequent to _____ to and including the
Distribution Date in _____, the Senior Percentage for such Distribution
Date plus 70% of the Junior Percentage for such Distribution Date;
(ii) for any Distribution Date subsequent to _____ to and including
the Distribution Date in _____, the Senior Percentage for such Distribution
Date plus 60% of the Junior Percentage for such Distribution Date;
(iii) for any Distribution Date subsequent to _____ to and including
the Distribution Date in _____, the Senior Percentage for such Distribution
Date plus 40% of the Junior Percentage for such Distribution Date;
(iv) for any Distribution Date subsequent to _____ to and including
the Distribution Date in _____, the Senior Percentage for such Distribution
Date plus 20% of the Junior Percentage for such Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage for
such Distribution Date.
Notwithstanding the foregoing, if on any Distribution Date the Senior
Percentage exceeds the Senior Percentage as of the Closing Date, the Senior
Prepayment Percentage for such Distribution Date will equal 100%.
In addition, notwithstanding the foregoing, no reduction of the Senior
Prepayment Percentage below the level in effect for the most recent prior
period as set forth in clauses (i) through (iv) above shall be effective on
any Distribution Date unless at least one of the following two tests is
satisfied:
Test I: If, as of the last day of the month preceding such
Distribution Date, (i) the aggregate Scheduled Principal Balance of
Mortgage Loans delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and REO Mortgage Loans) as a percentage of
the aggregate Class Certificate Principal Balance of the Junior
Certificates as of such date, does not exceed 50%, and (ii) cumulative
Realized Losses with respect to the Mortgage Loans do not exceed (a) 30% of
the aggregate Class Certificate Principal Balance of the Junior
Certificates as of the Closing Date (the "Original Subordinate Principal
Balance") if such Distribution Date occurs between and including _____ and
_____, (b) 35% of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including _____ and _____, (c) 40% of
the Original Subordinate Principal Balance if such Distribution Date occurs
between and including _____ and _____, (d) 45% of the Original Subordinate
Principal Balance if such Distribution Date occurs between and including
_____ and _____ and (e) 50% of the Original Subordinate Principal Balance
if such Distribution Date occurs during or after _____; or
Test II: If, as of the last day of the month preceding such
Distribution Date, (i) the aggregate Scheduled Principal Balance of
Mortgage Loans delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and REO Mortgage Loans) averaged over the
last three months, as a percentage of the aggregate Scheduled Principal
Balance of Mortgage Loans averaged over the last three months, does not
exceed 4%, and (ii) cumulative Realized Losses with respect to the Mortgage
Loans do not exceed (a) 10% of the Original Subordinate Principal Balance
if such Distribution Date occurs between and including _____ and _____, (b)
15% of the Original Subordinate Principal Balance if such Distribution Date
occurs between and including _____ and _____, (c) 20% of the Original
Subordinate Principal Balance if such Distribution Date occurs between and
including _____ and _____, (d) 25% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including _____ and
_____, and (e) 30% of the Original Subordinate Principal Balance if such
Distribution Date occurs during or after _____.
Servicer: GECMSI, or, if any successor to GECMSI is appointed as, or
becomes, servicer pursuant to Section 6.02, 6.03 or 7.02, the such
successor.
Servicer's Certificate: A certificate, completed by and executed on
behalf of the Servicer by a Servicing Officer in accordance with Section
4.06, substantially in the form of Exhibit D hereto or in such other form
as the Company and the Trustee shall agree.
Servicing Fee: As to any Mortgage Loan and Distribution Date, the [sum
of (a) the Base Servicing Fee and (b) the Supplemental Servicing Fee].
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans
whose name appears on a list of servicing officers attached to an Officer's
Certificate furnished to the Trustee by the Servicer, as such list may from
time to time be amended.
Single Certificate: A Certificate with an Initial Certificate
Principal Balance, or initial Notional Principal Balance, of $1,000 or, in
the case of a Class of Certificates issued with an initial Class
Certificate Principal Balance or initial Notional Principal Balance of less
than $1,000, such lesser amount.
Special Hazard Loss: (i) A Realized Loss suffered by a Mortgaged
Property on account of direct physical loss, exclusive of (a) any loss
covered by a hazard policy or a flood insurance policy required to be
maintained in respect of such Mortgaged Property under Section 3.06 and (b)
any loss caused by or resulting from:
(A) normal wear and tear;
(B) conversion or other dishonest act on the part of the Trustee,
the Company or any of their agents or employees; or
(C) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues;
or (ii) any Realized Loss suffered by the Trust Fund arising from or
related to the presence or suspected presence of hazardous wastes or
hazardous substances on a Mortgaged Property unless such loss to a
Mortgaged Property is covered by a hazard policy or a flood insurance
policy required to be maintained in respect of such Mortgaged Property
under Section 3.06.
Special Hazard Loss Amount: As of any Distribution Date, an amount
equal to $_____ minus the sum of (i) the aggregate amount of Special Hazard
Losses that would have been allocated to the Junior Certificates in
accordance with Section 4.03 in the absence of the Loss Allocation
Limitation and (ii) the Adjustment Amount (as defined below) as most
recently calculated. On each anniversary of the Cut-off Date, the
"Adjustment Amount" shall be equal to the amount, if any, by which the
amount calculated in accordance with the preceding sentence (without giving
effect to the deduction of the Adjustment Amount for such anniversary)
exceeds the lesser of (x) the greater of (A) the product of the Special
Hazard Percentage for such anniversary multiplied by the outstanding
principal balance of all the Mortgage Loans on the Distribution Date
immediately preceding such anniversary and (B) twice the outstanding
principal balance of the Mortgage Loan which has the largest outstanding
principal balance on the Distribution Date immediately preceding such
anniversary, and (y) an amount calculated by the Company and approved by
each Rating Agency, which amount shall not be less than $500,000.
Special Hazard Percentage: As of each anniversary of the Cut-off Date,
the greater of (i) 1.00% and (ii) the largest percentage obtained by
dividing (x) the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of the Mortgage Loans secured by
Mortgaged Properties located in a single, five-digit zip code area in the
State of _____ by (y) the outstanding principal balance of all the Mortgage
Loans as of the immediately preceding Distribution Date.
Special Hazard Termination Date: The Distribution Date upon which the
Special Hazard Loss Amount has been reduced to zero or a negative number
(or the Cross-Over Date, if earlier).
Specified Component: [ ].
Startup Day: As defined in Section 2.06(c).
Subordinate Certificates: The Class [M and Class B] Certificates.
Subordinate Certificate Writedown Amount: As to any Distribution Date,
first, any amount distributed to the Class PO Certificates on such
Distribution Date pursuant to Section 4.01(a)(iv) and second, after giving
effect to the application of clause first above, the amount by which (i)
the sum of the Class Certificate Principal Balances of all the Certificates
(after giving effect to the distribution of principal and the application
of Realized Losses in reduction of the Certificate Principal Balances of
the related Certificates on such Distribution Date) exceeds (ii) the Pool
Scheduled Principal Balance on the first day of the month of such
Distribution Date less any Deficient Valuations occurring on or prior to
the Bankruptcy Coverage Termination Date.
Substitution Amount: With respect to any Mortgage Loan substituted
pursuant to Section 2.03(b), the excess of (x) the Scheduled Principal
Balance of the Mortgage Loan that is substituted for, over (y) the
Scheduled Principal Balance of the related substitute Mortgage Loan, each
balance being determined as of the date of substitution.
[Supplemental Servicing Fee: As to any Mortgage Loan and Distribution
Date, an amount equal to the product of (i) the Scheduled Principal Balance
of such Mortgage Loan as of the Due Date in the preceding calendar month
and (ii) the Supplemental Servicing Fee Rate for such Mortgage Loan. The
Supplemental Servicing Fee for any Distribution Date shall be reduced by
its allocable share of Interest Shortfalls (as provided in the definition
thereof) and any Interest Losses (in accordance with Section 3.08(d)).]
[Supplemental Servicing Fee Rate: As to any Mortgage Loan and
Distribution Date, a fixed rate per annum equal to the excess, if any, of
the Net Mortgage Rate thereof over _____%.]
Surety: _____, or its successors in interest.
Surety Bond: The Limited Purpose Surety Bond (Policy No. _____), dated
_____, issued by the Surety for the benefit of certain beneficiaries,
including the Trustee for the benefit of the Holders of the Certificates,
but only to the extent that such Limited Purpose Surety Bond covers any
Pledged Asset Mortgage Loans.
TAC Balance: As to any Distribution Date and any Class of TAC
Certificates and any TAC Component, the balance designated as such for such
Distribution Date and such Class or Component as set forth in the Principal
Balance Schedules attached as Exhibit B hereto.
TAC Certificates: [ ].
TAC Component: [ ].
Trigger Event: Any one or more of the following: (i) if GECMSI is not
a wholly-owned direct or indirect subsidiary of General Electric Company or
if GECC shall not own (directly or indirectly) at least two-thirds of the
voting shares of the capital stock of GECMSI, (ii) if the long-term senior
unsecured rating of GECC is downgraded or withdrawn by _____ or _____ below
their two highest rating categories, (iii) if GECC is no longer obligated
pursuant to the terms of the support agreement, dated as of October 1,
1990, between GECC and GECMSI, to maintain GECMSI's net worth or liquidity
(as such terms are defined therein) at the levels specified therein, or if
such support agreement, including any amendment thereto, has been breached,
terminated or otherwise held to be unenforceable and (iv) if such support
agreement, including any amendment thereto, is amended or modified.
Trust Fund: The corpus of the trust created by this Agreement
evidenced by the Certificates and consisting of:
(i) the Mortgage Loans;
(ii) all payments on or collections in respect of such Mortgage Loans,
except as otherwise described in the first paragraph of Section 2.01,
including the proceeds from the liquidation of any Additional Collateral
for any Pledged Asset Mortgage Loan;
(iii) the obligation of the Company to deposit in the Certificate
Account the amounts required by Sections 3.02(d), 3.02(e) and 4.04(a), and
the obligation of the Trustee to deposit in the Certificate Account any
amount required pursuant to Section 4.04(b);
(iv) the obligation of the Company to purchase or replace any
Defective Mortgage Loan pursuant to Section 2.02 or 2.03;
(v) all property acquired by foreclosure or deed in lieu of
foreclosure with respect to any REO Mortgage Loan;
(vi) the proceeds of the Primary Insurance Policies, if any, and the
hazard insurance policies required by Section 3.06, in each case, in
respect of the Mortgage Loans, and the Company's interest in the Surety
Bond transferred to the Trustee pursuant to Section 2.01;
(vii) the Certificate Account established pursuant to Section 3.02(d);
(viii) the Eligible Account or Accounts, if any, established pursuant
to Section 3.02(e);
(ix) any collateral funds established to secure the obligations of the
Holder of the Class [B4] and Class [B5] Certificates, respectively, under
any agreements entered into between such holder and the Company pursuant to
Section 3.08(e) (which collateral funds will not constitute a part of any
REMIC established hereunder)[.][; and]
(x) the rights and remedies under the Loan Sale Agreement, other than
the right to receive the purchase for the Mortgage Loans payable by the
Depositor to the Mortgage Loan Seller.
Trustee: The institution executing this Agreement as Trustee, or its
successor in interest, or if any successor trustee is appointed as herein
provided, then such successor trustee so appointed.
Unanticipated Recovery: As defined in Section 4.01(f) herein.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of the property is not fully
reimbursable by the hazard insurance policies required to be maintained
pursuant to Section 3.06.
Unpaid Class Interest Shortfall: As to any Distribution Date and any
Class of Certificates (other than any Class of Principal Only Certificates
and any Class consisting of Specified Components) or any Specified
Component (other than any Principal Only Component), the amount, if any, by
which the aggregate of the Class Interest Shortfalls for such Class or in
respect of such Specified Component for prior Distribution Dates is in
excess of the aggregate amounts distributed on prior Distribution Dates to
Holders of such Class of Certificates or in respect of such Specified
Component (or added to the Class Certificate Principal Balance of any Class
of Accrual Certificates, or to the Component Principal Balance of any
Accrual Component constituting a Specified Component) pursuant to [a
description of the Pooling and Servicing Agreement explanatory sections and
a listing of the corresponding Senior or Junior Certificates].
[Upper-Tier REMIC: One of the two separate REMICs comprising the Trust
Fund, the assets of which consist of the Lower-Tier Interests.]
Voluntary Principal Prepayment: With respect to any Distribution Date,
any prepayment of principal received from the related Mortgagor on a
Mortgage Loan.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the
voting provisions of Section 10.01. At all times during the term of this
Agreement, 99% of all Voting Rights shall be allocated to the Classes of
Certificates (other than the Class _____ Certificates), and 1% shall be
allocated to Class _____ Certificates. Voting Rights shall be allocated
among the Classes (other than the Class _____ Certificates) (and among the
Certificates within each Class of Certificates) in proportion to their
Class Certificate Principal Balances (or Certificate Principal Balances or
Notional Principal Balances), as the case may be.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans [;Assignment of Loan Sale
Agreement]. (a) The Depositor, concurrently with the execution and delivery of
this Agreement, does hereby transfer, assign, set-over and otherwise convey to
the Trustee without recourse (except as provided herein) all the right, title
and interest of the Depositor in and to the Mortgage Loans, including all
interest and principal received by the Depositor [or the Mortgage Loan Seller]
on or with respect to the Mortgage Loans (other than payments of principal and
interest due and payable on the Mortgage Loans on or before, and all Principal
Prepayments received before, the Cut-off Date). [The Depositor, concurrently
with execution and delivery hereof, does also hereby transfer, assign, set over
and otherwise convey to the Trustee without recourse (except to the extent
provided herein) all the right, title and interest of the Depositor in, to and
under the Loan Sale Agreement.]
(b) The Depositor acknowledges it has transferred, assigned, set-over and
otherwise conveyed all right, title and interest in and to the Mortgage Loans to
the Trustee to the extent provided above and that retention of record title of
Mortgages (subject to Section 2.01(d) of this Agreement) by the [Depositor]
[Mortgage Loan Seller] is for convenience only and that the [Depositor]
[Mortgage Loan Seller] holds record title in its capacity as Servicer solely as
custodian for the Trustee for benefit of the Certificateholders. The [Depositor]
[Mortgage Loan Seller] agrees that it will take no action inconsistent with
ownership of the Mortgage Loans by the Trustee and will not deliver any
instrument of satisfaction or conveyance with respect to a Mortgage or a
Mortgage Loan, or convey or purport to convey any interest in a Mortgage Loan,
except in accordance with the terms and the intent of this Agreement.
(c) In connection with such transfer and assignment, the Depositor does
hereby deliver to the Trustee the following documents or instruments with
respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated
Loan) so transferred and assigned:
(i) The Mortgage Note, endorsed without recourse in blank by the
Mortgage Loan Seller, including all intervening endorsements showing a
complete chain of endorsement from the originator to the Trustee;
provided, however, that if such Mortgage Note is a Confirmatory
Mortgage Note, such Confirmatory Mortgage Note may be payable directly
to the Trustee or may show a complete chain of endorsement from the
named payee to the Trustee;
(ii) Any assumption and modification agreement;
(iii) An assignment in recordable form (which may be included in
a blanket assignment or assignments) of the Mortgage to the Trustee;
and
(2) Each Cooperative Loan (other than a Designated Loan) so
transferred and assigned:
(i) The Mortgage Note, endorsed without recourse in blank by the
Mortgage Loan Seller and showing an unbroken chain of endorsements
from the originator to the Trustee; provided, however, that if such
Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory
Mortgage Note may be payable directly to the Trustee or may show a
complete chain of endorsement from the named payee to the Trustee;
(ii) A counterpart of the Proprietary Lease and the Assignment of
Proprietary Lease executed in blank or to the originator of the
Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an
undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the
Cooperative of the interests of the mortgagee with respect to the
related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such Cooperative
Loan as secured party, each with evidence of recording thereof,
evidencing the interest of the originator in the Cooperative Stock and
the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the
security interest described in clause (vi) above, sent to the
appropriate public office for filing, showing an unbroken chain of
title from the originator to the Trustee, evidencing the security
interest of the originator in the Cooperative Stock and the
Proprietary Lease;
(viii) An executed assignment (which may be a blanket assignment
for all Cooperative Loans) of the interest of the Mortgage Loan Seller
in the Security Agreement, Assignment of Proprietary Lease and the
recognition agreement described in clause (iv) above, showing an
unbroken chain of title from the originator to the Trustee; and (ix) A
UCC-3 assignment from the [Mortgage Loan Seller] to the Trustee of the
security interest described in clause (vi) above, in form suitable for
filing, otherwise complete except for filing information regarding the
original UCC-1 if unavailable (which may be included in a blanket
assignment to the Trustee).
In instances where a completed assignment of the Mortgage in recordable
form cannot be delivered by the Depositor to the Trustee in accordance with
Section 2.01(b)(1)(iii) prior to or concurrently with the execution and delivery
of this Agreement, due to a delay in connection with recording of the Mortgage,
the Depositor may, in lieu of delivering the completed assignment in recordable
form, deliver to the Trustee the assignment in such form, otherwise complete
except for recording information.
(3) With respect to each Designated Loan, the Depositor does hereby
deliver to the Trustee the Designated Loan Closing Documents.
(d) In connection with each Mortgage Loan transferred and assigned to the
Trustee, the Depositor shall deliver to the Trustee the following documents or
instruments as promptly as practicable, but in any event within 30 days, after
receipt by the Depositor [or the Mortgage Loan Seller on its behalf pursuant to
the Loan Sale Agreement] of all such documents and instruments for all of the
outstanding Mortgage Loans:
(i) the Mortgage with evidence of recording indicated thereon
(other than with respect to a Cooperative Loan);
(ii) a copy of the title insurance policy (other than with
respect to a Cooperative Loan);
(iii) with respect to any Mortgage that has been assigned to the
Company, the related recorded intervening assignment or assignments of
Mortgage, showing a complete chain of assignment from the originator
to the Company (other than with respect to a Cooperative Loan); and
(iv) with respect to any Cooperative Loan that has been assigned
to the Depositor, the related filed intervening UCC-3 financing
statements (not previously delivered pursuant to Section
2.01(b)(2)(vii)), showing a complete chain of assignment from the
named originator to the Mortgage Loan Seller.
Pending such delivery, the Servicer shall retain in its files (a) copies of the
documents described in clauses (i) and (iii) of the preceding sentence, without
evidence of recording thereon, and (b) title insurance binders with respect to
the Mortgage Loans (other than with respect to a Cooperative Loan). The Servicer
shall also retain in its files evidence of any Primary Mortgage Insurance
relating to the Mortgage Loans during the period when the related insurance is
in force. (The copies of the Mortgage, intervening assignments of Mortgage, if
any, title insurance binder and the Primary Insurance Policy, if any, described
in the two preceding sentences are collectively referred to herein as the
"Document File" with respect to each Mortgage Loan.) The Servicer shall advise
the Trustee in writing if such delivery to the Trustee shall not have occurred
on or before the first anniversary of the Closing Date. The Servicer shall
promptly furnish to the Trustee the documents included in the Document Files
(other than any such documents previously delivered to the Trustee as originals
or copies) either (a) upon the written request of the Trustee or (b) when the
Company or the Trustee obtains actual notice or knowledge of a Trigger Event.
The Trustee shall have no obligation to request delivery of the Document Files
unless a Responsible Officer of the Trustee has actual notice or knowledge of
the occurrence of a Trigger Event.
In the case of Mortgage Loans which have been prepaid in full after the
Cut-off Date and prior to the date of execution and delivery of this Agreement,
the Depositor, in lieu of delivering the above documents to the Trustee,
herewith delivers to the Trustee a certification of a Servicing Officer of the
nature set forth in Section 3.09.
(e) The Depositor shall not be required to record the assignments of the
Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments
referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Mortgage Loan
Seller or the Trustee obtains actual notice or knowledge of the occurrence of
any Trigger Event; provided, however, that such recording or filing shall not be
required if the Mortgage Loan Seller delivers to the Trustee a letter from each
Rating Agency to the effect that the failure to take such action will not cause
such Rating Agency to reduce or withdraw its then current ratings of the
Certificates. The party obtaining actual notice or knowledge of any of such
events shall give the other party prompt written notice thereof. For purposes of
the foregoing (as well as for purposes of determining whether the Mortgage Loan
Seller shall be required to deliver the Document Files to the Trustee following
the occurrence of a Trigger Event), the Mortgage Loan Seller shall be deemed to
have knowledge of any such downgrading referred to in the definition of Trigger
Event if, in the exercise of reasonable diligence, the Mortgage Loan Seller has
or should have had knowledge thereof. As promptly as practicable subsequent to
the Mortgage Loan Seller's delivery or receipt of such written notice, as the
case may be, the Mortgage Loan Seller shall insert the recording or filing
information in the assignments of the Mortgages or UCC-3 assignments to the
Trustee and shall cause the same to be recorded or filed, at the Mortgage Loan
Seller's expense, in the appropriate public office for real property records or
UCC financing statements, except that the Mortgage Loan Seller need not cause to
be so completed and recorded any assignment of mortgage which relates to a
Mortgage Loan secured by property in a jurisdiction under the laws of which, on
the basis of an Opinion of Counsel reasonably satisfactory to the Trustee and
satisfactory to each Rating Agency (as evidenced in writing), recordation of
such assignment is not necessary to protect the Trustee against discharge of
such Mortgage Loan by the Mortgage Loan Seller [or the Depositor] or any valid
assertion that any Person other than the Trustee has title to or any rights in
such Mortgage Loan. In the event that the Mortgage Loan Seller fails or refuses
to record or file the assignment of Mortgages or UCC-3 financing statement in
the circumstances provided above, the Trustee shall record or cause to be
recorded or filed such assignment or UCC-3 financing statement at the expense of
the Mortgage Loan Seller. In connection with any such recording or filing, the
Mortgage Loan Seller shall furnish such documents as may be reasonably necessary
to accomplish such recording or filing. Notwithstanding the foregoing, at any
time the Mortgage Loan Seller may record or file, or cause to be recorded or
filed, the assignments of Mortgages or UCC-3 financing statement at the expense
of the Mortgage Loan Seller.
Section 2.02. Acceptance by Trustee. Subject to the examination hereinafter
provided, the Trustee acknowledges receipt of the Mortgage Notes, the
assignments of the Mortgages to the Trustee, the assumption and modification
agreements, if any, the documents specified in Section 2.01(b)(2) (subject to
any permitted delayed delivery of the documents described in Section
2.01(c)(iv)), and the Designated Loan Closing Documents, if any, delivered
pursuant to Section 2.01, and declares that the Trustee holds and will hold such
documents and each other document delivered to it pursuant to Section 2.01 in
trust, upon the trusts herein set forth, for the use and benefit of all present
and future Certificateholders. The Trustee agrees, for the benefit of
Certificateholders, to review each Mortgage File within 45 days after (i) the
execution and delivery of this Agreement, in the case of the Mortgage Notes, the
assignments of the Mortgages to the Trustee, the assumption and modification
agreements, if any, the documents specified in Section 2.01(b)(2) (subject to
any permitted delayed delivery of the documents described in Section
2.01(c)(iv)), and the Designated Loan Closing Documents, if any, (ii) delivery
to the Trustee after the Closing Date of the Mortgage Notes and the assumption
and modification agreements, if any, with respect to each Designated Loan, and
(iii) delivery of the recorded Mortgages, title insurance policies, recorded
intervening assignments of Mortgage, if any, and filed intervening UCC-3
financing statements, if any, with respect to any Cooperative Loan to ascertain
that all required documents set forth in Section 2.01 have been executed,
received and recorded, if applicable, and that such documents relate to the
Mortgage Loans identified in Exhibit C hereto. In performing such examination,
the Trustee may conclusively assume the due execution and genuineness of any
such document and the genuineness of any signature thereon. It is understood
that the scope of the Trustee's examination of the Mortgage Files is limited
solely to confirming, after receipt of the documents listed in Section 2.01,
that such documents have been executed, received and recorded, if applicable,
and relate to the Mortgage Loans identified in Exhibit C to this Agreement. If
in the course of such review the Trustee finds (1) that any document required to
be delivered as aforesaid has not been delivered, or (2) any such document has
been mutilated, defaced or physically altered without the borrower's
authorization or approval, or (3) based upon its examination of such documents,
the information with respect to any Mortgage Loan set forth on Exhibit C is not
accurate, the Trustee shall promptly so notify the Mortgage Loan Seller in
writing, which shall have a period of 60 days after receipt of such notice to
correct or cure any such defect. The Mortgage Loan Seller hereby covenants and
agrees that, if any such material defect cannot be corrected or cured, the
Mortgage Loan Seller will on a Distribution Date which is not later than the
first Distribution Date which is more than ten days after the end of such 60-day
period repurchase the related Mortgage Loan from the Trustee at the Purchase
Price therefor or replace such Mortgage Loan pursuant to Section 2.03(b);
provided, however, that if the defect (or breach pursuant to Section 2.03(a)) is
one that, had it been discovered before the Startup Day, would have prevented
the Mortgage Loan from being a "qualified mortgage" within the meaning of the
REMIC Provisions, such defect or breach shall be cured, or the related Mortgage
Loan shall be repurchased or replaced, on a Distribution Date which falls within
90 days of the date of discovery of such defect or breach. The Purchase Price
for the repurchased Mortgage Loan, or any amount required in respect of a
substitution pursuant to Section 2.03(b), shall be deposited by the Company in
the Certificate Account pursuant to Section 3.02(d) on the Business Day prior to
the applicable Distribution Date and, upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, the Trustee shall
release or cause to be released to the Mortgage Loan Seller the related Mortgage
File and shall execute and deliver or cause to be executed and delivered such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Mortgage Loan seller any Mortgage Loan released
pursuant hereto. It is understood and agreed that the obligation of the Mortgage
Loan Seller to repurchase or replace any Mortgage Loan as to which a material
defect in a constituent document exists shall constitute the sole remedy
respecting such defect available to Certificateholders or the Trustee on behalf
of Certificateholders.
Upon receipt by the Trustee of the Mortgage Note with respect to a
Designated Loan that is not defective in accordance with the fifth sentence of
the preceding paragraph, the related Lost Note Affidavit delivered pursuant to
Section 2.01 shall be void and the Trustee shall return it to the Depositor.
Section 2.03. Representations and Warranties of the Company; Mortgage Loan
Repurchase. (a) The Depositor hereby represents and warrants to the Trustee
that (1):
--------
(1) Note: If Funding is acting as Depositor, (A) its representations and
warranties will be limited to those set forth in subparagraphs (iii) and
(vii) below, in the latter case insofar as results from any action taken by
Funding, and (B) the remainder of the following representations and
warranties will, to the extent applicable, be made by the Mortgage Loan
Seller in the Loan Sale Agreement.
(i) The information set forth in Exhibit C hereto was true and
correct in all material respects at the date or dates respecting which
such information is furnished;
(ii) As of the date of the initial issuance of the Certificates,
other than with respect to Cooperative Loans, each Mortgage is a valid
and enforceable first lien on the property securing the related
Mortgage Note subject only to (a) the lien of current real property
taxes and assessments, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the
date of recording of such Mortgage, such exceptions appearing of
record being acceptable to mortgage lending institutions generally in
the area wherein the property subject to the Mortgage is located or
specifically reflected in the appraisal obtained in connection with
the origination of the related Mortgage Loan obtained by the Depositor
and (c) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by such Mortgage;
(iii) Immediately prior to the transfer and assignment herein
contemplated, the Depositor had good title to, and was the sole owner
of, each Mortgage Loan and all action had been taken to obtain good
record title to each related Mortgage. Each Mortgage Loan has been
transferred free and clear of any liens, claims and encumbrances;
(iv) As of the date of the initial issuance of the Certificates,
no payment of principal of or interest on or in respect of any
Mortgage Loan is 30 or more days past due and none of the Mortgage
Loans have been past due 30 or more days more than once during the
preceding 12 months;
(v) As of the date of the initial issuance of the Certificates,
other than with respect to Cooperative Loans, there is no mechanics'
lien or claim for work, labor or material affecting the premises
subject to any Mortgage which is or may be a lien prior to, or equal
or coordinate with, the lien of such Mortgage except those which are
insured against by the title insurance policy referred to in (x)
below;
(vi) As of the date of the initial issuance of the Certificates,
other than with respect to Cooperative Loans, there is no delinquent
tax or assessment lien against the property subject to any Mortgage;
(vii) As of the date of the initial issuance of the Certificates,
there is no valid offset, defense or counterclaim to any Mortgage Note
or Mortgage, including the obligation of the Mortgagor to pay the
unpaid principal and interest on such Mortgage Note;
(viii) As of the date of the initial issuance of the
Certificates, the physical property subject to any Mortgage (or, in
the case of a Cooperative Loan, the related Cooperative Apartment) is
free of material damage and is in good repair;
(ix) Each Mortgage Loan at the time it was made complied in all
material respects with applicable state and federal laws, including,
without limitation, usury, equal credit opportunity and disclosure
laws;
(x) Other than with respect to Cooperative Loans, a lender's
title insurance policy or binder, or other assurance of title
insurance customary in the relevant jurisdiction therefor was issued
on the date of the origination of each Mortgage Loan and each such
policy or binder is valid and remains in full force and effect;
(xi) The Loan-to-Value Ratio of each Mortgage Loan was not more
than _____%. As of the Cut-off Date, no more than _____% of the
Mortgage Loans by Scheduled Principal Balance had Loan-to-Value Ratios
of more than _____% and each such Mortgage Loan is covered by a
Primary Insurance Policy so long as its then outstanding principal
amount exceeds _____% of the greater of (a) the Original Value and (b)
the then current value of the related Mortgaged Property as evidenced
by an appraisal thereof satisfactory to the Depositor. Each Primary
Insurance Policy is issued by a private mortgage insurer acceptable to
FNMA or FHLMC;
(xii) Each Mortgage Note is payable on the first day of each
month in self-amortizing monthly installments of principal and
interest, with interest payable in arrears, over an original term of
not more than thirty years. The Mortgage Rate of each Mortgage Note of
the related Mortgage Loan was not less than _____% per annum and not
greater than _____% per annum. The Mortgage Rate of each Mortgage Note
is fixed for the life of the related Mortgage Loan;
(xiii) Other than with respect to Cooperative Loans, the
improvements on the Mortgaged Properties are insured against loss
under a hazard insurance policy with extended coverage and conforming
to the requirements of Section 3.06 hereof. As of the date of initial
issuance of the Certificates, all such insurance policies are in full
force and effect;
(xiv) As of the Cut-off Date, (i) no more than _____% of the
Mortgage Loans by Scheduled Principal Balance had a Scheduled
Principal Balance of more than $_____ and up to and including $_____;
(ii) no more than _____% of the Mortgage Loans by Scheduled Principal
Balance had a Scheduled Principal Balance of more than $_____ and up
to and including $_____; and (iii) no more than _____% of the Mortgage
Loans by Scheduled Principal Balance had a Scheduled Principal Balance
of more than $_____;
(xv) As of the Cut-off Date, no more than _____% of the Mortgage
Loans by Scheduled Principal Balance are secured by Mortgaged
Properties located in any one postal zip code area;
(xvi) As of the Cut-off Date, at least _____% of the Mortgage
Loans by Scheduled Principal Balance are secured by Mortgaged
Properties determined by the Depositor to be the primary residence of
the Mortgagor. The basis for such determination is the making of a
representation by the Mortgagor at origination that he or she intends
to occupy the underlying property;
(xvii) As of the Cut-off Date, at least _____% of the Mortgage
Loans by Scheduled Principal Balance are secured by one-family
detached residences;
(xviii) As of the Cut-off Date, no more than _____% of the
Mortgage Loans by Scheduled Principal Balance are secured by
condominiums and, as of the Cut-off Date, no more than _____% of the
Mortgage Loans by Scheduled Principal Balance are secured by two- to
four-family residential properties. As to each condominium or related
Mortgage Loan, (a) the related condominium is in a project that is on
the FNMA or FHLMC approved list, (b) the related condominium is in a
project that, upon submission of appropriate application, could be so
approved by either FNMA or FHLMC, (c) the related Mortgage Loan meets
the requirements for purchase by FNMA or FHLMC, (d) the related
Mortgage Loan is of the type that could be approved for purchase by
FNMA or FHLMC but for the principal balance of the related Mortgage
Loan or the pre-sale requirements or (e) the related Mortgage Loan has
been approved by a nationally recognized mortgage pool insurance
company for coverage under a mortgage pool insurance policy issued by
such insurer. As of the Cut-off Date, no more than _____% of the
Mortgage Loans by Scheduled Principal Balance are secured by
condominiums located in any one postal zip code area;
(xix) Other than with respect to Cooperative Loans, no Mortgage
Loan is secured by a leasehold interest in the related Mortgaged
Property and each Mortgagor holds fee title to the related Mortgaged
Property;
(xx) As of the Cut-off Date, no more than _____% of the Mortgage
Loans by Scheduled Principal Balance constituted Buydown Mortgage
Loans. The maximum Buydown Period for any Buydown Mortgage Loan is
_____ years, and the maximum difference between the stated Mortgage
Rate of any Buydown Mortgage Loan and the rate paid by the related
Mortgagor is _____ percentage points. The portion of the interest rate
paid by the related Mortgagor will not increase by more than _____
percentage point[s] for each _____ period;
(xxi) The original principal balances of the Mortgage Loans range
from $_____ to $_____;
(xxii) As of the Cut-off Date, no more than _____% of the
Mortgage Loans by Scheduled Principal Balance are secured by second
homes and no more than _____% of the Mortgage Loans by Scheduled
Principal Balance are secured by investor-owned properties;
(xxiii) All appraisals have been prepared substantially in
accordance with the description contained under the caption "The Trust
Fund - The Mortgage Loans" in the Depositor's prospectus dated _____
accompanying the Prospectus Supplement dated _____ pursuant to which
certain classes of the Certificates were publicly offered;
(xxiv) No selection procedures, other than those necessary to
comply with the representations and warranties set forth herein or the
description of the Mortgage Loans made in any disclosure document
delivered to prospective investors in the Certificates, have been
utilized in selecting the Mortgage Loans from the Depositor's
portfolio which would be adverse to the interests of the
Certificateholders;
(xxv) Other than with respect to Cooperative Loans, to the best
of the Depositor's knowledge, at origination no improvement located on
or being part of a Mortgaged Property was in violation of any
applicable zoning and subdivision laws and ordinances;
(xxvi) None of the Mortgage Loans is a temporary construction
loan. With respect to any Mortgaged Property which constitutes new
construction, the related construction has been completed
substantially in accordance with the specifications therefor and any
incomplete aspect of such construction shall not be material or
interfere with the habitability or legal occupancy of the Mortgaged
Property. Mortgage Loan amounts sufficient to effect any such
completion are in escrow for release upon or in connection with such
completion or a performance bond or completion bond is in place to
provide funds for this purpose and such completion shall be
accomplished within 120 days after weather conditions permit the
commencement thereof;
(xxvii) As of the Closing Date, each Mortgage Loan is a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code;
(xxviii) As of the Closing Date, the Depositor possesses the
Document File with respect to each Mortgage Loan, and, other than with
respect to Cooperative Loans, the related Mortgages and intervening
assignment or assignments of Mortgages, if any, have been delivered to
a title insurance company for recording;
(xxix) As of the Cut-Off Date, [_____%] of the Mortgage Loans are
Cooperative Loans. With respect to each Cooperative Loan:
(A) The Security Agreement creates a first lien in the stock
ownership and leasehold rights associated with the related
Cooperative Apartment;
(B) The lien created by the related Security Agreement is a
valid, enforceable and subsisting first priority security
interest in the related Cooperative Stock securing the related
Mortgage Note, subject only to (a) liens of the Cooperative for
unpaid assessments representing the Mortgagor's pro rata share of
the Cooperative's payments for its blanket mortgage, current and
future real property taxes, insurance premiums, maintenance fees
and other assessments to which like collateral is commonly
subject and (b) other matters to which like collateral is
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security
Agreement. There are no liens against or security interest in the
Cooperative Stock relating to such Cooperative Loan (except for
unpaid maintenance, assessments and other amounts owed to the
related Cooperative which individually or in the aggregate do not
have a material adverse effect on such Cooperative Loan), which
have priority over the Trustee's security interest in such
Cooperative Stock;
(C) The Cooperative Stock that is pledged as security for
the Mortgage Loan is held by a person as a "tenant-stockholder"
within the meaning of section 216 of the Code, the related
Cooperative that owns title to the related cooperative apartment
building is a "cooperative housing corporation" within the
meaning of section 216 of the Code, and such Cooperative is in
material compliance with applicable federal, state and local laws
which, if not complied with, could have a material adverse effect
on the Mortgaged Property; and
(D) There is no prohibition against pledging the Cooperative
Stock or assigning the Proprietary Lease; and
(xxx) With respect to each Mortgage Loan identified on Exhibit C
as having been originated or acquired under the Depositor's Enhanced
Streamlined Refinance program, the value of the related Mortgaged
Property, as of the date of such origination or acquisition under the
Company's Enhanced Streamlined Refinance program, is no less than the
value thereof established at the time the mortgage loan that is the
subject of the refinancing was originated.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(a) shall survive delivery of the respective Mortgage
Files to the Trustee. Upon discovery by either the Depositor, the Servicer or
the Trustee of a breach of any of the foregoing representations and warranties
or a breach of any representation or warranty of the Mortgage Loan Seller in the
Loan Sale Agreement with respect to any Mortgage Loan, in either case which
materially and adversely affects the interests of the Certificateholders in the
related Mortgage Loan, the party discovering such breach shall give prompt
written notice to the others. Subject to the following sentence, within 60 days
of its discovery or its receipt of notice of breach, or, with the prior written
consent of a Responsible Officer of the Trustee, such longer period specified in
such consent, the Depositor [if such representation and warranty was made by it
in this Section 2.03, and the Mortgage Loan Seller, if such representation and
warranty was made by it in the Loan Sale Agreement] shall cure such breach in
all material respects or shall repurchase such Mortgage Loan from the Trustee or
replace such Mortgage Loan pursuant to Section 2.03(b). Any such repurchase by
the Depositor shall be accomplished in the manner set forth in Section 2.02,
subject to the proviso of the third-to-last sentence thereof, and at the
Purchase Price [, and any such repurchase by the Mortgage Loan Seller shall be
accomplished in the manner set forth in the Loan Sale Agreement, with the
repurchase price credited to the Mortgage Loan Payment Record]. It is understood
and agreed that the obligation of the Depositor or the Mortgage Loan Seller, as
the case may be to repurchase or replace any Mortgage Loan as to which a breach
occurred and is continuing shall constitute the sole remedy respecting such
breach available to Certificateholders or the Trustee on behalf of
Certificateholders and such obligation of the Mortgage Loan Seller to repurchase
or replace any such Mortgage Loan shall not be assumed by any Person which may
succeed GECMSI as Servicer hereunder, but shall continue as an obligation of
GECMSI. Notwithstanding the preceding sentence, if a breach of the
representation and warranty of the Depositor contained in Section 2.03(a)(ix)
[Section [ ] of the Loan Sale Agreement] occurs as a result of a violation of
the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., as amended
("TILA") or any state truth-in lending or similar statute, and the Trustee or
the Trust Fund is named as a defendant in a TILA suit or a suit under any such
statutes in respect of such violation and liability in respect thereof is
imposed upon the Trustee or the Trust Fund as assignees of the related Mortgage
Loan pursuant to Section 1641 of TILA, or any analogous provision of any such
statute, the [Depositor] [Mortgage Loan Seller pursuant to the Loan Sale
Agreement] shall indemnify the Trustee and the Trust Fund from, and hold them
harmless against, any and all losses, liabilities, damages, claims or expenses
(including reasonable attorneys' fees) to which the Trustee and the Trust Fund,
or either of them, become subject pursuant to TILA or any such statute, insofar
as such losses, damages, claims or expenses (including reasonable attorneys'
fees) result from such violation. The Mortgage Loan Seller's obligations under
the preceding sentence shall not impair or derogate from the Servicer's
obligations to the Trustee under Section 8.05.
(b) If the [Depositor][Mortgage Loan Seller] is required to repurchase any
Mortgage Loan pursuant to Section 2.02 or 2.03(a) or the Loan Sale Agreement, as
applicable, the [Depositor] [Mortgage Loan Seller] may, at its option, within
the applicable time period specified in such respective Sections, remove such
Defective Mortgage Loan from the terms of this Agreement and substitute one or
more other mortgage loans for such Defective Mortgage Loan, in lieu of
repurchasing such Defective Mortgage Loan, provided that no such substitution
shall occur more than two years after the Closing Date. Any substitute Mortgage
Loan shall (a) have a Scheduled Principal Balance (together with that of any
other Mortgage Loan substituted for the same Defective Mortgage Loan) as of the
first Distribution Date following the month of substitution not in excess of the
Scheduled Principal Balance of the Defective Mortgage Loan as of such date (the
amount of any difference, plus one month's interest thereon at the respective
Remittance Rate, to be deposited by the Depositor [or Mortgage Loan Seller] in
the Certificate Account pursuant to Section 2.02 or the Loan Sale Agreement, as
applicable), (b) have a Mortgage Rate not less than, and not more than one
percentage point greater than, the Mortgage Rate of the Defective Mortgage Loan,
(c) have the same Net Mortgage Rate as the Defective Mortgage Loan, (d) have a
remaining term to stated maturity not later than, and not more than one year
less than, the remaining term to stated maturity of the Defective Mortgage Loan,
(e) be, in the reasonable determination of the Depositor [or Mortgage Loan
Seller], of the same type, quality and character as the Defective Mortgage Loan
as if the defect or breach had not occurred, (f) have a ratio of its current
principal amount to its Original Value not greater than that of the removed
Mortgage Loan and (g) be, in the reasonable determination of the Depositor [or
Mortgage Loan Seller], in compliance with the representations and warranties
contained in Section 2.03(a) as of the date of substitution.
The Servicer shall amend the Mortgage Loan Schedule to reflect the
withdrawal of any Defective Mortgage Loan and the substitution of a substitute
Mortgage Loan therefor. Upon such amendment, the Depositor [and the Mortgage
Loan Seller] shall be deemed to have made as to such substitute Mortgage Loan
the representations and warranties set forth in Section 2.03(a) [Section __ of
the Loan Sale Agreement] as of the date of such substitution, which shall be
continuing as long as any Certificate shall be outstanding or this Agreement has
not been terminated, and the remedies for breach of any such representation or
warranty shall be as set forth in Section 2.03(a). Upon such amendment, the
Trustee shall review the Mortgage File delivered to it relating to the
substitute Mortgage Loan, within the time and in the manner and with the
remedies specified in Section 2.02, except that for purposes of this Section
2.03(b) (other than the two-year period specified in the first sentence of the
preceding paragraph of this Section 2.03(b)), such time shall be measured from
the date of the applicable substitution.
Section 2.04. Execution of Certificates. The Trustee has caused to be
executed, countersigned and delivered to or upon the order of the Depositor, in
exchange for the Mortgage Loans, the Certificates in authorized denominations
evidencing the entire ownership of the Trust Fund.
[Section 2.05. Designations under the REMIC Provisions. (a) The Depositor
hereby designates the Classes of Certificates identified in Section 5.01(b),
other than the Residual Certificates, as "regular interests," and the Class R
Certificate as the single class of "residual interests," in the REMIC
established hereunder for purposes of the REMIC Provisions.
(b) The Closing Date will be the "Startup Day" for the REMIC established
hereunder for purposes of the REMIC Provisions.
(c) The "tax matters person" with respect to the REMIC established
hereunder for purposes of the REMIC Provisions shall be (i) the Servicer, if the
Servicer is the owner of a Class R Certificate, or (ii) in any other case, the
beneficial owner of the Class R Certificate having the largest Percentage
Interest of such Class; provided, however, that such largest beneficial owner
and, to the extent relevant, each other holder of a Class R Certificate, by its
acceptance thereof irrevocably appoints the Servicer as its agent and
attorney-in-fact to act as "tax matters person" with respect to the REMIC
established hereunder for purposes of the REMIC Provisions.
(d) The "latest possible maturity date" of the regular interests in the
REMIC established hereunder is the Latest Possible Maturity Date for purposes of
section 860G(a)(1) of the Code.
(e) In the event that the Servicing Fee exceeds the amount reasonable for
such services (within the meaning of Treasury Regulation 1.860D-1(b)(1)(ii)),
the portion or portions of such fee that can be measured as a fixed number of
basis points on some or all of the Mortgage Loans and can be treated as one or
more stripped coupons within the meaning of Treasury Regulation
1.860D-1(b)(2)(iii) shall be treated as such stripped coupons and shall not be
treated as a REMIC asset.]
[Section 2.05. The REMICs. (a) For federal income tax purposes, the Trust
Fund shall consist of two REMICs, the Lower-Tier REMIC and the Upper-Tier REMIC.
The Certificates, other than the Class RL Certificate, shall be issued by the
Upper-Tier REMIC, and the Class RL Certificate shall be issued by the Lower-Tier
REMIC. The Lower-Tier REMIC shall be evidenced by the Class RL Certificate and
the regular interests having the characteristics and terms set forth in the
following table, which interests (other than the Class RL Certificate) shall be
issued by the Lower-Tier REMIC to the Trustee. The Lower-Tier Interests and the
proceeds thereof shall be assets of the Upper-Tier REMIC. Principal of and
interest on the Lower-Tier Interests shall be allocated to the Corresponding
Classes of Certificates (or Components) in the manner set forth in the following
table.
Corresponding Class
of Certificates(1)
---------------------------------
Lower-Tier Allocation Allocation
Lower-Tier Initial Lower Interest of of
Interest Tier Balance Rate Principal Interest
-------- ------------ ---- --------- --------
[ ] [ ] [ ] [ ] [ ]
--------------------------
(1) Unless otherwise indicated, the amount of interest and principal allocable
from a Lower-Tier Interest to its Corresponding Class or Classes of
Certificates on any Distribution Date shall be 100%.
(2) On each Distribution Date, interest accrued on Lower-Tier Interest _____
for the applicable Interest Accrual Period shall be allocated as follows:
(x) an amount equal to the Accrued Certificate Interest on the
Corresponding Class shall be allocated to such Class; and (y) the excess of
such amount shall be allocated to the Class _____ Certificates.
(3) The Certificate Interest Rates of Lower-Tier Interests _____ Certificates
for each Interest Accrual Period shall equal such rates for the Class _____
Certificates, respectively.
(b) The Lower-Tier Interests shall be issued as non-certificated interests.
The Class RL Certificate shall be issued in fully registered certificated form
and shall be executed and countersigned as provided in Section 5.01 hereof.
(c) For purposes of further identifying the terms of the Lower-Tier
Interests, distributions of principal and interest on each Class of Lower-Tier
Interests shall be considered to correspond, in timing and aggregate amount, to
the distributions of principal and interest, respectively, made under Section
4.01 on the Corresponding Classes of Certificates or Components, and allocations
of losses on each Class of Lower-Tier Interests shall be considered to
correspond, in timing and aggregate amount, to the allocations of losses made
under Section 4.03 on the Corresponding Classes of Certificates or Components.
(d) On each Distribution Date, in addition to amounts otherwise
distributable thereon pursuant to Section 4.01, the Trustee shall distribute to
the holder of the Class RL Certificate any amounts (other than the amounts
described in clauses (x) and (y) of the definition of Available Funds) remaining
in the Lower-Tier REMIC after all amounts required to be applied pursuant to
Section 2.05(c) have been so applied. Any distributions pursuant to this clause
(d) shall not reduce the Class Certificate Principal Balance of the Class RL
Certificate.]
[Section 2.06. Designations under the REMIC Provisions. (a) The Depositor
hereby designates the Lower-Tier Interests identified in Section 2.05(a) above
as "regular interests," and the Class RL Certificate as the single class of
"residual interests," in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
(b) The Depositor hereby designates the Classes of Certificates identified
in Section 5.01(b), other than the Residual Certificates, as "regular
interests," and the Class R Certificate as the single class of "residual
interests," in the Upper-Tier REMIC for purposes of the REMIC Provisions.
(c) The Closing Date will be the "Startup Day" for each of the Upper-Tier
REMIC and Lower-Tier REMIC for purposes of the REMIC Provisions.
(d) The "tax matters person" with respect to the Upper-Tier REMIC for
purposes of the REMIC Provisions shall be (i) the Servicer, if the Servicer is
the owner of a Class R Certificate, or (ii) in any other case, the beneficial
owner of the Class R Certificate having the largest Percentage Interest of such
Class; provided, however, that such largest beneficial owner and, to the extent
relevant, each other holder of a Class R Certificate, by its acceptance thereof
irrevocably appoints the Servicer as its agent and attorney-in-fact to act as
"tax matters person" with respect to the Upper-Tier REMIC for purposes of the
REMIC Provisions.
The "tax matters person" with respect to the Lower-Tier REMIC for purposes
of the REMIC Provisions shall be (i) the Servicer, if the Servicer is the owner
of a Class RL Certificate, or (ii) in any other case, the beneficial owner of
the Class RL Certificate having the largest Percentage Interest of such Class;
provided, however, that such largest beneficial owner and, to the extent
relevant, each other holder of a Class RL Certificate, by its acceptance thereof
irrevocably appoints the Servicer as its agent and attorney-in-fact to act as
"tax matters person" with respect to the Lower-Tier REMIC for purposes of the
REMIC Provisions.
(e) The "latest possible maturity date" of the regular interests in the
Upper-Tier REMIC and Lower-Tier REMIC is the Latest Possible Maturity Date for
purposes of section 860G(a)(1) of the Code.
(f) In the event that the Servicing Fee exceeds the amount reasonable for
such services (within the meaning of Treasury Regulation 1.860D-1(b)(1)(ii)),
the portion or portions of such fee that can be measured as a fixed number of
basis points on some or all of the Mortgage Loans and can be treated as one or
more stripped coupons within the meaning of Treasury Regulation
1.860D-1(b)(2)(iii) shall be treated as such stripped coupons and shall not be
treated as a REMIC asset.]
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. GECMSI to Act as Servicer. (a) It is intended that [each of]
the [Upper-Tier REMIC and the Lower-Tier] REMIC established hereunder shall
constitute, and that the affairs of the REMIC[s] shall be conducted so as to
qualify [the Trust Fund] [each of the Upper-Tier REMIC and the Lower-Tier REMIC]
(other than any collateral fund established under the agreement referred to in
Section 3.08(e)), as a "real estate mortgage investment conduit" as defined in
and in accordance with the REMIC Provisions. In furtherance of such intention,
the Servicer covenants and agrees that it shall act as agent (and the Company is
hereby appointed to act as agent) on behalf of [the Trust Fund] [each of the
Upper-Tier REMIC and the Lower-Tier REMIC] established hereunder and the
[respective] Holders of the Residual Certificates and that in such capacity it
shall:
(i) prepare and file, or cause to be prepared and filed, in a
timely manner, a U.S. Real Estate Mortgage Investment Conduit Income
Tax Return (Form 1066) and prepare and file or cause to be prepared
and filed 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 of] the [Upper-Tier REMIC and the
Lower-Tier] REMIC established hereunder, using the calendar year as
the taxable year and the accrual method of accounting, 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 shall
furnish or cause to be furnished to Certificateholders the schedules,
statements or information at such times and in such manner as may be
required thereby;
(ii) within thirty days of the Closing Date, shall furnish or
cause to be furnished 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 (and the
Company shall act as the representative of [each of] the [Upper-Tier
REMIC and the Lower-Tier] REMIC established hereunder for this
purpose), together with such additional information as may be required
by such Form, and shall update such information at the time or times
and in the manner required by the Code;
(iii) make or cause to be made an election, on behalf of [each
of] the [Upper-Tier REMIC and the Lower-Tier] REMIC established
hereunder, to be treated as a REMIC, and make the appropriate
designations, if applicable, in accordance with Section 2.06 hereof on
the federal tax return of the Trust Fund for its first taxable year
(and, if necessary, under applicable state law);
(iv) prepare and forward, or cause to be prepared and forwarded,
to the Certificateholders and to the Internal Revenue Service and, if
necessary, state tax authorities, all information returns or reports,
or furnish or cause to be furnished by telephone, mail, publication or
other appropriate method such information, as and when required to be
provided to them in accordance with the REMIC Provisions, including
without limitation, the calculation of any original issue discount
using the Prepayment Assumption Multiple;
(v) provide information necessary for the computation of tax
imposed on the transfer of a Residual Certificate to a Disqualified
Organization, or an agent (including a broker, nominee or other
middleman) of a Disqualified Organization, or a pass-through entity in
which a Disqualified Organization 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);
(vi) use its best reasonable efforts to conduct the affairs of
[each of] the [Upper-Tier REMIC and the Lower-Tier] REMIC established
hereunder at all times that any Certificates are outstanding so as to
maintain the status thereof as a REMIC under the REMIC Provisions;
(vii) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the REMIC status
of the REMIC [either of the Upper-Tier REMIC or the Lower-Tier REMIC]
or that would subject the Trust Fund to tax;
(viii) exercise reasonable care not to allow the creation of any
"interests" in the REMIC [(A) in the Upper-Tier REMIC] within the
meaning of section 860D(a)(2) of the Code other than [in addition to]
the interests represented by the Classes of Certificates identified in
Section 5.01(b) [other than the Class RL Certificate, and (B) in the
Lower-Tier REMIC within the meaning of Section 860D(a)(2) of the Code
in addition to the interests represented by the Lower-Tier Interests
identified in Section 2.05(a) and the Class RL Certificate];
(ix) exercise reasonable care not to allow the occurrence of any
"prohibited transactions" within the meaning of section 860F of the
Code, unless the Company shall have provided an Opinion of Counsel to
the Trustee that such occurrence would not (a) result in a taxable
gain, (b) otherwise subject the Trust Fund to tax, or (c) cause the
REMIC [either of the Upper-Tier REMIC or the Lower-Tier REMIC]
established hereunder to fail to qualify as a REMIC;
(x) exercise reasonable care not to allow the Trust Fund to
receive income from the performance of services or from assets not
permitted under the REMIC Provisions to be held by a REMIC;
(xi) pay the amount of any federal or state tax, including
prohibited transaction taxes, taxes on certain contributions to the
REMIC [the Upper-Tier REMIC or Lower-Tier REMIC] after the Startup
Day, and taxes on net income from foreclosure property, imposed on the
Trust Fund when and as the same shall be due and payable (but such
obligation shall not prevent the Company or any other appropriate
Person from contesting any such tax in appropriate proceedings and
shall not prevent the Company from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings);
(xii) ensure that federal, state or local income tax or
information returns shall 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; and
(xiii) maintain such records relating to [each of] the
[Upper-Tier REMIC and the Lower-Tier] REMIC established hereunder,
including but not limited to the income, expenses, individual Mortgage
Loans (including Mortgaged Property), other assets and liabilities
thereof, and the fair market value and adjusted basis of the property
of each determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules,
statements or information.
The Servicer shall be entitled to be reimbursed pursuant to Section 3.04
for any federal income taxes paid by it pursuant to clause (xi) of the preceding
sentence, except to the extent that such taxes are imposed as a result of the
bad faith, misfeasance or negligence of the Servicer in the performance of its
obligations hereunder. With respect to any reimbursement of prohibited
transaction taxes, the Servicer shall inform the Trustee of the circumstances
under which such taxes were incurred.
(b) The Servicer shall service and administer the Mortgage Loans and shall
have full power and authority, acting alone or through one or more Primary
Servicers, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered by the Trustee, to execute and deliver, or file, as
appropriate, on behalf of itself, the Certificateholders and the Trustee or any
of them, any and all continuation statements, termination statements,
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the properties subject to the Mortgages. Without
limitation of the foregoing, if the Company in its individual capacity agrees to
refinance any Mortgage Loan upon the request of the related Mortgagor, the
Servicer may execute an instrument of assignment in customary form to the
Servicer in its individual capacity. In connection with any such refinancing,
the Trustee shall, upon certification of a Servicing Officer to the effect that
an amount equal to the principal balance of the related Mortgage Loan together
with accrued and unpaid interest thereon at the applicable Remittance Rate to
the date of such certification has been credited to the Mortgage Loan Payment
Record, release the related Mortgage File to the Servicer whereupon the Servicer
may cancel the related Mortgage Note. Upon request by the Servicer after the
execution and delivery of this Agreement, the Trustee shall furnish the Servicer
with any powers of attorney and other documents necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties
hereunder. Except as otherwise provided herein, the Servicer shall maintain
servicing standards substantially equivalent to those required for approval by
FNMA or FHLMC. The Servicer shall not agree to any modification of the material
terms of any Mortgage Loan except as provided in the second sentence of Section
3.02(a) and in Section 3.07. The Servicer shall not release any portion of any
Mortgaged Property from the lien of the related Mortgage unless the related
Mortgage Loan would be a "qualified mortgage" within the meaning of the REMIC
Provisions following such release.
(c) [Intentionally Omitted.]
(d) The relationship of the Servicer to the Trustee under this Agreement is
intended by the parties to be that of an independent contractor and not that of
a joint venturer, partner or agent.
(e) All costs incurred by the Servicer in effecting the timely payment of
taxes and assessments on the properties subject to the Mortgage Loans shall not,
for the purpose of calculating monthly distributions to Certificateholders, be
added to the amount owing under the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit, and such costs shall be recoverable
by the Servicer to the extent permitted by Section 3.04. The Servicer shall
collect such amounts from the Mortgagor and shall credit the Mortgage Loan
Payment Record accordingly.
(f) If the Servicer enters into a servicing agreement with any servicer (a
"Primary Servicer") pursuant to which such Primary Servicer shall directly
service certain Mortgage Loans and the Company shall perform master servicing
with respect thereto, the Servicer shall not be released from its obligations to
the Trustee and Certificateholders with respect to the servicing and
administration of the Mortgage Loans in accordance with the provisions of
Article III hereof and such obligations shall not be diminished by virtue of any
such servicing agreement or arrangement and the Servicer shall be obligated to
the same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans. Any amounts received by a
Primary Servicer in respect of a Mortgage Loan shall be deemed to have been
received by the Servicer whether or not actually received by it. Any servicing
agreement that may be entered into and any transactions or services relating to
the Mortgage Loans involving a Primary Servicer in its capacity as such shall be
deemed to be between the Company and the Primary Servicer alone, and the Trustee
and the Certificateholders shall have no claims, obligations, duties or
liabilities with respect thereto. Notwithstanding the foregoing, in the event
the Servicer has been removed as the Servicer hereunder pursuant to Section 6.04
or Section 7.01, the Trustee or any successor Servicer appointed pursuant to
Section 7.02 shall succeed to all of the Servicer's rights and interests (but
not to any obligations or liabilities of the Servicer arising prior to the date
of succession) under any servicing agreement with any Primary Servicer in
respect of the Mortgage Loans, subject to the limitation on the Trustee's
responsibilities under Section 7.02.
(g) In no event shall any collateral fund established under the agreement
referred to in Section 3.08(e) constitute an asset of any REMIC established
hereunder.
Section 3.02. Collection of Certain Mortgage Loan Payments; Mortgage Loan
Payment Record; Certificate Account. (a) The Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Mortgage Loans, and shall, to the extent such procedures shall be consistent
with this Agreement, follow such collection procedures as it follows with
respect to mortgage loans comparable to the Mortgage Loans in its servicing
portfolio. Consistent with the foregoing, the Servicer may in its discretion (i)
waive any late payment charge or any assumption fees or other fees which may be
collected in the ordinary course of servicing such Mortgage Loan and (ii) if a
default on the Mortgage Loan has occurred or is reasonably foreseeable, arrange
at any time prior to foreclosure with a Mortgagor a schedule for the payment of
due and unpaid principal and interest for a period extending not longer than two
years after the date that such schedule is arranged. Any arrangement of the sort
described in clause (ii) above shall not affect the amount or timing of the
Servicer's obligation to make Monthly Advances with respect to any Mortgage Loan
which Monthly Advances shall be made pursuant to the original amortization
schedule applicable to such Mortgage Loan.
(b) The Servicer shall establish and maintain a Mortgage Loan Payment
Record in which the following payments on and collections in respect of each
Mortgage Loan shall as promptly as practicable be credited by the Servicer for
the account of the Holders of the Certificates:
(i) All payments on account of principal, including Principal
Prepayments (other than (A) payments of principal due and payable on
the Mortgage Loans on or before, and all Principal Prepayments
received before, the Cut-off Date, (B) in the case of a substitute
Mortgage Loan, payments of principal due and payable on such Mortgage
Loan on or before the Determination Date in the month of substitution,
and all Principal Prepayments received before the first day of the
month of substitution, and (C) in the case of a replaced Mortgage
Loan, payments of principal due and payable on such Mortgage Loan
after the Determination Date in the month of substitution, and all
Principal Prepayments received in the month of substitution);
(ii) All payments (other than (A) those due and payable on or
before the Cut-off Date, (B) in the case of a substitute Mortgage
Loan, those due and payable on such Mortgage Loan on or before the
Determination Date in the month of substitution, and (C) in the case
of a replaced Mortgage Loan, those due and payable on such Mortgage
Loan after the Determination Date in the month of substitution) on
account of interest at the applicable Remittance Rate on the Mortgage
Loan received from the related Mortgagor, including any Buydown Funds
applied with respect to interest at the applicable Remittance Rate on
any Buydown Mortgage Loan;
(iii) All Liquidation Proceeds received by the Servicer with
respect to such Mortgage Loan and the Purchase Price for any Mortgage
Loan purchased by the Servicer pursuant to Sections 2.02, 2.03 and
3.16 (including any amounts received in respect of a substitution of a
Mortgage Loan);
(iv) All Insurance Proceeds (including, for this purpose, any
amounts required to be credited by the Servicer pursuant to the last
sentence of Section 3.06) received by the Servicer for the benefit of
the Trust Fund, other than proceeds to be applied to the restoration
or repair of the property subject to the related Mortgage or released,
or to be released, to the related Mortgagor in accordance with the
normal servicing procedures of the Servicer;
(v) All REO Proceeds;
(vi) All Unanticipated Recoveries; and
(vii) All amounts received by the Servicer with respect to any
Pledged Asset Mortgage Loan pursuant to the liquidation of any
Additional Collateral or pursuant to any recovery under the Surety
Bond in accordance with Section 4.09.
The foregoing requirements respecting credits to the Mortgage Loan Payment
Record are exclusive, it being understood that, without limiting the generality
of the foregoing, the Servicer need not enter in the Mortgage Loan Payment
Record collections, Liquidation Proceeds or Insurance Proceeds in respect of
Mortgage Loans which have been previously released from the terms of this
Agreement, amounts representing fees or late charge penalties payable by
Mortgagors, or amounts received by the Servicer for the account of Mortgagors
for application towards the payment of taxes, insurance premiums, assessments
and similar items.
(c) Subject to subsection (e) below, until the Business Day prior to each
Distribution Date on which amounts are required to be transferred to the
Certificate Account pursuant to subsection (d) of this Section 3.02, the
Servicer may retain and commingle such amounts with its own funds and shall be
entitled to retain for its own account any gain or investment income thereon,
and any such investment income shall not be subject to any claim of the Trustee
or Certificateholders. To the extent that the Servicer realizes any net loss on
any such investments, the Servicer shall deposit in the Certificate Account an
amount equal to such net loss at the time the Servicer is required to deposit
amounts in the Certificate Account pursuant to subsection (d) of this section
3.02. Any such deposit shall not increase the Servicer's obligation under said
subsection (d).
(d) The Trustee shall establish and maintain with the Trustee in its
corporate trust department a single separate trust account designated in the
name of the Trustee for the benefit of the Holders of the Certificates issued
hereunder (the "Certificate Account") into which the Servicer shall transfer,
not later than 11:00 a.m. New York time on the Business Day prior to each
Distribution Date, an amount in next day funds equal to the sum of Available
Funds for such Distribution Date and any Unanticipated Recoveries received in
the calendar month preceding the month of such Distribution Date. If the Trustee
does not receive such transfer by 2:00 p.m. on such Business Day, it shall give
the Servicer written notice thereof.
(e) If the Servicer or a Responsible Officer of the Trustee obtains actual
notice of or knowledge of the occurrence of either (x) any Trigger Event or (y)
the downgrade by _____ of GECC's short-term senior unsecured debt rating below
A-1+ then, notwithstanding subsection (c) above, the Servicer shall promptly
establish, and thereafter maintain, one or more Eligible Accounts in the name of
the Trustee and bearing a designation indicating that amounts therein are held
for the benefit of the Trustee and the Certificateholders, into which the
Servicer and any Primary Servicer shall deposit within two Business Days after
receipt, all amounts otherwise required to be credited to the Mortgage Loan
Payment Record pursuant to Section 3.02(b); provided, however, that such action
shall not be required if the Servicer delivers to the Trustee a letter from each
Rating Agency to the effect that the failure to take such action will not cause
such Rating Agency to withdraw or reduce its then current ratings of the
Certificates. All amounts so deposited shall be held in trust for the benefit of
Certificateholders. Amounts so deposited may be invested at the written
instruction of the Servicer in Permitted Investments in the name of the Trustee
maturing no later than the Business Day preceding the Distribution Date
following the date of such investment; provided, however, that any such
Permitted Investment which is an obligation of State Street Bank and Trust
Company, in its individual capacity and not in its capacity as Trustee, may
mature on such Distribution Date; and, provided further, that no such Permitted
Investment shall be sold before the maturity thereof if the sale thereof would
result in the realization of gain prior to maturity unless the Servicer has
obtained an Opinion of Counsel that such sale or disposition will not cause the
Trust Fund to be subject to the tax on prohibited transactions under section
860F of the Code, or otherwise subject the Trust Fund to tax or cause the REMIC
[either of the Upper-Tier REMIC or the Lower-Tier REMIC] established hereunder
to fail to qualify as a REMIC. The Trustee shall maintain physical possession of
all Permitted Investments, other than Permitted Investments maintained in
book-entry form. The Servicer shall be entitled to retain for its own account
any gain or other income from Permitted Investments, and neither the Trustee nor
Certificateholders shall have any right or claim with respect to such income.
The Servicer shall deposit an amount equal to any loss realized on any Permitted
Investment as soon as any such loss is realized. If the provisions in this
subsection (e) become operable, references in this Agreement to the Mortgage
Loan Payment Record and credits and debits to such Record shall be deemed to
refer to Eligible Accounts and transfers to and withdrawals from such Eligible
Accounts. Any action which may be necessary to establish the terms of an account
pursuant to this Section 3.02(e) may be taken by an amendment or supplement to
this Agreement or pursuant to a written order of the Company, which amendment,
supplement or order shall not require the consent of Certificateholders,
provided that the Servicer has delivered to the Trustee a letter from each
Rating Agency to the effect that such amendment, supplement or order will not
cause such Rating Agency to withdraw or reduce its then current ratings of the
Certificates.
Section 3.03. Collection of Taxes, Assessments and Other Items. Other than
with respect to any Cooperative Loan, the Servicer shall establish and maintain
with one or more depository institutions one or more accounts into which it
shall deposit all collections of taxes, assessments, private mortgage or hazard
insurance premiums or comparable items for the account of the Mortgagors. As
servicer, the Servicer shall effect the timely payment of all such items for the
account of Mortgagors. Withdrawals from such account or accounts may be made
only to effect payment of taxes, assessments, private mortgage or standard
hazard insurance premiums or comparable items, to reimburse the Servicer out of
related collections for any payments made regarding taxes and assessments or for
any payments made pursuant to Section 3.05 regarding premiums on Primary
Insurance Policies and Section 3.06 regarding premiums on standard hazard
insurance policies, to refund to any Mortgagors any sums determined to be
overages, or to pay interest owed to Mortgagors to the extent required by law.
Section 3.04. Permitted Debits to the Mortgage Loan Payment Record. The
Servicer (or any successor servicer pursuant to Section 7.02) may, from time to
time, make debits to the Mortgage Loan Payment Record for the following
purposes:
(i) To reimburse the Servicer or the applicable Primary Servicer
for Liquidation Expenses theretofore incurred in respect of any
Mortgage Loan in an amount not to exceed the amount of the related
Liquidation Proceeds credited to the Mortgage Loan Payment Record
pursuant to Section 3.02(b)(iii); provided that the Servicer or the
applicable Primary Servicer shall not be entitled to reimbursement for
Liquidation Expenses incurred after the initiation of foreclosure
proceedings in respect of any Defaulted Mortgage Loan that is
repurchased pursuant to Section 3.16;
(ii) To reimburse the Servicer or the applicable Primary Servicer
for Insured Expenses and amounts expended by it pursuant to Section
3.08 in good faith in connection with the restoration of property
damaged by an Uninsured Cause, in an amount not to exceed the amount
of the related Insurance Proceeds and Liquidation Proceeds (net of any
debits pursuant to clause (i) above) and amounts representing proceeds
of other insurance policies covering the property subject to the
related Mortgage credited to the Mortgage Loan Payment Record pursuant
to Section 3.02(b) (iii) and (iv);
(iii) To reimburse the Servicer to the extent permitted by
Sections 3.01(a) and 6.04;
(iv) To pay to the Servicer amounts received in respect of any
Defective Mortgage Loan or Defaulted Mortgage Loan purchased by the
Company to the extent that the distribution of any such amounts on the
Distribution Date upon which the proceeds of such purchase are
distributed would make the total amount distributed in respect of any
such Mortgage Loan on such Distribution Date greater than the Purchase
Price therefor, net of any unreimbursed Monthly Advances made by the
Servicer;
(v) To reimburse the Servicer (or the Trustee, as applicable) for
Monthly Advances theretofore made in respect of any Mortgage Loan to
the extent of late payments, REO Proceeds, Insurance Proceeds and
Liquidation Proceeds in respect of such Mortgage Loan;
(vi) To reimburse the Servicer from any Mortgagor payment of
interest or other recovery with respect to a particular Mortgage Loan,
to the extent not previously retained by the Servicer, for unpaid
Servicing Fees with respect to such Mortgage Loan, subject to Section
3.08(d);
(vii) To reimburse the Servicer (or the Trustee, as applicable)
for any Nonrecoverable Advance (which right of reimbursement of the
Trustee pursuant to this clause shall be prior to such right of the
Servicer);
(viii) To make transfers of funds to the Certificate Account
pursuant to Section 3.02(d); and
(ix) To deduct any amount credited to the Mortgage Loan Payment
Record in error.
The Servicer shall keep and maintain separate accounting records, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for debits
to the Mortgage Loan Payment Record pursuant to clauses (i), (ii), (iv), (v) and
(vi) of this Section 3.04; provided, however, that it is understood and agreed
that the records of such accounting need not be retained by the Servicer for a
period longer than the five most recent fiscal years.
Section 3.05. Maintenance of the Primary Insurance Policies. (a) The
Servicer shall not take any action which would result in non-coverage under any
applicable Primary Insurance Policy of any loss which, but for the actions of
the Servicer, would have been covered thereunder. To the extent coverage is
available, the Servicer shall keep or cause to be kept in full force and effect
each such Primary Insurance Policy until the principal balance of the related
Mortgage Note is 80% or less of the greater of (i) the related Original Value
and (ii) the then current value of the property underlying the related Mortgage
Note as evidenced by an appraisal thereof satisfactory to the Servicer; provided
that no such Primary Insurance Policy need be kept in effect if doing so would
violate applicable law. The Servicer shall not cancel or refuse to renew any
such Primary Insurance Policy applicable to a Mortgage Loan that is in effect at
the Closing Date and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy is
maintained with an insurer whose claims-paying ability is acceptable to each
Rating Agency for mortgage pass-through certificates having ratings equal to or
better than the ratings then assigned to the Certificates by such Rating Agency.
The Servicer agrees to effect the timely payment of the premium on each Primary
Insurance Policy, and such costs not otherwise recoverable shall be recoverable
by the Servicer from related Insurance Proceeds and Liquidation Proceeds
pursuant to Section 3.04.
(b) In connection with its activities as administrator and servicer of the
Mortgage Loans, the Servicer agrees to present, on behalf of itself, the Trustee
and the Certificateholders, claims to the insurer under each Primary Insurance
Policy and, in this regard, to take such reasonable action as shall be necessary
to permit recovery under any Primary Insurance Policy respecting a related
defaulted Mortgage Loan. To the extent provided in Section 3.02(b), any amounts
collected by the Servicer under any Primary Insurance Policy in respect of the
Mortgage Loans (including, without limitation, a Mortgage Loan purchased by a
related insurer) shall be credited to the Mortgage Loan Payment Record.
Section 3.06. Maintenance of Hazard Insurance. The Servicer shall cause to
be maintained for each Mortgage Loan, other than a Cooperative Loan, hazard
insurance with a standard mortgagee clause and with extended coverage in an
amount which is at least equal to the maximum insurable value of the
improvements securing such Mortgage Loan from time to time or the principal
balance owing on such Mortgage Loan from time to time, whichever is less. The
Servicer shall also maintain on property (other than Cooperative Apartments)
acquired upon foreclosure, or by deed in lieu of foreclosure, hazard insurance
with extended coverage in an amount which is at least equal to the lesser of (i)
the maximum insurable value from time to time of the improvements which are a
part of such property or (ii) the unpaid principal balance of such Mortgage Loan
at the time of such foreclosure or deed in lieu of foreclosure plus accrued
interest and the good-faith estimate of the Servicer of related Liquidation
Expenses to be incurred in connection therewith. To the extent provided in
Section 3.02(b)(iv), amounts collected by the Servicer under any such policies
in respect of the Mortgage Loans shall be credited to the Mortgage Loan Payment
Record. Such costs shall be recoverable by the Servicer pursuant to Sections
3.03 and 3.04. In cases in which property securing any Mortgage Loan other than
a Cooperative Loan is located in a federally designated flood area, the hazard
insurance to be maintained for such Mortgage Loan shall include flood insurance.
All such flood insurance shall be in such amounts as are required under
applicable guidelines of FNMA. The Servicer shall be under no obligation to
require that any Mortgagor maintain earthquake or other additional insurance and
shall be under no obligation itself to maintain any such additional insurance on
property acquired in respect of a Mortgage Loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Servicer shall obtain and maintain a
blanket policy insuring against hazard losses on all of the Mortgage Loans
(whether or not including Cooperative Loans), it shall conclusively be deemed to
have satisfied its obligations as set forth in the first sentence of this
Section 3.06, it being understood and agreed that such policy may contain a
deductible clause, in which case the Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property a policy
complying with the first sentence of this Section 3.06, and there shall have
been a loss which would have been covered by such policy, credit to the Mortgage
Loan Payment Record the amount not otherwise payable under the blanket policy
because of such deductible clause.
Section 3.07. Assumption and Modification Agreements. (a) In any case in
which property subject to a Mortgage has been or is about to be conveyed by the
Mortgagor, the Servicer shall exercise its right to accelerate the maturity of
such Mortgage Loan under any "due-on-sale" clause applicable thereto, unless in
the reasonable discretion of the Servicer, such exercise would adversely affect
or jeopardize coverage under the related Primary Insurance Policy, if any;
provided, however, that if the Servicer is prevented, as provided in Section
3.07(b), from enforcing any such clause, the Servicer is authorized to make or
enter into an assumption and modification agreement from or with the Person to
whom such property has been or is about to be conveyed, pursuant to which such
Person becomes liable under the Mortgage Note and the Mortgagor remains liable
thereon. In connection with any such assumption and modification agreement, the
Servicer shall apply its then current underwriting standards to such Person. The
Servicer shall not make or enter into any such assumption and modification
agreement, however, unless (to the extent practicable in the circumstances) it
shall have received confirmation of the continued effectiveness of any
applicable Primary Insurance Policy and hazard insurance policy. The Servicer
shall notify the Trustee that any assumption and modification agreement has been
completed by forwarding to the Trustee the original copy thereof, which copy
shall be added by the Trustee to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. In connection with
any such agreement, the Mortgage Rate, mortgage term and any other material term
of such Mortgage Loan shall not be changed. Any fee collected by the Servicer
for entering into any such agreement will be retained by the Company as
additional servicing compensation.
(b) Notwithstanding Section 3.07(a) or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan, or transfer of the property subject to a Mortgage without the
assumption thereof, by operation of law or any assumption or transfer which the
Servicer reasonably believes it may be restricted by law from preventing, for
any reason whatsoever.
Section 3.08. Realization Upon Defaulted Mortgage Loans. (a) The Servicer
shall foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.02. In connection with such foreclosure or other
conversion the Servicer shall, consistent with Section 3.05, follow such
practices and procedures as it shall deem necessary or advisable and as shall be
normal and usual in its general mortgage servicing activities. The foregoing is
subject to the proviso that the Servicer shall not be required to expend its own
funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Certificateholders
after reimbursement to itself for such expenses and (ii) that such expenses will
be recoverable to it either through Liquidation Proceeds or Insurance Proceeds.
Notwithstanding the foregoing, the Servicer shall not be entitled to recover
legal expenses incurred in connection with foreclosure proceedings where the
Mortgage Loan is reinstated and such foreclosure proceedings are terminated
prior to completion, other than sums received from the Mortgagor for such
expenses.
Notwithstanding anything to the contrary contained herein, the Servicer
shall be under no obligation to foreclose upon or otherwise convert the
ownership of any Mortgaged Property which it believes may be contaminated with
or affected by hazardous or toxic wastes, materials or substances. The Servicer
may, but shall not be obligated to, make such determination on the basis of a
Phase I environmental assessment with respect to the related Mortgaged Property.
Neither the Trustee nor the Company shall be liable to the Trust Fund or the
Certificateholders if, based on the Servicer's belief that such contamination or
effect exists, the Servicer does not foreclose upon or otherwise convert the
ownership of a Mortgaged Property. In addition, neither the Trustee nor the
Servicer shall be liable to the Trust Fund or the Certificateholders if, based
on the Servicer's belief that no such contamination or effect exists, the
Servicer forecloses upon a Mortgaged Property and the Trustee or its nominee on
behalf of the Trust Fund takes title to such Mortgaged Property, and thereafter
such Mortgaged Property is determined to be so contaminated or affected.
(b) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee on behalf of the Trust Fund.
Notwithstanding any such acquisition of title and cancellation of the related
Mortgage Loan, such Mortgage Loan shall (except for purposes of Section 9.01) be
considered to be an Outstanding Mortgage Loan until such time as the Mortgaged
Property shall be sold and such Mortgage Loan becomes a Liquidated Mortgage
Loan. Consistent with the foregoing, for purposes of all calculations hereunder
so long as such Mortgage Loan shall be considered to be an Outstanding Mortgage
Loan, it shall be assumed that the related Mortgage Note and its amortization
schedule in effect on and after such acquisition of title (after giving effect
to any previous Principal Prepayments and Deficient Valuations incurred
subsequent to the related Bankruptcy Coverage Termination Date and before any
adjustment thereto by reason of any bankruptcy (other than as aforesaid) or any
similar proceeding or any moratorium or similar waiver or grace period) remain
in effect (notwithstanding that the indebtedness evidenced by such Mortgage Note
shall have been discharged), subject to adjustment to reflect the application of
REO Proceeds received in any month. REO Proceeds received in any month shall be
applied to the payment of the installments of principal due and interest accrued
on the related REO Mortgage Loan in accordance with the terms of such Mortgage
Note. REO Proceeds received in any month in excess of the Amortization Payment
for such month due on an REO Mortgage Loan shall be treated as a Principal
Prepayment received in respect of such Mortgage Loan.
(c) In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Servicer shall dispose of such Mortgaged Property prior to
the close of the third calendar year after the year of its acquisition by the
Trust Fund unless (a) the Trustee shall have been supplied with an Opinion of
Counsel to the effect that the holding by the Trust Fund of such Mortgaged
Property subsequent to such period (and specifying the period beyond such period
for which the Mortgaged Property may be held) will not result in the imposition
of taxes on "prohibited transactions" of the Trust Fund as defined in section
860F of the Code, or cause the REMIC [either of the Upper-Tier REMIC or the
Lower-Tier REMIC] established hereunder to fail to qualify as a REMIC at any
time that any Certificates are outstanding, in which case the Trust Fund may
continue to hold such Mortgaged Property (subject to any conditions contained in
such Opinion of Counsel), or (b) the Trustee (at the Depositor's expense) or the
Servicer shall have applied for, not later than 61 days prior to the expiration
of such period, an extension of such period in the manner contemplated by
section 856(e)(3) of the Code, in which case such period shall be extended by
the time period permitted by section 856(e)(3) of the Code. Notwithstanding any
other provision of this Agreement, no Mortgaged Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used for
the production of income by or on behalf of the Trust Fund or sold in such a
manner or pursuant to any terms that would (1) cause such Mortgaged Property to
fail to qualify at any time as "foreclosure property" within the meaning of
section 860G(a)(8) of the Code, (ii) subject the Trust Fund to the imposition of
any federal or state income taxes on "net income from foreclosure property" with
respect to such Mortgaged Property within the meaning of section 860G(c) of the
Code, or (iii) cause the sale of such Mortgaged Property to result in the
receipt by the Trust Fund of any income from non-permitted assets as described
in section 860F(a)(2)(B) of the Code, unless the Servicer has agreed to
indemnify and hold harmless the Trust Fund with respect to the imposition of any
such taxes.
(d) Any collection of Insurance Proceeds or Liquidation Proceeds will be
applied in the following order of priority: first, to reimburse the Servicer for
any related unreimbursed Liquidation Expenses and to reimburse the Servicer or
the Trustee, as applicable, for any related unreimbursed Monthly Advances;
second, to accrued and unpaid interest on the Mortgage Loan at the Mortgage Rate
from the date to which interest was last paid or advanced to the Due Date prior
to the Distribution Date on which such amounts are to be distributed; and third,
as a recovery of principal of the Mortgage Loan. If the amount so allocated to
interest is less than the full amount of accrued and unpaid interest due on such
Mortgage Loan, the amount of such recovery will be allocated among the [Base
Servicing Fee at the Base Servicing Fee Rate, the Supplemental Servicing Fee at
the Supplemental Servicing Fee Rate] and interest at the Remittance Rate in
proportion to the amount of such accrued interest which would have been
allocated to each such category in the absence of any shortfall. The resulting
Interest Loss shall be allocated among each such category in the same proportion
as described in the preceding sentence. The portion so allocated to interest at
the Remittance Rate shall be allocated to the Certificates for purposes of
making the allocation specified in the definition of Certificate Interest Loss.
(e) Notwithstanding anything to the contrary contained herein, the Servicer
shall have the right to enter into an agreement substantially in the form of
Exhibit K hereto with any Person that is the Holder of 100% of the Class _____
Certificates (provided that such form may be revised to delete the option on the
part of such Person to purchase a defaulted Mortgage Loan as set forth in
Section 2.02(f) thereof). Prior to entering into any such agreement with any
Person, the Servicer shall obtain a certification from such Person to the effect
that (ii) such Person is not an "affiliate" (within the meaning of the
Prohibited Transaction Exemption) of the Trustee and (ii) such Person will not
purchase any Certificates if such purchase would cause such Person to hold more
than a ten percent interest in the Mortgage Pool. It is understood that the
right of the Servicer to be reimbursed for Monthly Advances and Nonrecoverable
Advances under this Agreement shall not be affected in any way by the provisions
of any such agreement. The Trustee hereby agrees to perform such obligations as
may be expressly required of it pursuant to the provisions of such agreement and
to promptly notify each party to such agreement if a Responsible Officer of the
Trustee (with direct responsibility for administration of this Agreement)
becomes aware of any discussions, plans or events that might lead to the
Trustee's becoming an "affiliate" (within the meaning of the Prohibited
Transaction Exemption) of any Person with which the Servicer has entered into
such agreement, provided that the contents of any such notification shall be
kept confidential by the parties to such agreement. The Servicer agrees to
promptly notify the Trustee upon entering into any such agreement. In addition,
the Servicer shall provide the Trustee with such information as may be necessary
for the Trustee to perform its obligations thereunder, including written
instructions, clearly identifying the source, amount and application of funds to
be deposited or withdrawn from the Collateral Fund (as defined in such
agreement). The Trustee shall provide the Servicer with such information
concerning credits and debits to the Collateral Fund on account of income, gains
and losses realized from Collateral Fund Permitted Investments (as defined in
such agreement), and costs associated with the purchase and sale thereof, as the
Servicer may request in order to prepare the instructions described in the
preceding sentence.
In addition, subject to the provisions of the preceding paragraph, the
Servicer shall have the right to enter into an agreement substantially in the
form of Exhibit K hereto with the Person that is the Holder of 100% of the Class
_____ Certificates, provided that (i) such Person is also the Holder of 100% of
the Class _____ Certificates, (ii) such Person shall have no rights under such
agreement until the date on which the Class Certificate Principal Balance of the
Class _____ Certificates has been reduced to zero, and (iii) any rights of such
Person under such agreement shall terminate in the event that such Person
transfers, directly or indirectly, the Class _____ Certificates to any other
Person.
Section 3.09. Trustee to Cooperate; Release of Mortgage Files. Upon the
payment in full of any Mortgage Loan, the Servicer will immediately notify the
Trustee by a certification (which certification shall include a statement to the
effect that all amounts received in connection with such payment which are
required to be credited to the Mortgage Loan Payment Record pursuant to Section
3.02 have been so credited) of a Servicing Officer and shall request delivery to
it of the Mortgage File. If a Buydown Mortgage Loan is the subject of a
Principal Prepayment in full during the related Buydown Period, the related
Buydown Funds will be applied or returned to the Person entitled thereto in
accordance with the terms of such Buydown Mortgage Loan. Upon receipt of such
certification and request in form satisfactory to the Trustee, the Trustee shall
promptly, but in any event within five Business Days, release the related
Mortgage File to the Servicer; provided, that the Trustee shall not be
responsible for any delay in the release of a Mortgage File resulting from acts
beyond its control, including without limitation, acts of God, strikes,
lockouts, riots, acts of war or terrorism, epidemics, nationalization,
governmental regulations imposed after the fact, fire, communication line
failures, computer viruses, power failures, earthquakes or other disasters. Upon
any such payment in full, the Servicer is authorized to execute, pursuant to the
authorization contained in Section 3.01, an instrument of satisfaction regarding
such Mortgage, which instrument of satisfaction shall be recorded by the
Servicer if required by applicable law and be delivered to the Person entitled
thereto, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction shall be reimbursed from amounts at the
time credited to the Mortgage Loan Payment Record. From time to time and as
appropriate for the servicing or foreclosure of any Mortgage Loan (including,
without limitation, collection under any Primary Insurance Policy), the Trustee
shall, upon request of the Servicer and delivery to the Trustee of a receipt
signed by a Servicing Officer, release the related Mortgage File to the Servicer
and shall execute such documents as shall be necessary to the prosecution of any
such proceedings. Such receipt shall obligate the Servicer to return the
Mortgage File to the Trustee when the need therefor by the Servicer no longer
exists unless the Mortgage Loan shall be liquidated, in which case, upon receipt
of a certificate of a Servicing Officer similar to that hereinabove specified,
the receipt shall be released by the Trustee to the Servicer.
Section 3.10. Servicing Compensation; Payment of Certain Expenses by the
Servicer. (a) As compensation for its activities and obligations hereunder, the
Servicer shall be entitled to withhold and pay to itself out of each payment
received by it on account of interest on each Mortgage Loan (including the
portion of any Buydown Funds applied to the related Buydown Mortgage Loan for
the applicable period) an amount equal to the Servicing Fee. The aggregate of
the Servicing Fees payable to the Servicer on any Distribution Date shall be
reduced by the amount of any Compensating Interest Payment for such Distribution
Date. Additional servicing compensation in the form of Prepayment Interest
Excess, assumption fees, modification fees, late payment charges, interest
income or gain with respect to amounts deposited in the Certificate Account and
invested by the Servicer or otherwise shall be retained by the Company, subject
to Section 3.10(b), if applicable. The Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder (including
payment of Trustee fees and all other fees and expenses not expressly stated
hereunder to be for the account of the Certificateholders) and shall not be
entitled to reimbursement therefor except as provided in Sections 3.01, 3.03,
3.04 and 3.08.
(b) The Servicer may, as a condition to granting any request by a Mortgagor
for any consent, modification, waiver or amendment or any other matter or thing,
the granting of which is in the Servicer's discretion pursuant to the terms of
the instruments evidencing or securing the related Mortgage Loan and is
permitted by other sections of this Agreement, require (to the extent permitted
by applicable law) that such Mortgagor pay to it a reasonable or customary fee
in accordance with the schedule set forth as Exhibit H (which may be amended
from time to time by provision of a revised schedule of such fees to the
Trustee, whereupon such revised schedule shall be deemed to be Exhibit H
hereunder) for the additional services performed in connection with such
request, together with any related costs and expenses incurred by it. Such fees
shall be additional servicing compensation to the Servicer.
Section 3.11. Reports to the Trustee; Certificate Account Statements. Not
later than 15 days after each Distribution Date, the Servicer shall forward to
the Trustee a statement, certified by a Servicing Officer, setting forth the
status of the Mortgage Loan Payment Record as of the close of business on such
Distribution Date and showing, for the period covered by such statement, the
aggregate of credits to the Mortgage Loan Payment Record for each category of
credit specified in Section 3.02 and each category of debit specified in Section
3.04.
Section 3.12. Annual Statement as to Compliance. The Servicer will deliver
to the Trustee, on or before March 31 of each year, beginning with March 31, ,
an Officer's Certificate stating that (a) a review of the activities of the
Servicer during the preceding calendar year and of its performance under this
Agreement has been made under such Officer's supervision and (b) to the best of
such Officer's knowledge, based on such review, the Servicer has fulfilled all
its material obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such Officer and the nature and status thereof.
Section 3.13. Annual Independent Public Accountants' Servicing Report. On
or before March 31 of each year, beginning with March 31, _____, the Servicer
shall:
(a) furnish to a firm of independent public accountants (which may also
render other services to the Servicer) a statement substantially to the effect
that the Servicer has complied in all material respects with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers (the "Minimum Servicing Standards") with respect to the
mortgage loans in the Servicer's servicing portfolio (which may exclude home
equity loans) or, if there has been material noncompliance with such servicing
standards, containing a description of such noncompliance; and
(b) at its expense cause such firm of independent public accountants to
furnish a report to the Trustee stating its opinion as to the Servicer's
assertion contained in the statement delivered pursuant to Section 3.13(a),
which opinion shall be based on an examination conducted by such firm in
accordance with the standards established by the American Institute of Certified
Public Accountants, including examining, on a test basis, evidence about the
Servicer's compliance with the Minimum Servicing Standards. Such opinion shall
be to the effect that the Servicer has complied in all material respects with
the Minimum Servicing Standards with respect to the mortgage loan portfolio
described in the Company's statement delivered pursuant to Section 3.13(a)
hereof or if there has been material noncompliance with the Minimum Servicing
Standards, shall contain a description of such noncompliance in accordance with
applicable accounting standards. In rendering such report, such firm may rely,
as to matters relating to direct servicing of Mortgage Loans by any primary
servicer, upon comparable reports of independent public accountants with respect
to such primary servicer.
Section 3.14. Access to Certain Documentation and Information Regarding the
Mortgage Loans. To the extent permitted by applicable law, the Servicer shall
provide to the Trustee, Certificateholders which are regulated insurance
entities and the applicable insurance regulatory agencies thereof,
Certificateholders which are federally insured savings and loan associations,
the Office of Thrift Supervision, the FDIC and the supervisory agents and
examiners thereof access to the documentation regarding the Mortgage Loans
required by applicable regulations of the Office of Thrift Supervision or of
such insurance regulatory agencies, as the case may be, such access being
afforded without charge but only upon reasonable request and during normal
business hours at the offices of the Servicer. Nothing in this Section 3.14
shall derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Servicer to provide access as provided in this Section 3.14 as a result
of such obligation shall not constitute a breach of this Section 3.14.
Section 3.15. Maintenance of Certain Servicing Policies. The Servicer shall
during the term of its service as servicer maintain in force (i) a policy or
policies of insurance covering errors and omissions in the performance of its
obligations as servicer hereunder and (ii) a fidelity bond in respect of its
officers, employees or agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA for persons
performing servicing for mortgage loans purchased by such association.
Section 3.16. Optional Purchase of Defaulted Mortgage Loans. The Servicer
shall have the right, but not the obligation, to purchase any Defaulted Mortgage
Loan for a price equal to the Purchase Price therefor. Any such purchase shall
be accomplished as provided in Section 4.04(a) hereof.
ARTICLE IV
PAYMENTS AND STATEMENTS
Section 4.01. Distributions. (a) On each Distribution Date, the Trustee
shall withdraw the Available Funds from the Certificate Account and shall make
distributions to Holders of the Certificates as of the preceding Record Date in
the following order of priority, to the extent of the remaining Available Funds:
(i) to each Class of Senior Certificates (other than any Class of
Principal Only Certificates), the Accrued Certificate Interest thereon
for such Distribution Date; provided, however, that any shortfall in
available amounts shall be allocated among such Classes in proportion
to the amount of Accrued Certificate Interest that would otherwise be
distributable thereto;
(ii) to each Class of Senior Certificates (other than any Class
of Principal Only Certificates), any related Unpaid Class Interest
Shortfall for such Distribution Date; provided, however, that any
shortfall in available amounts shall be allocated among such Classes
in proportion to the Unpaid Class Interest Shortfall for each such
Class on such Distribution Date;
(iii) to the Classes of Senior Certificates in reduction of the
Class Certificate Principal Balances thereof, as set forth in Exhibit
O hereto;
[(iv) to the Class PO Certificates, any Class PO Deferred Amount
for such Distribution Date, up to an amount not to exceed the Junior
Optimal Principal Amount for such Distribution Date, until the Class
Certificate Principal Balance of such Class has been reduced to zero;
provided, that any such amounts distributed to the Class PO
Certificates pursuant to this clause (iv) shall not reduce the Class
Certificate Principal Balance thereof;]
[description of distributions of interest and principal on Junior
Certificates.]
[Notwithstanding the foregoing, amounts otherwise distributable pursuant to
clauses [Junior Certificate distributions of principal] shall be reduced, in
inverse order of priority, by any amount distributed pursuant to clause (iv) on
such date, such that such amount distributed pursuant to clause (iv) on such
date shall be applied [in inverse order of priority among Junior Classes].]
(b) On each Distribution Date, the Trustee shall distribute to the holder
of the Class R Certificate any remaining Available Funds [amounts in the
Upper-Tier REMIC] for such Distribution Date after application of all amounts
described in clause (a) of this Section 4.01, together with any Unanticipated
Recoveries received by the Company in the calendar month preceding the month of
such Distribution Date and not distributed on such Distribution Date to the
holders of outstanding Certificates of any other Class pursuant to Section
4.01(f). Any distributions pursuant to this clause (b) shall not reduce the
Class Certificate Principal Balance of the Class R Certificate.
(c) If on any Distribution Date the Class Certificate Principal Balances of
the Junior Certificates have each been reduced to zero, the amount distributable
to the Senior Certificates other than the Class PO Certificates pursuant to
Section 4.01(a)(iii) for such Distribution Date and each succeeding Distribution
Date shall be allocated among such Classes of Senior Certificates, pro rata, on
the basis of their respective Class Certificate Principal Balances immediately
prior to such Distribution Date, regardless of the priorities and amounts set
forth in Section 4.01(a)(iii).
(d) If on any Distribution Date (i) the Class Certificate Principal Balance
of the Class _____ Certificates or any Class of Class _____ Certificates for
which the related Prepayment Distribution Trigger was satisfied on such
Distribution Date is reduced to zero and (ii) amounts distributable pursuant to
clauses (ii), (iv) and (v) of the Junior Optimal Principal Amount remain
undistributed on such Distribution Date after all amounts otherwise
distributable on such date pursuant to clauses (iv) through (xxii) of Section
4.01(a) have been distributed, such amounts shall be distributed on such
Distribution Date to the remaining Classes of Junior Certificates in order of
priority, such that no such distribution shall be made to any Class of Junior
Certificates while a prior such Class is outstanding.
(e) [Description of distributions on any Accrual Certificates or Accrual
Components.]
(f) In the event that in any calendar month the Servicer recovers an amount
(an "Unanticipated Recovery") in respect of principal of a Mortgage Loan which
had previously been allocated as a Realized Loss to any Class of Certificates
pursuant to Section 4.03, on the Distribution Date in the next succeeding
calendar month the Trustee shall withdraw from the Certificate Account and
distribute to the holders of each outstanding Class to which such Realized Loss
had previously been allocated its share (determined as described in the
succeeding paragraph) of such Unanticipated Recovery in an amount not to exceed
the amount of such Realized Loss previously allocated to such Class. When the
Class Certificate Principal Balance of a Class of Certificates has been reduced
to zero, the holders of such Class shall not be entitled to any share of an
Unanticipated Recovery, and such Unanticipated Recovery shall be allocated among
all outstanding Classes of Certificates entitled thereto in accordance with the
preceding sentence, subject to the remainder of this subsection (f). In the
event that (1) any Unanticipated Recovery remains undistributed in accordance
with the preceding sentence or (ii) the amount of an Unanticipated Recovery
exceeds the amount of the Realized Loss previously allocated to any outstanding
Classes with respect to the related Mortgage Loan, on the applicable
Distribution Date the Trustee shall distribute to the holders of all outstanding
Classes of the related Certificates to which Realized Losses had previously been
allocated and not reimbursed their pro rata share (determined as described
below) of such excess in an amount not to exceed the aggregate amount of any
Realized Loss previously allocated to such Class with respect to any other
Mortgage Loan that has not been recovered in accordance with this subsection
(f). Any distributions made pursuant to this subsection (f) shall not reduce the
Class Certificate Principal Balance of the related Certificate.
For purposes of the preceding paragraph, the share of an Unanticipated
Recovery allocable to any Class of Certificates with respect to a Mortgage Loan
shall be (i) with respect to the Class PO Certificates, based on the applicable
PO Percentage of the principal portion of the Realized Loss previously allocated
thereto with respect to such Mortgage Loan (or all Mortgage Loans for purposes
of the next to last sentence of the preceding paragraph), and (ii) with respect
to any other Class of Certificates, based on its pro rata share (in proportion
to the Class Certificate Principal Balances thereof with respect to such
Distribution Date) of the applicable Non-PO Percentage of the principal portion
of any such Realized Loss previously allocated with respect to such Mortgage
Loan (or Loans); provided, however, that (i) the share of an Unanticipated
Recovery allocable to a Class PO Certificate with respect to any Mortgage Loan
(or Loans) shall be reduced by the aggregate amount previously distributed to
such Class on account of the applicable Class PO Deferred Amount in respect of
such Mortgage Loan (or Loans) and (ii) the amount by which the distributions to
the Class PO Certificates have been so reduced shall be distributed to the
Classes of Certificates described in clause (ii) of the preceding paragraph in
the same proportion as described in such clause (ii). For purposes of the
preceding sentence, any Class PO Deferred Amount distributed to a Class PO
Certificate on previous Distribution Dates shall be deemed to have been
allocated in respect of the Mortgage Loans as to which the applicable PO
Percentage of the principal portion of Realized Losses has previously been
allocated to such Class on a pro rata basis (based on the amount of Realized
Losses so allocated).
Section 4.02. Method of Distribution. (a) All distributions with respect to
each Class of Certificates on each Distribution Date shall be made pro rata
among the outstanding Certificates of such Class, based on the Percentage
Interest in such Class represented by each Certificate. Payments to the
Certificateholders on each Distribution Date will be made by the Trustee to the
Certificateholders of record on the related Record Date (other than as provided
in Section 9.01 respecting the final distribution) by check or money order
mailed to a Certificateholder at the address appearing in the Certificate
Register, or upon written request by such Certificateholder to the Trustee made
not later than the applicable Record Date, by wire transfer to a U.S. depository
institution acceptable to the Trustee, or by such other means of payment as such
Certificateholder and the Trustee shall agree.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each Financial
Intermediary for which it acts as agent. Each Financial Intermediary shall be
responsible for disbursing funds to the Certificate Owners that it represents.
All such credits and disbursements with respect to a Book-Entry Certificate are
to be made by the Depository and the Depository Participants in accordance with
the provisions of the applicable Certificates. Neither the Trustee nor the
Company shall have any responsibility therefor except as otherwise provided by
applicable law.
(c) The Trustee shall withhold or cause to be withheld such amounts as it
reasonably determines are required by the Code (giving full effect to any
exemptions from withholding and related certifications required to be furnished
by Certificateholders or Certificate Owners and any reductions to withholding by
virtue of any bilateral tax treaties and any applicable certification required
to be furnished by Certificateholders or Certificate Owners with respect
thereto) from distributions to be made to Non-U.S. Persons. If the Trustee
reasonably determines that a more accurate determination of the amount required
to be withheld for a distribution can be made within a reasonable period after
the scheduled date for such distribution, it may hold such distribution in trust
for a holder of a Residual Certificate until such determination can be made. For
the purposes of this paragraph, a "Non-U.S. Person" is (i) an individual other
than a citizen or resident of the United States, (ii) a partnership, corporation
or entity treated as a partnership or corporation for U.S. federal income tax
purposes not formed under the laws of the United States, any state thereof or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations provide otherwise), (iii) any estate, the income of which is not
subject to U.S. federal income taxation, regardless of source, and (iv) any
trust, other than a trust that a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have the authority to control all substantial decisions of the
trust.
Section 4.03. Allocation of Losses. (a) On or prior to each Determination
Date, the Servicer shall determine the amount of any Realized Loss in respect of
each Mortgage Loan that occurred during the immediately preceding calendar
month.
(b) With respect to any Distribution Date, the principal portion of each
Realized Loss (other than any Excess Loss) shall be allocated as follows:
(i) the applicable PO Percentage of the principal portion of any
such Realized Loss shall be allocated to the Class PO Certificates
until the Class Certificate Principal Balance thereof has been reduced
to zero; and
(ii) the applicable Non-PO Percentage of the principal portion of
any such Realized Loss shall be allocated in the following order of
priority:
first, [to the Junior Classes in inverse order of priority];
second, to the Classes of Senior Certificates other than the
Class PO Certificates, pro rata, in accordance with their Class
Certificate Principal Balances; provided, that any such loss allocated
to any Class of Accrual Certificates (and any Accrual Component) shall
be allocated (subject to Section 4.03(d)) on the basis of the lesser
of (x) the Class Certificate Principal Balance (or Component Principal
Balance) thereof immediately prior to the applicable Distribution Date
and (y) the Class Certificate Principal Balance (or Component
Principal Balance) thereof on the Closing Date (as reduced by any
Realized Losses previously allocated thereto).
(c) With respect to any Distribution Date, the principal portion of any
Excess Loss (other than Excess Bankruptcy Losses attributable to Debt Service
Reductions) shall be allocated as follows: (1) the PO Percentage of any such
loss shall be allocated to the Class PO Certificates, and (2) the Non-PO
Percentage of any such loss shall be allocated to each Class of Certificates
other than the Class PO Certificates, pro rata, based on the respective Class
Certificate Principal Balances thereof; provided, that any such loss allocated
to any Class of Accrual Certificates (and any Accrual Component) shall be
allocated (subject to Section 4.03(d)) on the basis of the lesser of (x) the
Class Certificate Principal Balance (or Component Principal Balance) thereof
immediately prior to the applicable Distribution Date and (y) the Class
Certificate Principal Balance (or Component Principal Balance) thereof on the
Closing Date (as reduced by any Realized Losses previously allocated thereto).
(d) Any Realized Losses allocated to a Class of Certificates pursuant to
Section 4.03(b) or (c) shall be allocated among the Certificates of such Class
in proportion to their respective Certificate Principal Balances. In addition,
any Realized Losses allocated to any Class of Component Certificates on a
Distribution Date shall be allocated in reduction of the Component Principal
Balances of the related Components (other than any Notional Component) in
proportion to their respective Component Principal Balances immediately prior to
such Distribution Date. Any allocation of Realized Losses pursuant to this
paragraph (d) shall be accomplished by reducing the Certificate Principal
Balance (or, in the case of any Component, the Component Principal Balance) of
the related Certificates (or Components) on the related Distribution Date in
accordance with Section 4.03(e).
(e) Realized Losses allocated in accordance with this Section 4.03 shall be
allocated on the Distribution Date in the month following the month in which
such loss was incurred and, in the case of the principal portion thereof, after
giving effect to distributions made on such Distribution Date, except that the
aggregate amount of Realized Losses to be allocated to the Class PO Certificates
on such Distribution Date will be taken into account in determining
distributions in respect of any Class PO Deferred Amount for such date.
(f) On each Distribution Date, the Servicer shall determine the Subordinate
Certificate Writedown Amount, if any. Any such Subordinate Certificate Writedown
Amount shall effect a corresponding reduction in the Certificate Principal
Balance of the Subordinate Certificates, which reduction shall occur on such
Distribution Date after giving effect to distributions made on such Distribution
Date.
(g) Notwithstanding the foregoing, no such allocation of any Realized Loss
shall be made on a Distribution Date to a Class of Certificates to the extent
that such allocation would result in the reduction of the aggregate Certificate
Principal Balances of all the Certificates as of such Distribution Date, after
giving effect to all distributions and prior allocations of Realized Losses on
such date, to an amount less than the aggregate Scheduled Principal Balance of
the Mortgage Loans as of the first day of the month of such Distribution Date,
less any Deficient Valuations occurring on or prior to the Bankruptcy Coverage
Termination Date (such limitation, the "Loss Allocation Limitation").
[(h)Any allocation of a Realized Loss to a Class of Certificates (or
Component), or of any Subordinate Certificate Writedown Amount to a Class of
Subordinate Certificates, pursuant to this Section 4.03 shall effect a
corresponding allocation thereof to the corresponding Class of Lower-Tier
Interests and, in the case of the principal portion of any such Realized Loss
and any such Subordinate Certificate Writedown Amount, a corresponding reduction
in the related Lower-Tier Balance thereof.]
Section 4.04. Monthly Advances; Purchases of Defaulted Mortgage Loans. (a)
The Servicer shall be required to make Monthly Advances in the manner and to the
extent provided herein. Prior to the close of business on each Determination
Date, the Servicer shall determine (i) the amount of the Monthly Advance which
it is required to make on the related Distribution Date and (ii) whether it has
elected to purchase any Defaulted Mortgage Loan or Loans on such Distribution
Date. If the Servicer so elects to purchase any Defaulted Mortgage Loans (or is
required to purchase any Mortgage Loan pursuant to Section 2.02 or 2.03(a)), no
Monthly Advance shall be required with respect thereto for the month in which
such purchase occurs. The Servicer shall include information as to each of such
determinations in the Servicer's Certificate furnished by it to the Trustee in
accordance with Section 4.06 and shall be obligated to transfer to the
Certificate Account pursuant to Section 3.02(d) on or before 11:00 a.m. New York
time on the Business Day next preceding the following Distribution Date in
next-day funds the respective amounts applicable to such determinations
appearing in such Servicer's Certificate. Upon receipt by the Trustee of written
notification signed by a Servicing Officer of any such deposit relating to the
purchase by the Servicer of such a Mortgage Loan, the Trustee shall release to
the Servicer the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Servicer any Mortgage Loan released pursuant hereto.
(b) In the event that the Servicer transfers or expects to transfer less
than the Available Funds required to be deposited by it pursuant to Section
3.02(d), the Servicer shall so notify the Trustee no later than 9:00 a.m. on the
Business Day preceding the related Distribution Date, and the amount so
transferred, if any, shall be deemed to have been transferred first pursuant to
clause (i) of the definition of Available Funds, second pursuant to clause (iii)
of the definition of Available Funds, and third pursuant to clause (ii) of the
definition of Available Funds. Such notice shall specify each Mortgage Loan
delinquent as of the preceding Determination Date. In such event, the Trustee
shall make any Monthly Advance required to be made hereunder, in the manner and
to the extent required; provided, the Trustee shall not be so obligated if
prohibited by applicable law.
(c) In the event that the Servicer is succeeded hereunder as servicer, the
obligation to make Monthly Advances in the manner and to the extent required by
Section 4.04(a) shall be assumed by the successor servicer (subject to Section
7.02).
Section 4.05. Statements to Certificateholders. Each month, at least two
Business Days prior to each Distribution Date, the Servicer shall deliver to the
Trustee for mailing to each Certificateholder, and the Trustee shall mail to
each Certificateholder on such Distribution Date, a statement (each, a
"Distribution Date Statement") substantially in the form of Exhibit J hereto,
setting forth:
(i) The amount of such distribution to the Certificateholders of
each Class (and in respect of any Component), other than any Notional
Certificates (and any Notional Component), allocable to principal,
separately identifying the aggregate amount of any Principal
Prepayments included therein (including, for this purpose, the
Scheduled Principal Balances of all Defaulted Mortgage Loans and
Defective Mortgage Loans purchased pursuant to Section 2.02, 2.03(b)
or 3.16, respectively, and any amounts deposited pursuant to Section
2.03(b) in connection with the substitution of any Mortgage Loans
pursuant to Section 2.02 or 2.03(a), the proceeds of which purchases
or substitutions are being distributed on such Distribution Date);
(ii) The amount of such distribution to the Certificateholders of
each Class (other than any Class of Principal Only Certificates)
allocable to interest, including any Accrual Amount added to the Class
Certificate Principal Balance or Component Principal Balance of any
Class of Accrual Certificates or any Accrual Components;
(iii) The amount of servicing compensation paid to the Company
during the month preceding the month of distribution in respect of the
Mortgage Loans and such other customary information as the Company
deems necessary or desirable to enable Certificateholders to prepare
their tax returns;
(iv) The Pool Scheduled Principal Balance and the aggregate
number of the Mortgage Loans on the preceding Due Date after giving
effect to all distributions allocable to principal made on such
Distribution Date;
(v) The Class Certificate Principal Balance (or Notional
Principal Balance) of each Class, the Component Principal Balance of
each Component and the Certificate Principal Balance (or Notional
Principal Balance) of a Single Certificate of each Class after giving
effect to (i) all distributions allocable to principal (or reductions
in the Notional Principal Balance, in the case of the Notional
Certificates, or the addition of any Accrual Amount, in the case of
any Class of Accrual Certificates) made on such Distribution Date and
(ii) the allocation of any Realized Losses and any Subordinate
Certificate Writedown Amount for such Distribution Date;
(vi) The Pay-out Rate applicable to each Class of Certificates;
(vii) The book value and unpaid principal balance of any real
estate acquired on behalf of Certificateholders through foreclosure,
or grant of a deed in lieu of foreclosure or otherwise, of any REO
Mortgage Loan, and the number of the related Mortgage Loans;
(viii) The aggregate Scheduled Principal Balances and number of
Mortgage Loans which, as of the close of business on the last day of
the month preceding the related Distribution Date, were (a) delinquent
as to a total of (x) 30-59 days, (y) 60-89 days and (z) 90 days or
more, and (b) in foreclosure;
(ix) The Scheduled Principal Balance of any Mortgage Loan
replaced pursuant to Section 2.03(b);
(x) The Certificate Interest Rates of any LIBOR Certificates and
any COFI Certificates applicable to the Interest Accrual Period
relating to such Distribution Date and such Class;
(xi) The Senior Percentage, [the Group II Senior Percentage, the
Group II Senior Scheduled Distribution Percentage] and the Junior
Percentage for such Distribution Date;
(xii) The Senior Prepayment Percentage, the Group II Senior
Prepayment Distribution Percentage and the Junior Prepayment
Percentage for such Distribution Date; and
(xiii) The amount of such distribution to the Certificateholders
of each Class allocable to Unanticipated Recoveries.
In the case of information furnished pursuant to clauses (i) through (iii)
above, the amounts shall be expressed as a dollar amount per Single Certificate.
In connection with any proposed transfer of a Certificate that is purported
to be made in reliance on Rule 144A under the Securities Act, the Depositor
shall be responsible for furnishing such information as may be required
thereunder to a proposed transferee. In furtherance of the Depositor's
obligations hereunder, the Depositor hereby instructs the Trustee, at the
Depositor's expense and on its behalf, and the Trustee agrees, to promptly make
available to the proposed transferee, upon request of the holder, (i) all
statements furnished to Certificateholders pursuant to this Section 4.05(a) on
previous Distribution Dates, (ii) all certificates furnished to the Trustee
pursuant to Section 4.06 in prior months, (iii) Officer's Certificates furnished
to the Trustee pursuant to Section 3.12 for the two years preceding such
request, (iv) reports of independent accountants furnished to the Trustee
pursuant to Section 3.13 for the two years preceding such request, (v) a copy of
the Private Placement Memorandum relating to such Certificate, together with any
amendments or supplements thereto issued by the Company (which copy shall be
furnished to the Trustee by the Depositor), and (vi) the Company's Current
Report on Form 8-K, dated the Closing Date, relating to the Mortgage Loans;
provided, however, that the Trustee shall in no event be required to make
available such statements or certificates pursuant to clauses (i) and (ii) above
relating to Distribution Dates occurring more than twenty-four months preceding
the month in which such request was received; provided, further, however, that
notwithstanding the Trustee's agreement as aforesaid to provide such materials
to a proposed transferee, the Trustee does not assume, and shall not thereby be
deemed to have assumed, any responsibility for compliance by the Depositor with
Rule 144A (subject to the Trustee's agreement set forth in the second sentence
of this paragraph) and shall be entitled to include a notice with such
statements or certificates to the effect that such materials have not been
prepared or assembled by the Trustee and that the Trustee assumes no
responsibility for the adequacy, sufficiency or contents thereof. In connection
with any such proposed transfer, the Depositor shall make available to the
proposed holder, at the request of the related transferor, such additional
information, if any, as may be required to be delivered pursuant to Rule
144A(d)(4).
Section 4.06. Servicer's Certificate. Each month, not later than the second
Business Day next preceding each Distribution Date, the Servicer shall deliver
to the Trustee a completed Servicer's Certificate.
Section 4.07. Reports of Foreclosures and Abandonments of Mortgaged
Property. The Trustee (or the Servicer on behalf of the Trustee) shall, in each
year beginning after December 31, _____ make the reports of foreclosures and
abandonments of any Mortgaged Property as required by section 6050J of the Code.
In order to facilitate this reporting process, the Servicer, on or before
January 15th of each year, shall provide to the Trustee reports relating to each
instance occurring during the previous calendar year in which the Servicer (i)
on behalf of the Trustee acquires an interest in a Mortgaged Property through
foreclosure or other comparable conversion in full or partial satisfaction of a
Mortgage Loan, or (ii) knows or has reason to know that a Mortgaged Property has
been abandoned. Reports from the Servicer shall be in form and substance
sufficient to meet the reporting requirements imposed by section 6050J of the
Code.
Section 4.08. Reduction of [Base] Servicing Fees by Compensating Interest
Payments. The aggregate amount of the [Base] Servicing Fees subject to retention
by the Servicer as servicer in respect of any Distribution Date shall be reduced
by the amount of any Compensating Interest Payment for such Distribution Date.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates. (a) The Certificates shall be substantially
in the forms set forth in Exhibit A hereto, as applicable, and shall, on
original issue, be executed by the Trustee, not in its individual capacity but
solely as Trustee, and countersigned and delivered by the Trustee to or upon the
order of the Company as provided in Article II.
(b) The Certificates shall be issued in an aggregate Initial Certificate
Principal Balance of $_____. Such aggregate original principal balance shall be
divided among the Classes having the designations, Class Certificate Principal
Balances, Certificate Interest Rates and minimum denominations as follows:
Initial Class
Certificate Certificate
Principal Interest Minimum
Designation Balance Rate Denominations
----------- ------- ---- -------------
[ ] [ ] [ ] [ ]
----------------------
[(1) The Class _____ Certificates are issued with an initial Notional Principal
Balance of $_____.]
[(2) The Certificate Interest Rates of the Class _____ Certificates for each
Interest Accrual Period shall be determined as provided in Section
5.01(e).]
(3) The Class PO Certificates will be issued as a single Certificate evidencing
the entire Class Certificate Principal Balance of such class.
(c) The Certificates shall be issuable in registered form only. The
Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the minimum dollar denominations
in Certificate Principal Balance or Notional Principal Balance, as applicable,
specified in Section 5.01(b), and integral multiples of $1,000 in excess
thereof. The Non-Book-Entry Certificates other than each Class of the Residual
Certificates shall each be issued in the minimum dollar denominations in
Certificate Principal Balance or Notional Principal Balance, as applicable,
specified in Section 5.01(b), and integral multiples of $1,000 in excess thereof
(and, if necessary, in the amount of the remaining Class Certificate Principal
Balance or Notional Principal Balance, as applicable, of each Class, in the case
of one Certificate of such Class). The [each Class of the] Residual
Certificate[s] shall be issued as a single certificate evidencing the entire
Class Certificate Principal Balance of such Class and having a Percentage
Interest of 100%. If necessary, one Certificate of each Class of Book-Entry
Certificates may evidence an additional amount equal to the remainder of the
Class Certificate Principal Balance (or Notional Principal Balance) of such
Class.
(d) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer under its seal, which may be in
facsimile form and be imprinted or otherwise reproduced thereon. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trustee, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless such Certificate shall have been manually countersigned
by the Trustee substantially in the forms set forth in Exhibit A hereto, and
such countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates issued on the Closing Date shall be dated the
Closing Date; all Certificates issued thereafter shall be dated the date of
their countersignature.
[(e)During the first Interest Accrual Period, the Certificate Interest Rate
of the Class _____ Certificates shall be _____% per annum. For each subsequent
Interest Accrual Period, the Certificate Interest Rate of the Class _____
Certificates shall be a per annum rate equal to the lesser of (i) _____% plus
LIBOR and (ii) _____%, subject to a minimum rate of _____%.]
[During the first Interest Accrual Period, the Certificate Interest Rate of
the Class _____ Certificates shall be _____% per annum. For each subsequent
Interest Accrual Period, the Certificate Interest Rate of the Class _____
Certificates shall be a per annum rate equal to the lesser of (i) _____% minus
the product of _____ and LIBOR, and (ii) _____%, subject to a minimum rate of
_____%.]
Section 5.02. Registration of Transfer and Exchange of Certificates. (a)
The Trustee shall cause to be kept at an office or agency in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
New York a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee shall initially serve as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
Subject to Sections 5.02(b) and 5.02(c), upon surrender for registration of
transfer of any Certificate at the Corporate Trust Office, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class in authorized
denominations of a like Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of authorized denominations of a like Class and Percentage
Interest, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange the Trustee
shall execute, countersign 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
Trustee and the Certificate Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee 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 Certificates.
All Certificates surrendered for registration of transfer and exchange
shall be canceled and subsequently destroyed by the Trustee and a certificate of
destruction shall be delivered by the Trustee to the Depositor.
(b) No legal or beneficial interest in all or any portion of the Residual
Certificates may be transferred directly or indirectly to (i) Disqualified
Organization or an agent of a Disqualified Organization (including a broker,
nominee, or middleman), (ii) an entity that holds REMIC residual securities as
nominee to facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations (a
"Book-Entry Nominee"), or (iii) an individual, corporation, partnership or other
person unless such transferee (A) is not a Non-U.S. Person or (B) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Trustee with an effective Internal Revenue Service Form 4224 or (C) is a
Non-U.S. Person that has delivered to both the transferor and the Trustee an
opinion of a nationally recognized tax counsel to the effect that the transfer
of a Residual Certificate to it is in accordance with the requirements of the
Code and the regulations promulgated thereunder and that such transfer of a
Residual Certificate will not be disregarded for federal income tax purposes
(any such person who is not covered by clause (A), (B) or (C) above being
referred to herein as a "Non-permitted Foreign Holder"), and any such purported
transfer shall be void and have no effect. The Trustee shall not execute, and
shall not authenticate and deliver, a Residual Certificate in connection with
any transfer thereof unless the transferor shall have provided to the Trustee an
affidavit, substantially in the form attached as Exhibit F hereto, signed by the
transferee, to the effect that the transferee is not such a Disqualified
Organization, an agent (including a broker, nominee, or middleman) for any
entity as to which the transferee has not received a substantially similar
affidavit, a Book-Entry Nominee or a Non-permitted Foreign Holder, which
affidavit shall contain the consent of the transferee to any such amendments of
this Agreement as may be required to further effectuate the foregoing
restrictions on transfer of the Residual Certificates to Disqualified
Organizations, Book-Entry Nominees or Non-permitted Foreign Holders, and an
agreement by the Transferee that it will not transfer a Residual Certificate
without providing to the Trustee an affidavit substantially in the form attached
as Exhibit F hereto and a letter substantially in the form attached as Exhibit G
hereto. Such affidavit shall also contain the statement of the transferee that
(i) it does not have the intention to impede the assessment or collection of any
federal, state or local taxes legally required to be paid with respect to the
Residual Certificates and (ii) it understands that it may incur tax liabilities
in excess of cash flows generated by a Residual Certificate and that it intends
to pay taxes associated with holding a Residual Certificate as they become due.
The affidavit described in the preceding paragraph, if not executed in
connection with the initial issuance of the Residual Certificates, shall be
accompanied by a written statement in the form attached as Exhibit G hereto,
signed by the transferor, to the effect that as of the time of the transfer, the
transferor has (i) no actual knowledge that the transferee is a Disqualified
Organization, Book-Entry Nominee or Non-permitted Foreign Holder, (ii) no reason
to believe that the transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate, and (iii) conducted a reasonable
investigation and found that the transferee had historically paid its debts as
they came due and found no significant evidence to indicate that the transferee
will not continue to pay its debts as they become due. The Residual Certificates
shall bear a legend referring to the foregoing restrictions contained in this
paragraph and the preceding paragraph.
Upon notice to the Servicer that any legal or beneficial interest in any
portion of the Residual Certificates has been transferred, directly or
indirectly, to a Disqualified Organization or agent thereof (including a broker,
nominee, or middleman) in contravention of the foregoing restrictions, (i) such
transferee shall be deemed to hold the Residual Certificate in constructive
trust for the last transferor who was not a Disqualified Organization or agent
thereof, and such transferor shall be restored as the owner of such Residual
Certificate as completely as if such transfer had never occurred, provided that
the Company may, but is not required to, recover any distributions made to such
transferee with respect to the Residual Certificate and return such recovery to
the transferor, and (ii) the Servicer agrees to furnish to the Internal Revenue
Service and to any transferor of the Residual Certificate or such agent (within
60 days of the request therefor by the transferor or agent) such information
necessary to the application of section 860E(e) of the Code as may be required
by the Code, including but not limited to the present value of the total
anticipated excess inclusions with respect to the Residual Certificate (or
portion thereof) for periods after such transfer. At the election of the
Servicer, the cost to the Servicer of computing and furnishing such information
may be charged to the transferor or such agent referred to above; however, the
Company shall in no event be excused from furnishing such information.
The restrictions on transfers of the Residual Certificates set forth in the
preceding three paragraphs shall cease to apply to transfers (and the applicable
portions of the legend to the Residual Certificates may be deleted) after
delivery to the Trustee of an Opinion of Counsel to the effect that the
elimination of such restrictions will not cause the REMIC [either of the
Upper-Tier REMIC or the Lower-Tier REMIC] established hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding.
No transfer of a Restricted Certificate shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities Act
of 1933, as amended (the "Act"), and any applicable state securities laws, in
each case as evidenced by an Officer's Certificate, or is exempt from the
registration requirements of the Act and any applicable state securities laws.
In the event of such registration, any restrictive legends set forth in the form
of the relevant Restricted Certificate in Exhibit A hereto with respect to the
Act and state securities law restrictions shall be removed by the Trustee upon
request of the Holder thereof and automatically upon exchange or registration of
transfer thereof. As a condition to any transfer that is to be made in reliance
upon an exemption from the Act and such laws of a (i) Class PO Certificate or
(ii) Restricted Junior Certificate to any person other than a QIB (as certified
by the proposed transferee in the form of assignment attached to the related
Certificate), either (x) the Trustee shall require the transferee to execute an
investment letter in the form substantially as set forth in Exhibit I hereto or
in such other form as may be acceptable to the Trustee, certifying as to the
facts surrounding such transfer, or (y) in lieu of such investment letter, the
Trustee may accept a written Opinion of Counsel (in form and substance
acceptable to the Trustee) that such proposed transfer may be made pursuant to
an exemption from the Act. As an additional condition to any transfer of a
Restricted Certificate, either (i) the transferor and the transferee shall
complete the form of assignment attached to the Certificate proposed to be
transferred, or (ii) the Trustee shall have received the above-referenced
Opinion of Counsel. The holder of any Restricted Certificate desiring to effect
the transfer thereof to a person other than a QIB shall, and hereby agrees to,
comply with any applicable conditions set forth in the preceding two sentences
and indemnify the Trustee and the Company against any liability that may result
if the transfer thereof is not so exempt or is not made in accordance with such
federal and state laws. Such agreement to so indemnify the Trustee and the
Company shall survive the termination of this Agreement. Notwithstanding the
foregoing, no Opinion of Counsel or investment letter shall be required upon the
original issuance of (i) the Restricted Junior Certificates to the Initial
Purchaser (as defined in the Private Placement Memorandum) or its nominee and
(ii) the Class PO Certificates to the Company or upon any subsequent transfer of
any Class PO Certificate by the Company, provided that if any Restricted Junior
Certificates are, at the request of the Initial Purchaser, registered in the
name of its nominee, the Initial Purchaser shall be deemed to acknowledge and
agree with the Company and the Trustee that no transfer of a beneficial interest
in such Certificates will be made without registering such Certificates in the
name of the transferee, which shall be a Person other than such nominee. Any
opinion or letter required pursuant to this paragraph shall not be at the
expense of the Trust Fund or the Trustee.
(c) (i) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate (substantially in the form of Exhibit E or such other
form as is acceptable to the Company and the Trustee) from such transferee to
the effect that such transferee (i) is not a Plan or a Person that is using the
assets of a Plan to acquire such ERISA-Restricted Certificate or (ii) is an
insurance company investing assets of its general account and the exemptions
provided by Section III(a) of Department of Labor Prohibited Transaction Class
Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemptions") apply to
the transferee's acquisition and holding of any ERISA-Restricted Certificate or
(B) an opinion of counsel satisfactory to the Trustee and the Company to the
effect that the purchase and holding of such a Certificate will not constitute
or result in the assets of the Trust Fund being deemed to be "plan assets"
subject to the prohibited transactions provisions of ERISA or Section 4975 of
the Code and will not subject the Trustee or the Company to any obligation in
addition to those undertaken in the Agreement; provided, however, that the
Trustee will not require such certificate or opinion in the event that, as a
result of a change of law or otherwise, counsel satisfactory to the Trustee has
rendered an opinion to the effect that the purchase and holding of an
ERISA-Restricted Certificate by a Plan or a Person that is purchasing or holding
such a Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under ERISA or Section 4975 of the Code. The preparation
and delivery of the certificate and opinions referred to above shall not be an
expense of the Trust Fund, the Trustee or the Company. Notwithstanding the
foregoing, no opinion or certificate shall be required for the initial issuance
of the ERISA-Restricted Certificates.
(ii) No transfer of a Residual Certificate shall be made to any
Person unless the Trustee has received a certification (substantially
in the form of paragraph 4 of Exhibit F) from such transferee to the
effect that, among other things, such transferee is not a Plan or a
Person that is using the assets of a Plan to acquire any such
Certificate. The preparation and delivery of such certificate shall
not be an expense of the Trust Fund, the Trustee or the Company.
(d) Subject to Section 8.01(i) hereof, the Trustee may conclusively rely
upon any certificate, affidavit or opinion delivered pursuant to Section 5.02(b)
or (c). Any certificate or affidavit required to be delivered by a transferee
under this Section 5.02 may be executed and delivered in the name of such
transferee by its attorney-in-fact duly authorized in writing in form and
substance satisfactory to the Trustee.
(e) Except as to any additional Certificate of any Class of Book-Entry
Certificates held in physical certificated form pursuant to Section 5.02(g) or
any Restricted Junior Certificate of any Class of Book-Entry Certificates that
is transferred to an entity other than a QIB, the Book-Entry Certificates shall,
subject to Section 5.02(f), at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration thereof may not be
transferred by the Trustee 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 Certificates; (iii) ownership
and transfers of registration of the Certificates issued in book-entry form on
the books of the Depository shall be governed by applicable rules established by
the Depository and the rights of Certificate Owners with respect to Book-Entry
Certificates shall be governed by applicable law and agreements between such
Certificate Owners and the Depository, Depository Participants, and indirect
participating firms; (iv) the Depository may collect its usual and customary
fees, charges and expenses from its Depository Participants; (v) the Trustee
shall deal with the Depository, Depository Participants and indirect
participating firms as authorized representatives of the Certificate Owners of
the Certificates issued in book-entry form for all purposes including the making
of payments due on the Book-Entry Certificates and 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; (vi) the Trustee may rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners; (vii) Certificate Owners shall not be entitled to certificates for the
Book-Entry Certificates and (viii) the Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
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. Except as provided herein, the Trustee shall
have no duty to monitor or restrict the transfer of Certificates or interests
therein, and shall have no liability for any transfer, including any transfer
made through the book-entry facilities of the Depository or between or among
Depository Participants or Certificate Owners, made in violation of applicable
restrictions set forth herein, except in the event of the failure of the Trustee
to perform its duties and fulfill its obligations under this Agreement.
(f) If (x)(i) the Servicer or the Depository advises the Trustee in writing
that the Depository is no longer willing, qualified or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or the
Company is unable to locate a qualified successor, (y) the Company at its option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository or (z) after the occurrence of an Event of Default,
Certificate Owners representing not less than 51% of the aggregate Voting Rights
allocated to the Book-Entry Certificates together advise the Trustee and the
Depository through the Depository Participants in writing that the continuation
of a book-entry system through the Depository is no longer in the best interests
of the Certificate Owners, the Trustee shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of such Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall issue the Definitive Certificates. Neither the Servicer nor
the Trustee shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. 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 Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(g) On or prior to the Closing Date, there shall be delivered to the
Depository (or to _____________________ acting as custodian for the Depository
pursuant to the Depository's procedures) one certificate for each Class of
Book-Entry Certificates registered in the name of the Depository's nominee, Cede
& Co. The face amount of each such Certificate shall represent 100% of the
initial Class Certificate Principal Balance thereof, except for such amount that
does not constitute an acceptable denomination to the Depository. An additional
Certificate of each Class of Book-Entry Certificates may be issued evidencing
such remainder and, if so issued, will be held in physical certificated form by
the Holders thereof. Each Certificate issued in book-entry form shall bear the
following legend:
"Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (b) there is delivered to the Depositor,
the Certificate Registrar and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Certificate Registrar or the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute, countersign and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor, Class and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee 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 Trustee and the
Certificate Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Servicer,
the Trustee or the Certificate Registrar may treat the person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and neither the Depositor, the Servicer, the Trustee, the
Certificate Registrar nor any agent of the Depositor, the Servicer, the Trustee
or the Certificate Registrar shall be affected by any notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar will furnish or cause to be furnished to the Company,
within 15 days after receipt by the Certificate Registrar of request therefor
from the Company in writing, a list, in such form as the Company may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date for payment of distributions to Certificateholders. If three
or more Certificateholders (hereinafter referred to as "applicants") apply in
writing to the Trustee, and such application states that the applicants desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, afford such
applicants access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If such list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt. Every Certificateholder, by receiving and holding a Certificate, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06. Representation of Certain Certificateholders. The fiduciary
of any Plan which becomes a Holder of a Certificate, by virtue of its acceptance
of such Certificate, will be deemed to have represented and warranted to the
Trustee and the Company that such Plan is an "accredited investor" as defined in
Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act of 1933.
Section 5.07. Determination of COFI. (a) If the outstanding Certificates
include any COFI Certificates, then on each COFI Determination Date the Trustee
shall determine the value of COFI on the basis of the most recently available
Information Bulletin referred to in the definition of "COFI". The establishment
of COFI by the Trustee and the Trustee's subsequent calculation of the rates of
interest applicable to the COFI Certificates for each Interest Accrual Period
shall (in the absence of manifest error) be final and binding. During each
Interest Accrual Period, the Certificate Interest Rate for the COFI Certificates
for the current and immediately preceding Interest Accrual Period shall be made
available by the Trustee to Certificate Owners and Certificateholders at the
following telephone number: (▇▇▇) ▇▇▇-▇▇▇▇.
(b) The failure by the Federal Home Loan Bank of San Francisco to publish
COFI for a period of 65 calendar days will constitute an "Alternative Rate
Event" for purposes hereof. Upon the occurrence of an Alternative Rate Event,
the Servicer will calculate the Certificate Interest Rates for the COFI
Certificates for the subsequent Interest Accrual Periods by using, in place of
COFI, (i) the replacement index, if any, published or designated by the Federal
Home Loan Bank of San Francisco or (ii) if no replacement index is so published
or designated, an alternative index to be selected by the Company that has
performed, or that the Company expects to perform, in a manner substantially
similar to COFI. At the time an alternative index is first selected by the
Company, the Servicer shall determine the average number of basis points, if
any, by which the alternative index differed from COFI for such period as the
Servicer, in its sole discretion, reasonably determines to reflect fairly the
long-term difference between COFI and the alternative index, and shall adjust
the alternative index by such average. The Servicer shall select a particular
index as an alternative only if it receives an Opinion of Counsel to the effect
that the selection of such index will not cause any REMIC established hereunder
to fail to qualify as a REMIC for federal income tax purposes. In the absence of
manifest error, the selection of any alternative index as provided by this
Section 5.07(b) shall be final and binding for each subsequent Interest Accrual
Period. Upon the occurrence of an Alternative Rate Event, the Trustee shall have
no responsibility for the determination of any alternative index or the
calculation of the Certificate Interest Rates for the COFI Certificates.
(c) If at any time after the occurrence of an Alternative Rate Event the
Federal Home Loan Bank of San Francisco resumes publication of COFI, the
Certificate Interest Rates for the COFI Certificates for each Interest Accrual
Period commencing thereafter will be calculated by reference to COFI.
Section 5.08. Determination of LIBOR. (a) If the outstanding Certificates
include any LIBOR Certificates, then on each LIBOR Determination Date the
Trustee shall determine LIBOR for the related Interest Accrual Period as such
rate equal to the Interest Settlement Rate. If such rate does not appear on the
Designated Telerate Page as of 11:00 a.m., London time, on the applicable LIBOR
Determination Date:
(i) The Trustee will request the principal London office of each
Reference Bank (as defined in Section 5.08(e)) to provide such bank's
offered quotation (expressed as a percentage per annum) to prime banks
in the London interbank market for one-month U.S. Dollar deposits as
of 11:00 a.m., London time, on the applicable LIBOR Determination
Date.
(ii) If on any LIBOR Determination Date, two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Interest Accrual Period will be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards, if necessary, to
the nearest whole multiple of 1/16%). If on any LIBOR Determination
Date only one or none of the Reference Banks provide such offered
quotations, LIBOR for the next Interest Accrual Period will be the
rate per annum the Trustee determines to be the arithmetic mean
(rounding such arithmetic mean upwards, if necessary, to the nearest
whole multiple of 1/16%) of the one-month Eurodollar lending rate that
three major banks in New York City selected by the Trustee are quoting
as of approximately 11:00 a.m., New York City time, on the first day
of the applicable Interest Accrual Period.
(iii) If on any LIBOR Determination Date the Trustee is required
but unable to determine LIBOR in the manner provided in subparagraph
(ii) of this Section 5.08(a), LIBOR for the next Interest Accrual
Period will be LIBOR as determined on the previous LIBOR Determination
Date, or, in the case of the first LIBOR Determination Date, the
Initial LIBOR Rate.
(b) The establishment of LIBOR by the Trustee and the Trustee's subsequent
calculation of the Certificate Interest Rates applicable to the LIBOR
Certificates for the relevant Interest Accrual Period, in the absence of
manifest error, will be final and binding.
(c) Within five Business Days of the Trustee's calculation of the
Certificate Interest Rates of the LIBOR Certificates, the Trustee shall furnish
to the Servicer by telecopy (or by such other means as the Trustee and the
Servicer may agree from time to time) such Certificate Interest Rates.
(d) The Trustee shall provide to Certificateholders who inquire of it by
telephone the Certificate Interest Rates of the LIBOR Certificates for the
current and immediately preceding Interest Accrual Period.
(e) As used herein, "Reference Banks" shall mean no more than four leading
banks engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) whose quotations appear on the display designated "LIBO" on the
Reuters Monitor Money Rates Service (the "Reuters Screen LIBO Page") on the
applicable LIBOR Determination Date and (iii) which have been designated as such
by the Trustee and are able and willing to provide such quotations to the
Trustee on each LIBOR Determination Date. The Reference Banks initially shall
be: [Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company
and Bankers Trust Company]. If any of the initial Reference Banks should be
removed from the Reuters Screen LIBO Page or in any other way fail to meet the
qualifications of a Reference Bank, or if such page is no longer published, the
Trustee, after consultation with the Servicer, shall use its best efforts to
designate alternate Reference Banks.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01. Liability of the Depositor and the Servicer. The Depositer
and the Servicer each shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken by it herein.
Section 6.02. Merger or Consolidation of, or Assumption of the Obligations
of, the Depositor or the Servicer. Any corporation into which the Depositor or
the Servicer may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Depositor or the Servicer
shall be a party, or any corporation succeeding to the business of the Depositor
or the Servicer, or (in the case of the Depositor and, so long as GECMSI is the
Servicer, GECMSI) any corporation, more than 50% of the voting stock of which
is, directly or indirectly, owned by General Electric Company, or any limited
partnership, the sole general partner of which is either the Depositor or the
Servicer or a corporation, more than 50% of the voting stock of which is owned,
directly or indirectly, by General Electric Company, which executes an agreement
of assumption to perform every obligation of the Depositor or the Servicer
hereunder, shall be the successor of the Depositor or the 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.
Section 6.03. Assignment. The Servicer may assign its rights and delegate
its duties and obligations as servicer under this Agreement; provided, that (i)
the purchaser or transferee accepting such assignment or delegation is qualified
to service mortgage loans for FNMA or FHLMC, is reasonably satisfactory to the
Trustee and executes and delivers to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such purchaser or transferee of the due and punctual performance and
observance of each covenant and condition to be performed or observed by GECMSI
as Servicer hereunder from and after the date of such agreement and (ii) each
Rating Agency's rating of any Classes of Certificates in effect immediately
prior to such assignment or delegation would not be qualified, downgraded or
withdrawn as a result thereof. In the case of any such assignment or delegation,
the Servicer will be released from its obligations as servicer hereunder except
for liabilities and obligations as servicer incurred prior to such assignment or
delegation.
Section 6.04. Limitation on Liability of the Depositor, the Servicer and
Others. Neither the Depositor, the Servicer nor any of the directors or officers
or employees or agents of the Depositor or the Servicer shall be under any
liability to the Trust Fund or the Certificateholders for any action taken or
for refraining from the taking of any action by the Depositor or the Servicer
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor or the Servicer or any such
person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the performance of duties
of the Depositor or the Servicer or by reason of reckless disregard of
obligations and duties of the Depositor or the Servicer hereunder. The Depositor
and the Servicer and any director or officer or employee or agent of the Company
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 the Servicer and any director or officer or employee or agent of
the Depositor or the Servicer shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with any
legal action relating to this Agreement or the Certificates, other than any
loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) and 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 Servicer shall be under no obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Mortgage Loans in accordance with this Agreement and which
in its opinion may involve it in any expense or liability; provided, however,
that the Servicer may in its sole discretion undertake any such action which 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 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 Servicer shall be entitled to be reimbursed therefor from
amounts credited to the Mortgage Loan Payment Record as provided by Section
3.04.
Section 6.05. The Servicer Not to Resign. Subject to the provisions of
Sections 6.02 and 6.03, the Servicer shall not resign from the obligations and
duties hereby imposed on it except upon determination that the performance of
its duties hereunder is no longer permissible under applicable law. Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee or a successor servicer
shall have assumed the responsibilities and obligations of the Servicer in
accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(i) Any failure by the Servicer to make any payment to the
Trustee of funds pursuant to Section 3.02(d) out of which
distributions to Certificateholders of any Class are required to be
made under the terms of the Certificates and this Agreement which
failure continues unremedied for a period of three Business Days after
the date upon which written notice of such failure shall have been
given to the Servicer by the Trustee or to the Servicer and the
Trustee by Holders of Certificates of each Class affected thereby
evidencing, as to each such Class, Percentage Interests aggregating
not less than 25%; or
(ii) Failure on the part of the Company duly to observe or
perform in any material respect any other covenants or agreements of
the Servicer set forth in the Certificates or in this Agreement, which
covenants and agreements (A) materially affect the rights of
Certificateholders and (B) continue unremedied for a period of 60 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the
Trustee, or to the Company and the Trustee by the Holders of
Certificates of each Class affected thereby evidencing, as to each
such Class, Percentage Interests aggregating not less than 25%; or
(iii) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer , or
for the winding up or liquidation of the Servicer 's affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(iv) The consent by the Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Servicer or of or relating to substantially all
of its property; or the Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by the Company, either the Trustee, or the Holders of
Certificates of each Class affected thereby evidencing, as to each such Class,
Percentage Interests aggregating not less than 51%, by notice then given in
writing to the Servicer (and to the Trustee if given by the Certificateholders)
may terminate all of the rights and obligations of the Servicer under this
Agreement. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Certificates or the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this Section 7.01; and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Mortgage
Loans and related documents, or otherwise, including, without limitation, the
recordation of the assignments of the Mortgage Loans to it. The Servicer agrees
to cooperate with the Trustee in effecting the termination of the
responsibilities and rights of the Servicer hereunder, including, without
limitation, the transfer to the Trustee for the administration by it of all cash
amounts that shall at the time be held by the Servicer and that have been or
should have been credited by it to the Mortgage Loan Payment Record, or that
have been deposited by the Servicer in the Certificate Account or are thereafter
received by the Servicer with respect to the Mortgage Loans. In addition to any
other amounts which are then, or, notwithstanding the termination of its
activities as servicer, may become, payable to the Servicer under this
Agreement, the Servicer shall be entitled to receive out of any delinquent
payment on account of interest on a Mortgage Loan, due during the period prior
to the notice pursuant to this Section 7.01 which terminates the obligation and
rights of the Company hereunder and received after such notice, that portion of
such payment which it would have been entitled to retain pursuant to Section
3.04(vi) if such notice had not been given.
Section 7.02. Trustee to Act; Appointment of Successor. (a) On and after
the time the Servicer receives a notice of termination pursuant to Section 7.01,
the Trustee shall be the successor in all respects to the Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall succeed to all the rights of and be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Servicer in its capacity as servicer by the terms and provisions hereof;
provided, however, that the responsibilities and duties of the Servicer pursuant
to Sections 2.02 and 2.03(a) and, if the Trustee is prohibited by law or
regulation from making Monthly Advances, the responsibility to make Monthly
Advances pursuant to Section 4.04, shall not be the responsibilities, duties or
obligations of the Trustee; and provided further, that any failure of the
Trustee to perform such duties and responsibilities that is caused by the
Servicer's failure to cooperate with the Trustee as required by Section 7.01
shall not be considered a default by the Trustee hereunder. As compensation
therefor, the Trustee shall, except as provided in Section 7.01, be entitled to
such compensation as the Servicer would have been entitled to hereunder if no
such notice of termination had been given. Notwithstanding the above, the
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution approved to
service mortgage loans for either FNMA or FHLMC, having a net worth of not less
than $10,000,000, as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. Pending appointment of a successor to the Servicer pursuant
to this Article VII, unless the Trustee is prohibited by law from so acting, the
Trustee shall act in such capacity as hereinabove provided. 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 no such compensation shall be in
excess of that permitted the Servicer hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) Any successor, including the Trustee, to the Servicer as servicer
pursuant to this Article VII shall during the term of its service as servicer
maintain in force (i) a policy or policies of insurance covering errors and
omissions in the performance of its obligations as servicer hereunder, and (ii)
a fidelity bond in respect of its officers, employees and agents to the same
extent as the Servicer is so required pursuant to Section 3.15.
Section 7.03. Notification to Certificateholders. Upon any termination or
appointment of a successor to the Servicer pursuant to this Article VII, the
Trustee shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee. The Trustee, prior to the occurrence of an
Event of Default and after the curing of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default has occurred
(which has not been cured), 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 his or her own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, 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 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 Trustee and,
in the absence of bad faith on the part of the Trustee, 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;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in performing
its duties in accordance with the terms of this Agreement;
(iii) The Trustee shall not be personally 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 of
each Class affected thereby evidencing, as to each such Class,
Percentage Interests aggregating not less than 25%, 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; and
(iv) The Trustee shall not be charged with knowledge of (A) any
failure by the Servicer to comply with the obligations of the Company
referred to in clauses (i) and (ii) of Section 7.01, (B) the rating
downgrade referred to in the definition of "Trigger Event" or (C) any
failure by the Servicer to comply with the obligations of the Servicer
to record the assignments of Mortgages referred to in Section 2.01
unless a Responsible Officer of the Trustee at the Corporate Trust
Office obtains actual knowledge of such failures, occurrence or
downgrade or the Trustee receives written notice of such failures,
occurrence or downgrade from the Servicer or the Holders of
Certificates of each Class affected thereby evidencing, as to each
such Class, Percentage Interests aggregating not less than 25%.
Subject to any obligation of the Trustee to make Monthly Advances as
provided herein, the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer under this Agreement, except during such
time, if any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Servicer in accordance with the
terms of this Agreement.
Section 8.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 8.01:
(i) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of
the 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 Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligations, upon the
occurrence of an Event of Default (which has not been cured), to
exercise such of the rights and powers vested in it by this Agreement,
and to 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 his or her own affairs;
(iv) The Trustee shall not be personally 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;
(v) Prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, 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 documents, unless requested in writing so to do by Holders of
Certificates of each Class affected thereby evidencing, as to each
such Class, Percentage Interests aggregating not less than 25%;
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 reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a
condition to such proceeding. The reasonable expense of every such
investigation shall be paid by the Depositor or, if paid by the
Trustee, shall be reimbursed by the Depositor upon demand. Nothing in
this clause (v) shall derogate from the obligation of the Depositor to
observe any applicable law prohibiting disclosure of information
regarding the Mortgagors; and
(vi) The Trustee 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.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans. The
recitals contained herein and in the Certificates (other than the signature and
countersignature of the Trustee on the Certificates) shall be taken as the
statements of the Depositor , and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Agreement or of the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) or of any
Mortgage Loan or related document. The Trustee shall not be accountable for the
use or application by the Depositor of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Servicer.
Section 8.04. Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates with the
same rights as it would have if it were not Trustee.
Section 8.05. The Depositor to Pay Trustee's Fees and Expenses. The
Depositor covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and the Depositor will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
(including any Monthly Advances of the Trustee not previously reimbursed thereto
pursuant to Section 3.04) incurred or made by the Trustee in accordance with any
of the provisions of this Agreement (including the reasonable compensation and
the expenses and disbursements of its counsel and of all persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith or which is the responsibility of
Certificateholders hereunder. In addition, the Depositor covenants and agrees to
indemnify the Trustee from, and hold it harmless against, any and all losses,
liabilities, damages, claims or expenses other than those resulting from the
negligence or bad faith of the Trustee. From time to time, the Trustee may
request that the Servicer debit the Mortgage Loan Payment Record pursuant to
Section 3.04 to reimburse the Trustee for any Monthly Advances and
Nonrecoverable Advances.
Section 8.06. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation having its principal office either in the
State of New York or in the same state as that in which the initial Trustee
under this Agreement has its principal office and organized and doing business
under the laws of such 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 and subject to supervision or examination by
federal or state authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The Trustee shall not be an affiliate of the Depositor or the
Servicer. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
Section 8.07. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Servicer. Upon receiving such notice of resignation, the
Servicer shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and having accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the conditions in any of the following clauses (i), (ii) or (iii) shall
occur at any time, the Servicer may remove the Trustee: (i) the Trustee shall
cease to be eligible in accordance with the provisions of Section 8.06 and shall
fail to resign after written request therefor by the Servicer; (ii) the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation; or (iii)
the replacement of the Trustee with a successor Trustee will enable the Servicer
to avoid (and should, based on the information included in the notice referred
to below, result in the avoidance of) a downgrading of the ratings assigned to
the Certificates by the Rating Agencies (whether or not other actions could
avoid such downgrading) and no Event of Default, as provided by Section 7.01
hereof, shall have occurred or be continuing; provided, however, that no action
shall be taken pursuant to this clause (iii) unless reasonable notice shall have
been provided to the Trustee, which notice shall set forth the basis for any
rating downgrade as contemplated by the Rating Agencies and shall also indicate
the manner in which such proposed action is intended to avoid such downgrade. If
it removes the Trustee under the authority of the immediately preceding
sentence, the Servicer shall promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.08.
Section 8.08. Successor Trustee. Any successor Trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Company
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 like effect as if originally
named as Trustee. The predecessor Trustee shall deliver to the successor Trustee
all Mortgage Files and related documents and statements held by it hereunder;
and the Servicer, the Depositor and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section
8.08 unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.08, the Servicer shall mail notice of the succession of such Trustee
hereunder to all holders of Certificates at their addresses as shown in the
Certificate Register. If the Servicer fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Servicer.
Section 8.09. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer, the Depositor and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, of all or any part of the Trust Fund, or separate trustee or
separate trustees of 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, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Servicer, the Depositor and the Trustee may consider necessary or
desirable. If the Servicer or the Depositor shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee 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 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 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;
(ii) No trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) The Servicer and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Compliance with REMIC Provisions; Tax Returns. The Trustee
shall at all times act in such a manner in the performance of its duties
hereunder as shall be necessary to prevent [the Trust Fund] [each of the
Upper-Tier REMIC and the Lower-Tier REMIC] from failing to qualify as a REMIC
and to prevent the imposition of a tax on the Trust Fund or the REMIC[s]
established hereunder. The Trustee, upon request, will furnish the Servicer with
all such information within its possession as may be reasonably required in
connection with the preparation of all tax returns of the Trust Fund and any
Reserve Fund, and shall, upon request, execute such returns.
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Repurchase by the [Depositor] [Servicer] or
Liquidation of All Mortgage Loans. Subject to Section 9.02, the respective
obligations and responsibilities of the Depositor, the Servicer and the Trustee
created hereby (other than the obligation of the Trustee to make certain
payments to Certificateholders after the final Distribution Date and the
obligation of the Trustee to send certain notices as hereinafter set forth)
shall terminate upon the last action required to be taken by the Trustee on the
final Distribution Date pursuant to this Article IX following the earlier of (a)
the repurchase by the [Depositor] [Servicer] of all Mortgage Loans and all REO
Mortgage Loans remaining in the Trust Fund at a price equal to the sum of (x)
100% of the unpaid principal balance of each Mortgage Loan (other than any REO
Mortgage Loans described in the following clause) plus accrued and unpaid
interest thereon at the applicable Remittance Rate (less any amounts
constituting previously unreimbursed Monthly Advances) to the first day of the
month in which such purchase price is to be distributed to Certificateholders
and (y) the appraised value of any REO Mortgage Loan (less the good faith
estimate of the [Depositor] [Servicer] of Liquidation Expenses to be incurred in
connection with its disposal thereof), such appraisal to be conducted by an
appraiser mutually agreed upon by the [Depositor] [Servicer] and the Trustee,
and (b) the later of the final payment or other liquidation (or any Monthly
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund or the disposition of all property acquired upon foreclosure or by deed in
lieu of foreclosure of any Mortgage Loan; provided, however, that in no event
shall the Trust Fund created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
late ambassador of the United States of America to the Court of St. James's,
living on the date of this Agreement. The right of the [Depositor] [Servicer] to
repurchase all Mortgage Loans pursuant to clause (a) above shall be conditioned
upon the aggregate of the Scheduled Principal Balance of the Outstanding
Mortgage Loans, at the time of any such repurchase, aggregating less than [10]
percent of the aggregate of the Scheduled Principal Balance of the Mortgage
Loans as of the Cut-off Date.
Notice of any termination, specifying the Distribution Date upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of such final
distribution specifying (A) the Distribution Date upon which final payment of
the Certificates will be made upon presentation and surrender of the
Certificates at the office of the Trustee therein designated, (B) the amount of
any such final payment and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Trustee therein
specified. The Trustee shall give such notice to the Certificate Registrar at
the time such notice is given to Certificateholders. In the event such notice is
given in connection with the exercise by the [Depositor] [Servicer] of its right
of repurchase, the Company shall deposit in the Certificate Account not later
than 11:00 a.m. on the Business Day prior to the final Distribution Date in
next-day funds an amount equal to the price described above. Upon presentation
and surrender of the Certificates, the Trustee shall cause to be distributed to
Certificateholders an amount equal to the price calculated as above provided,
any such repurchase being in lieu of the distribution otherwise required to be
made on the Distribution Date upon which the repurchase is effected. Upon
certification to the Trustee by a Servicing Officer following such final
deposit, the Trustee shall promptly release to the [Depositor] [Servicer] the
Mortgage Files for the repurchased Mortgage Loans.
On the final Distribution Date, the Trustee shall distribute amounts on
deposit in the Certificate Account in accordance with the applicable priorities
provided by Section 4.01. Distributions on each Certificate shall be made on the
final Distribution Date in the manner specified in Section 4.02 but only upon
presentation and surrender of the Certificates.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee 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
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee 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 subject
hereto.
Section 9.02. Additional Termination Requirements. (a) In the event the
[Depositor] [Servicer] exercises its purchase option as provided in Section
9.01, the Trust Fund and [each of] the [Upper-Tier REMIC and the Lower-Tier]
REMIC established hereunder shall be terminated in accordance with the following
additional requirements, unless the Trustee has been supplied with an Opinion of
Counsel to the effect that the failure to comply with the requirements of this
Section 9.02 will not (i) result in the imposition of taxes on "prohibited
transactions" of the REMIC [either of the Upper-Tier REMIC or the Lower-Tier
REMIC] as defined in section 860F of the Code, or (ii) cause the Trust Fund
[either of the Upper-Tier REMIC or the Lower-Tier REMIC] to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date set forth
in the notice given by the Trustee under Section 9.01, the Servicer
shall prepare and the Trustee shall execute and adopt a plan of
complete liquidation for [each of] the [Upper-Tier REMIC and the
Lower-Tier] REMIC within the meaning of section 860F(a)(4)(A)(i) of
the Code, which shall be evidenced by such notice; and
(ii) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of the
Trust Fund to the [Depositor] [Servicer] for cash in accordance with
Section 9.01.
(b) By their acceptance of the Residual Certificates, the Holders thereof
hereby authorize the Trustee to adopt such a plan of complete liquidation which
authorization shall be binding on all successor Holders of the Residual
Certificates.
(c) On the final federal income tax return for [each of] the [Upper-Tier
REMIC and the Lower-Tier] REMIC established hereunder, the Trustee will attach a
statement specifying the date of the adoption of the plan of liquidation.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment. This Agreement may be amended from time to time
by the Depositor, the Servicer and the Trustee, without the consent of any of
the Certificateholders, to cure any ambiguity, to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein, or to surrender any right or power herein conferred
upon the Depositor or the Servicer, or to add any other provisions with respect
to matters or questions arising under this Agreement, which shall not be
materially inconsistent with the provisions of this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder.
Notwithstanding the foregoing, without the consent of the Certificateholders,
the Trustee and the Company may at any time and from time to time amend this
Agreement to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or appropriate to maintain the qualification of [the Trust
Fund] [each of the Upper-Tier REMIC and the Lower-Tier REMIC] as a REMIC under
the Code or to avoid or minimize the risk of the imposition of any tax on the
Trust Fund pursuant to the Code that would be a claim against the Trust Fund at
any time prior to the final redemption of the Certificates, provided that the
Trustee has obtained an opinion of independent counsel (which opinion also shall
be addressed to the Depositor and Servicer) to the effect that such action is
necessary or appropriate to maintain such qualification or to avoid or minimize
the risk of the imposition of such a tax.
This Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of Holders of Certificates evidencing
(i) not less than 66% of the Voting Rights of all the Certificates or (ii)
Percentage Interests aggregating not less than 66% of each Class affected by
such amendment, 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 (a) reduce in any manner the amount of, or delay the
timing of, collections of payments on the Mortgage Loans or distributions which
are required to be made on any Certificate without the consent of the Holder of
such Certificate, (b) adversely affect in any material respects the interests of
the Holders of any Class of Certificates in any manner other than as described
in (a), without the consent of the Holders of Certificates evidencing Percentage
Interests aggregating not less than 66% of such Class, or (c) reduce the
aforesaid percentages of Certificates of any Class required to consent to any
such amendment, without the consent of the Holders of all Certificates of such
Class then outstanding. For purposes of this paragraph, references to "Holder"
or "Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel to the effect that such amendment will not
subject the Trust Fund to tax or cause [the Trust Fund] [either of the
Upper-Tier REMIC or the Lower-Tier REMIC] to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
Promptly after the execution of any such amendment or consent the Trustee
shall furnish written notification of the substance of such amendment to each
Certificateholder.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01 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
requirements as the Trustee may prescribe.
Section 10.02. Recordation of Agreement. 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 to be effected by the
Company and at its expense on direction by the Trustee, but only upon direction
of the Trustee accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 10.03. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust
Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided in
Section 10.01) 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 person 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 default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates of each Class affected thereby evidencing, as to each
such Class, Percentage Interests aggregating not less than 25% shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit of
all Certificateholders. For the protection and enforcement of the provisions of
this Section 10.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 10.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 10.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, return receipt requested, (a) in the
case of GEMCSI, to GE Capital Mortgage Services, Inc., Three Executive Campus,
Cherry Hill, New Jersey 08002, Attention: General Counsel, [(b) in the case of
the Funding, to GE Capital Mortgage Funding Corporation, Three Executive Campus,
Suite W. 602, Cherry Hill, New Jersey, 08002 , Attention: _________ (c) in the
case of _____, to _____ and, (d) in the case of _____, to _____, or, as to each
such Person, at such other address as shall be designated by such Person in a
written notice to each other named Person. Any notice required or permitted to
be mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 10.06. Notices to the Rating Agencies. The Servicer shall deliver
written notice of the following events to each Rating Agency promptly following
the occurrence thereof: material amendment to this Agreement; any Event of
Default; any Trigger Event; change in or termination of the Trustee; removal of
the Servicer; repurchase or replacement of any Defective Mortgage Loan pursuant
to Section 2.03; and final payment to Certificateholders. In addition, the
Servicer shall deliver copies of the following documents to each Rating Agency
at the time such documents are required to be delivered pursuant to this
Agreement: monthly statements to Certificateholders pursuant to Section 4.05,
annual report of independent accountants pursuant to Section 3.13 and annual
servicer compliance report pursuant to Section 3.12. Notwithstanding the
foregoing, the failure to deliver such notices or copies shall not constitute an
Event of Default under this Agreement.
Section 10.07. 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 to the extent permitted by law 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 10.08. Certificates Nonassessable and Fully Paid. It is the
intention of the Trustee that Certificateholders shall not be personally liable
for obligations of the Trust Fund, that the beneficial ownership interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust Fund or for any reason whatsoever, and that Certificates
upon execution, countersignature and delivery thereof by the Trustee are and
shall be deemed fully paid.
* * *
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused
this Agreement to be duly executed by their respective officers and their
respective seals, duly attested, to be hereunto affixed, all as of the day and
year first above written.
GE CAPITAL MORTGAGE FUNDING
CORPORATION
By:_____________________________
Name:
Title:
GE CAPITAL MORTGAGE SERVICES, INC.
By:_____________________________
Name:
Title:
[SEAL]
Attest:
By:_______________________________
Name:
Title:
By:_____________________________
as Trustee
Name:
Title:
Attest:
By:______________________________
Name:
Title:
State of New Jersey )
) ss.:
County of Camden )
On the ____ day of _____ before me, a notary public in and for the State of
New Jersey, personally appeared _______________________, known to me who, being
by me duly sworn, did depose and say that he/she resides at
________________________ _____________________________; that he/she is a(n)
_________________________ of GE Capital Mortgage Funding Corporation, Inc., a
corporation formed under the laws of the State of New Jersey, one of the parties
that executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he/she signed his/her name thereto by like order.
----------------------------------
Notary Public
[Notarial Seal]
)
) ss.:
)
On the _____ day of _____ before me, a notary public in and for ,
personally appeared ____________________, known to me who, being by me duly
sworn, did depose and say that he/she resides at __________________
_____________________________________________________________; that he/she is
a(n) __________________________________ of ___________________________________,
one of the parties that executed the foregoing instrument; that he/she knows the
seal of said Bank; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said Bank;
and that he/she signed his/her name thereto by order of the Board of Directors
of said Bank.
----------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A
FORMS OF CERTIFICATES
FORM OF SENIOR CERTIFICATE
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. [,
GE CAPITAL MORTGAGE FUNDING CORPORATION] OR THE TRUSTEE (AS DEFINED HEREIN).
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REMIC MULTI-CLASS PASS-THROUGH CERTIFICATE, SERIES _____
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE [SERVICES, INC.] [FUNDING CORPORATION]
No. R Initial Class A_ Certificate
Principal Balance:
Class A_ $_____
Certificate Interest Initial Certificate Principal Rate
_____% per annum Balance of this Certificate:
_____
Cut-off Date:
_____
First Distribution Date: CUSIP:_____
_____
THIS CERTIFIES THAT _____
is the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the initial Certificate Principal Balance of this
Certificate by the aggregate initial Certificate Principal Balance of all Class
A_ Certificates, both as specified above) in certain distributions with respect
to the Trust Fund, consisting primarily of a pool (the "Pool") of conventional,
fixed rate, one- to four-family mortgage loans (the "Mortgage Loans"), sold [by
GE Capital Mortgage Funding Corporation, a Delaware corporation (the
"Depositor")] and serviced by GE Capital Mortgage Services, Inc., a corporation
organized and existing under the laws of the State of New Jersey (the
"Servicer"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of _____ (the "Agreement"), between the Depositor, the
Servicer and _____, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth herein below. To the extent not
defined herein, the terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
The Agreement requires the distribution on the 25th day of each month or,
if such 25th day is not a Business Day, the Business Day immediately following
(the "Distribution Date"), commencing in _____, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or
money order mailed to the Person entitled thereto at the address appearing in
the Certificate Register or, upon written request by the Certificateholder, by
such other means of payment as such Person and the Trustee shall agree. Except
as otherwise provided in the Agreement, the final distribution on this
Certificate will be made in the applicable manner described above, after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Trustee in _____.
This Certificate is one of a duly authorized issue of Certificates
designated as REMIC Multi-Class Pass-Through Certificates, Series _____, issued
in _____ Classes (Class [_____, Class R, [Class RL,] Class PO, Class M Class B1,
Class B2, Class B3, Class B4 and Class B5], herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class [M, Class B1, Class B2, Class B3, Class B4
and Class B5] Certificates before such losses will be borne by the Holders of
the other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates evidencing not less than 66% of all the
Voting Rights as defined in the Agreement. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
No transfer of any Class [M, Class B1, Class B2, Class B3, Class B4 or
Class B5] Certificate which is in the form of a Definitive Certificate shall be
made to any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee, the Depositor or the Servicer, to the effect that the purchase and
holding of such Certificate will not constitute or result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA or Section 4975 and will not subject the Trustee
or the Servicer to any obligation in addition to those undertaken in the
Agreement; provided, however, that the Trustee will not require such certificate
or opinion in the event that, as a result of a change of law or otherwise,
counsel satisfactory to the Trustee has rendered an opinion to the effect that
the purchase and holding of a Class [M, Class B1, Class B2, Class B3, Class B4
or Class B5] Certificate by a Plan or a Person that is purchasing or holding
such Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under ERISA or Section 4975.
No transfer of any Class R [or Class RL] Certificate shall be made to any
Person unless the Trustee has received a certificate from such transferee to the
effect that, among other things, such transferee (x) is not an employee benefit
plan subject to ERISA or a Plan or a Person that is using the assets of a Plan
to acquire any such Class R [or Class RL] Certificate or (y) is an insurance
company investing assets of its general account and the Exemption applies to
such transferee's acquisition and holding of any such Class R [or Class RL]
Certificate.
As provided in the Agreement, and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the
Trust Fund created thereby shall terminate upon payment to the
Certificateholders, or provision therefor, in accordance with the Agreement
following the earlier of (a) the repurchase by the [Depositor] [Servicer] of all
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund at a price equal to the sum of (x) 100% of the
unpaid principal balance of each Mortgage Loan (other than a Mortgage Loan
described in clause (y)) plus accrued and unpaid interest thereon at the rate
provided for in the Agreement (less any amounts representing previously
unreimbursed Monthly Advances) and (y) the appraised value of any property
acquired in respect of a Mortgage Loan determined as provided in the Agreement,
and (b) the later of the final payment or other liquidation (or any Monthly
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all property acquired upon foreclosure or by deed in
lieu of foreclosure of any Mortgage Loan. The right of the [Depositor]
[Servicer] to repurchase all the Mortgage Loans and property in respect of
Mortgage Loans is subject to the Pool Scheduled Principal Balance at the time of
repurchase being less than 10 percent of the Pool Scheduled Principal Balance as
of the Cut-off Date. The [Depositor] [Servicer]'s exercise of such right will
result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
-----------------------,
not in its individual capacity
but solely as Trustee
(SEAL)
By: _______________________
Name:
Title:
Countersigned:
By_______________________
Authorized Signatory of
________________________,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please insert social security
or other identifying number of assignee
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of assignee)
--------------------------------------------------------------------------------
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of like Class and Percentage Interest, to the above named assignee and deliver
such Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:________________
______________________________________
Signature by or on behalf of assignor
______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
FORM OF RESIDUAL CERTIFICATE
[PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON.] THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC.,
[GE CAPITAL MORTGAGE FUNDING CORPORATION] OR THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE,
BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THE AGREEMENT, AND SHALL
BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE
EFFECT THAT IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION, OR AN ENTITY THAT HOLDS REMIC
RESIDUAL SECURITIES AS NOMINEE TO FACILITATE THE CLEARANCE AND SETTLEMENT OF
SUCH SECURITIES THROUGH BOOK-ENTRY CHANGES IN ACCOUNTS OF PARTICIPATING
ORGANIZATIONS (A "BOOK-ENTRY NOMINEE") AND TO HAVE AGREED TO SUCH AMENDMENTS TO
THE AGREEMENT AS MAY BE REQUIRED TO FURTHER EFFECTUATE THE RESTRICTIONS ON
TRANSFERS TO DISQUALIFIED ORGANIZATIONS, AGENTS THEREOF OR BOOK-ENTRY NOMINEES.
THE HOLDER OF THIS CLASS R CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
IRREVOCABLY APPOINTED THE SERVICER (AS DEFINED HEREIN) AS ITS AGENT AND
ATTORNEY-IN-FACT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE, WITH RESPECT TO THE TRUST FUND.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY DISQUALIFIED
ORGANIZATION, BOOK-ENTRY NOMINEE OR NON-PERMITTED FOREIGN HOLDER, AS DEFINED IN
THE AGREEMENT OR TO ANY EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR A PLAN SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED ("SECTION 4975") (A
"PLAN") OR A PERSON THAT IS USING THE ASSETS OF A PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE TRANSFER OF THIS CERTIFICATE IS
SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET FORTH HEREIN.
REMIC MULTI-CLASS PASS-THROUGH CERTIFICATE, SERIES _____
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE [SERVICES, INC.] [FUNDING CORPORATION]
No. R Initial Class R Certificate
Principal Balance:
Class R [$100]
Certificate Interest Initial Certificate Principal Rate
_____% per annum: Balance of this Certificate:
-----
Cut-off Date:
_____
First Distribution Date: CUSIP: _____
_____
THIS CERTIFIES THAT _____
is the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the initial Certificate Principal Balance of this
Certificate by the aggregate initial Certificate Principal Balance of all Class
R Certificates, both as specified above) in certain distributions with respect
to the Trust Fund, consisting primarily of a pool (the "Pool") of conventional,
fixed rate, one- to four-family mortgage loans (the "Mortgage Loans"), sold [by
GE Capital Mortgage Funding Corporation, a Delaware corporation (the
"Depositor")] and serviced by GE Capital Mortgage Services, Inc., a corporation
organized and existing under the laws of the State of New Jersey (the
"Servicer"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of _____ (the "Agreement"), between the Depositor, the
Servicer and _____, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth herein below. To the extent not
defined herein, the terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
The Agreement requires the distribution on the 25th day of each month or,
if such 25th day is not a Business Day, the Business Day immediately following
(the "Distribution Date"), commencing in _____, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or
money order mailed to the Person entitled thereto at the address appearing in
the Certificate Register or, upon written request by the Certificateholder, by
such other means of payment as such Person and the Trustee shall agree. Except
as otherwise provided in the Agreement, the final distribution on this
Certificate will be made in the applicable manner described above, after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Trustee in _____.
This Certificate is one of a duly authorized issue of Certificates
designated as REMIC Multi-Class Pass-Through Certificates, Series _____, issued
in _____ Classes (Class [_____, Class R, [Class RL,] Class PO, Class M, Class
B1, Class B2, Class B3, Class B4 and Class B5,] herein called the
"Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class [M, Class B1, Class B2, Class B3, Class B4
and Class B5] Certificates before such losses will be borne by the Holders of
the other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates evidencing not less than 66% of all the
Voting Rights as defined in the Agreement. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
No transfer of any Class [M, Class B1, Class B2, Class B3, Class B4 or
Class B5] Certificate which is in the form of a Definitive Certificate shall be
made to any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee, the Depositor or the Servicer, to the effect that the purchase and
holding of such Certificate will not constitute or result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA or Section 4975 and will not subject the Trustee
or the Servicer to any obligation in addition to those undertaken in the
Agreement; provided, however, that the Trustee will not require such certificate
or opinion in the event that, as a result of a change of law or otherwise,
counsel satisfactory to the Trustee has rendered an opinion to the effect that
the purchase and holding of a Class [M, Class B1, Class B2, Class B3, Class B4
or Class B5] Certificate by a Plan or a Person that is purchasing or holding
such Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under ERISA or Section 4975.
No transfer of any Class R [or Class RL] Certificate shall be made to any
Person unless the Trustee has received a certificate from such transferee to the
effect that, among other things, such transferee (x) is not an employee benefit
plan subject to ERISA or a Plan or a Person that is using the assets of a Plan
to acquire any such Class R [or Class RL] Certificate or (y) is an insurance
company investing assets of its general account and the Exemption applies to
such transferee's acquisition and holding of any such Class R [or Class RL]
Certificate.
As provided in the Agreement, and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the
Trust Fund created thereby shall terminate upon payment to the
Certificateholders, or provision therefor, in accordance with the Agreement
following the earlier of (a) the repurchase by the [Depositor] [Servicer] of all
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund at a price equal to the sum of (x) 100% of the
unpaid principal balance of each Mortgage Loan (other than a Mortgage Loan
described in clause (y)) plus accrued and unpaid interest thereon at the rate
provided for in the Agreement (less any amounts representing previously
unreimbursed Monthly Advances) and (y) the appraised value of any property
acquired in respect of a Mortgage Loan determined as provided in the Agreement,
and (b) the later of the final payment or other liquidation (or any Monthly
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all property acquired upon foreclosure or by deed in
lieu of foreclosure of any Mortgage Loan. The right of the [Depositor]
[Servicer] to repurchase all the Mortgage Loans and property in respect of
Mortgage Loans is subject to the Pool Scheduled Principal Balance at the time of
repurchase being less than 10 percent of the Pool Scheduled Principal Balance as
of the Cut-off Date. The [Depositor] [Servicer]'s exercise of such right will
result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
_______________________________
not in its individual
capacity but solely as Trustee
(SEAL)
By: ___________________________
Name:
Title:
Countersigned:
By_____________________________
Authorized Signatory of
_______________________________
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please insert social security
or other identifying number of assignee
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of assignee)
--------------------------------------------------------------------------------
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of like Class and Percentage Interest, to the above named assignee and deliver
such Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:_______________
_____________________________________
Signature by or on behalf of assignor
______________________________________
*Signature Guaranteed*
* The signature hereon must be guaranteed by a bank, trust company or broker
of the signatory who is a member of a signature guarantee medallion
program.
FORM OF JUNIOR CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. [,
GE CAPITAL MORTGAGE FUNDING CORPORATION] OR THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MULTI-CLASS PASS-THROUGH CERTIFICATE, SERIES _____
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE [SERVICES, INC.] [FUNDING CORPORATION]
No. R Initial Class [M] Certificate
Principal Balance:
Class [M] $_____
Certificate Interest Initial Certificate Principal Rate
_____% per annum: Balance of this Certificate:
_____
Cut-off Date:
_____
First Distribution Date: CUSIP: __________
_____
THIS CERTIFIES THAT _____
is the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the initial Certificate Principal Balance of this
Certificate by the aggregate initial Certificate Principal Balance of all Class
[M] Certificates, both as specified above) in certain distributions with respect
to the Trust Fund, consisting primarily of a pool (the "Pool") of conventional,
fixed rate, one- to four-family mortgage loans (the "Mortgage Loans"), sold [by
GE Capital Mortgage Funding Corporation, a Delaware corporation (the
"Depositor") and serviced by GE Capital Mortgage Services, Inc., a corporation
organized and existing under the laws of the State of New Jersey (the "Servicer
"). The Trust Fund was created pursuant to a Pooling and Servicing Agreement
dated as of _____ (the "Agreement"), between the Depositor, the Servicer and
_____, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth herein below. To the extent not defined herein,
the terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or,
if such 25th day is not a Business Day, the Business Day immediately following
(the "Distribution Date"), commencing in _____, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or
money order mailed to the Person entitled thereto at the address appearing in
the Certificate Register or, upon written request by the Certificateholder, by
such other means of payment as such Person and the Trustee shall agree. Except
as otherwise provided in the Agreement, the final distribution on this
Certificate will be made in the applicable manner described above, after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Trustee _____.
This Certificate is one of a duly authorized issue of Certificates
designated as REMIC Multi-Class Pass-Through Certificates, Series _____, issued
in _____ Classes (Class [_____, Class R, [Class RL], Class PO, Class M, Class
B1, Class B2, Class B3, Class B4 and Class B5], herein called the
"Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class [M, Class B1, Class B2, Class B3, Class B4
and Class B5] Certificates before such losses will be borne by the Holders of
the other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates evidencing not less than 66% of all the
Voting Rights as defined in the Agreement. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
No transfer of any Class [M, Class B1, Class B2, Class B3, Class B4 or
Class B5] Certificate which is in the form of a Definitive Certificate shall be
made to any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee, the Depositor or the Servicer or, to the effect that the purchase and
holding of such Certificate will not constitute or result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA or Section 4975 and will not subject the Trustee
or the Servicer to any obligation in addition to those undertaken in the
Agreement; provided, however, that the Trustee will not require such certificate
or opinion in the event that, as a result of a change of law or otherwise,
counsel satisfactory to the Trustee has rendered an opinion to the effect that
the purchase and holding of a Class [M, Class B1, Class B2, Class B3, Class B4
or Class B5] Certificate by a Plan or a Person that is purchasing or holding
such Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under ERISA or Section 4975.
No transfer of any Class R [or Class RL] Certificate shall be made to any
Person unless the Trustee has received a certificate from such transferee to the
effect that, among other things, such transferee (x) is not an employee benefit
plan subject to ERISA or a Plan or a Person that is using the assets of a Plan
to acquire any such Class R [or Class RL] Certificate or (y) is an insurance
company investing assets of its general account and the Exemption applies to
such transferee's acquisition and holding of any such Class R [or Class RL]
Certificate.
As provided in the Agreement, and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the
Trust Fund created thereby shall terminate upon payment to the
Certificateholders, or provision therefor, in accordance with the Agreement
following the earlier of (a) the repurchase by the [Depositor] [Servicer] of all
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund at a price equal to the sum of (x) 100% of the
unpaid principal balance of each Mortgage Loan (other than a Mortgage Loan
described in clause (y)) plus accrued and unpaid interest thereon at the rate
provided for in the Agreement (less any amounts representing previously
unreimbursed Monthly Advances) and (y) the appraised value of any property
acquired in respect of a Mortgage Loan determined as provided in the Agreement,
and (b) the later of the final payment or other liquidation (or any Monthly
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all property acquired upon foreclosure or by deed in
lieu of foreclosure of any Mortgage Loan. The right of the [Depositor]
[Servicer] to repurchase all the Mortgage Loans and property in respect of
Mortgage Loans is subject to the Pool Scheduled Principal Balance at the time of
repurchase being less than 10 percent of the Pool Scheduled Principal Balance as
of the Cut-off Date. The [Depositor] [Servicer]'s exercise of such right will
result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
_______________________________
not in its individual
capacity but solely as Trustee
(SEAL)
By: ___________________________
Name:
Title:
Countersigned:
By_____________________________
Authorized Signatory of
_______________________________
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please insert social security
or other identifying number of assignee
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of assignee)
--------------------------------------------------------------------------------
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of like Class and Percentage Interest, to the above named assignee and deliver
such Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:_________________
_____________________________________
Signature by or on behalf of assignor
______________________________________
*Signature Guaranteed*
* The signature hereon must be guaranteed by a bank, trust company or broker
of the signatory who is a member of a signature guarantee medallion
program.
EXHIBIT B
PRINCIPAL BALANCE SCHEDULES
EXHIBIT C
MORTGAGE LOANS
[Each Mortgage Loan shall be identified by loan number, address of the
Mortgaged Property and name of the Mortgagor. The following details shall be set
forth as to each Mortgage Loan: (i) the principal balance at the time of its
origination, (ii) the Scheduled Principal Balance as of the Cut-off Date, (iii)
the interest rate borne by the Mortgage Note, (iv) the scheduled monthly level
payment of principal and interest, (v) the Loan-To-Value ratio, (vi) the
maturity date of the Mortgage Note and (vii) the Base Servicing Fee Rate for
such Mortgage Loan. Cooperative Loans and Enhanced Streamlined Refinance program
loans shall be designated as such.]
EXHIBIT D
FORM OF SERVICER'S CERTIFICATE
----------------, ------
(month) (year)
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC Multi-Class Pass-Through Certificates,
Series _____
Pursuant to the Pooling and Servicing Agreement dated as of _____ (the
"Agreement") between GE Capital Mortgage Services, Inc. (the "Company"), and
_____ (the "Trustee"), governing the Certificates referred to above, the Company
hereby certifies to the Trustee:
With respect to the Agreement and as of the Determination Date for this
month:
A. Mortgage Loan Information:
(1) Aggregate Scheduled Monthly Payments:
(a) Principal $________
(b) Interest $________
(c) Total $________
(2) Aggregate Monthly Payments received and Monthly Advances made this
Month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(3) Aggregate Principal Prepayments in part received and applied in the
applicable Prepayment Period:
(a) Principal $________
(b) Interest $________
(c) Total $________
(4) Aggregate Principal Prepayments in full received in the applicable
Prepayment Period:
(a) Principal $________
(b) Interest $________
(c) Total $________
(5) Aggregate Insurance Proceeds (including purchases of
Mortgage Loans by primary mortgage insurers) for prior
month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(6) Aggregate Liquidation Proceeds for prior month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(7) Aggregate Purchase Prices for Defaulted Mortgage Loans:
(a) Principal $________
(b) Interest $________
(c) Total $________
(8) Aggregate Purchase Prices (and substitution adjustments) for Defective
Mortgage Loans:
(a) Principal $________
(b) Interest $________
(c) Total $________
(9) Pool Scheduled Principal Balance: $________
(10) Available Funds: $________
(11) Realized Losses for prior month: $________
(12) Aggregate Realized Losses and Debt Service Reductions:
(a) Deficient Valuations $________
(b) Special Hazard Losses $________
(c) Fraud Losses $________
(d) Excess Bankruptcy Losses $________
(e) Excess Special Hazard Losses $________
(f) Excess Fraud Losses $________
(g) Debt Service Reductions $________
(13) Compensating Interest Payment: $________
(14) Accrued Certificate Interest, Unpaid Class Interest
Shortfalls and Pay-out Rate:
[Classes of Certificates] $________ $________ __________%
(15) Accrual Amount:
[Class of Certificates] $________
(16) Principal distributable:
[Classes of Certificates] $________
(17) Additional distributions to the [Class RL Certificates
pursuant to Sections 2.05(d) and the] Class R Certificates
pursuant to Section 4.01(b):
[Class RL $________]
Class R $________
(18) Distributions Allocable to Unanticipated Recoveries:
[Classes of Certificates] $_____________
B. Other Amounts:
1. Senior Percentage for such Distribution Date: _____________%
2. Senior Prepayment Percentage for such
Distribution Date: _____________%
3. Junior Percentage for such Distribution Date: _____________%
4. Junior Prepayment Percentage for such
Distribution Date: _____________%
5. [Group II Senior Percentage for such
Distribution Date: _____________%]
6. [Group II Senior Scheduled Distribution
Percentage for such Distribution Date: _____________%]
7. [Group II Senior Prepayment Distribution
Percentage for such Distribution Date: _____________%]
8. Subordinate Certificate Writedown Amount for
such Distribution Date: $_____________
9. Prepayment Distribution Triggers satisfied: Yes No
--- --
[Classes of Junior Certificates, excepting Class M
Certificates]
10. Base Servicing Fee: _____________%
11. Supplemental Servicing Fee: $_____________
Capitalized terms used in this Certificate shall have the same meanings as
in the Agreement.
EXHIBIT E
FORM OF TRANSFER CERTIFICATE AS TO ERISA MATTERS FOR
DEFINITIVE ERISA-RESTRICTED CERTIFICATES
[Name and address of Trustee]
[NAME OF OFFICER] ______________________ hereby certifies that:
1. That he [she] is [title of officer] ___________________________________
of [name of Investor] _______________________________________ (the "Investor"),
a __________ ______________________ [description of type of entity] duly
organized and existing under the laws of the [State of ____________] [United
States], on behalf of which he [she] makes this affidavit.
2. The Investor (i) is not, and on ________________ [insert date of
transfer of Certificate to Investor] will not be, and on such date will not be
investing the funds of, an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or a plan subject
to Section 4975 of the Code or (ii) is an insurance company investing assets of
its general account and the exemptions provided by Section III(a) of Department
of Labor Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July
12, 1995) (the "Exemptions") apply to the Investor's acquisition and holding or
any ERISA-Restricted Certificate.
3. The Investor hereby acknowledges that under the terms of the Pooling and
Servicing Agreement (the "Agreement") between __________________, as Trustee [,
GE Capital Mortgage Funding Corporation] and GE Capital Mortgage Services, Inc.,
dated as of __________________, no transfer of any ERISA-Restricted Certificate
shall be permitted to be made to any person unless the Trustee has received (i)
a certificate from such transferee to the effect that (x) such transferee is not
an employee benefit plan subject to ERISA or a plan subject to Section 4975 of
the Code (a "Plan") and is not using the assets of any such employee benefit or
other plan to acquire any such Certificate or (y) such transferee is an
insurance company investing assets of its general account and the Exemptions
apply to such transferee's acquisition and holding of any such Certificate or
(ii) an opinion of counsel satisfactory to the Trustee to the effect that the
purchase and holding of any such Certificate will not constitute or result in
the assets of the Trust Fund created by the Agreement being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement (provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of any such
Certificate by a Plan or a Person that is purchasing or holding any such
Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under ERISA or Section 4975 of the Code).
[4. The ERISA-Restricted Certificates shall be registered in the name of
______________________________________________ as nominee for the Investor.]
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] __________________ and its corporate seal to be hereunder attached,
attested by its [Assistant] Secretary, this ____ day of _________, ___.
__________________________________
[name of Investor]
By: ______________________________
Name:
Title:
The undersigned
hereby acknowledges that
it is holding and will
hold the ERISA-Restricted
Certificates at the
exclusive direction of
and as nominee of the
Investor named above.
______________________________
[name of nominee]
By:___________________________
Name:
Title:
EXHIBIT F
FORM OF RESIDUAL CERTIFICATE TRANSFEREE AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and says:
1. That he [she] is [title of officer] ________________________ of [name of
Purchaser] _________________________________________ (the "Purchaser"), a
_________________ ____________________ [description of type of entity] duly
organized and existing under the laws of the [State of __________] [United
States], on behalf of which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code") and will not be a "disqualified organization" as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate (as
defined below) for the account of, or as agent (including a broker, nominee, or
other middleman) for, any person or entity from which it has not received an
affidavit substantially in the form of this affidavit. For these purposes, a
"disqualified organization" means the United States, any state or political
subdivision thereof, any foreign government, any international organization, any
agency or instrumentality of any of the foregoing (other than an instrumentality
if all of its activities are subject to tax and a majority of its board of
directors is not selected by such governmental entity), any cooperative
organization furnishing electric energy or providing telephone service to
persons in rural areas as described in Code Section 1381(a)(2)(C), or any
organization (other than a farmers' cooperative described in Code Section 521)
that is exempt from federal income tax unless such organization is subject to
the tax on unrelated business income imposed by Code Section 511. As used
herein, "Residual Certificate" means any Certificate designated as a "Class R
Certificate" [or "Class RL Certificate"] of GE Capital Mortgage [Services, Inc.]
[Funding Corporation]'s REMIC Multi-Class Pass-Through Certificates, Series
______.
4. That the Purchaser is not, and on __________ [insert date of transfer of
Residual Certificate to Purchaser] will not be, and is not and on such date will
not be investing the assets of, an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or a plan subject
to Code Section 4975 or a person or entity that is using the assets of any
employee benefit plan or other plan to acquire a Residual Certificate.
5. That the Purchaser hereby acknowledges that under the terms of the
Pooling and Servicing Agreement (the "Agreement") between __________, as
Trustee, and GE Capital Mortgage Services, Inc., dated as of __________, no
transfer of the Residual Certificates shall be permitted to be made to any
person unless the Trustee has received a certificate from such transferee to the
effect that such transferee is not an employee benefit plan subject to ERISA or
a plan subject to Section 4975 of the Code and is not using the assets of any
employee benefit plan or other plan to acquire Residual Certificates.
6. That the Purchaser does not hold REMIC residual securities as nominee to
facilitate the clearance and settlement of such securities through electronic
book-entry changes in accounts of participating organizations (such entity, a
"Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to such Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof are
not satisfied or that the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without obtaining from
the prospective Purchaser an affidavit substantially in this form and providing
to the Trustee a written statement substantially in the form of Exhibit G to the
Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated with
holding such Residual Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Trustee with an effective Internal Revenue Service Form 4224 or successor
form at the time and in the manner required by the Code or (iii) is a Non-U.S.
Person that has delivered to both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the transfer of such
Residual Certificate to it is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax purposes. "Non-U.S.
Person" means an individual, corporation, partnership or other person other than
a citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust that is subject to U.S.
federal income tax regardless of the source of its income.
11. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of any Residual Certificate to such a "disqualified organization," an
agent thereof, a Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Company as its
agent to act as "tax matters person" of the Trust Fund [Upper-Tier REMIC or
Lower-Tier REMIC, as applicable,] pursuant to the Pooling and Servicing
Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, __.
________________________________
[name of Purchaser]
By: ___________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, __.
NOTARY PUBLIC
______________________________
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, __.
EXHIBIT G
[LETTER FROM TRANSFEROR OF RESIDUAL CERTIFICATE]
-------------------
Date
[Name and address of Trustee]
Re: GE Capital Mortgage [Services, Inc.] [Funding Corporation]
REMIC Multi-Class Pass-Through
Certificates, Series_____
Ladies and Gentlemen:
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate. In addition, the Transferor has conducted a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
__________________________
Name:
Title:
EXHIBIT H
ADDITIONAL SERVICER COMPENSATION
QUALIFIED ADMINISTRATIVE EXPENSES
(Conventional, Non-Conforming Loans)
Assumption Fees $[_______]
Late Charges Per Loan Documents
Appraisal/Inspection Fees Reasonable and Customary Charges
Partial Release Fees $[_______]
Easements $[_______]
Insufficient Funds Charges $[_______]
Document Requests (copies of loan file
documents, additional pay-off quotations,
amortization schedules, payment histories) $[_______]
Modification Fees Reasonable and Customary Charges
EXHIBIT I
FORM OF INVESTMENT LETTER FOR
DEFINITIVE RESTRICTED CERTIFICATES
---------------------
Date
[Name and address of Trustee]
Re: GE Capital Mortgage [Services, Inc.] [Funding Corporation]
REMIC Multi-Class Pass Through
Certificates, Series
____________________
Ladies and Gentlemen:
1. The undersigned, a [title of officer] _______________ of [name of
Investor] ______________________________ (the "Investor"), a ______________
___________________ [description of type of entity] duly organized and existing
under the laws of the [State of __________________] [United States], hereby
certifies as follows:
2. The Investor hereby acknowledges that under the terms of the Pooling and
Servicing Agreement between __________, as Trustee, [GE Capital Mortgage Funding
Corporation (the "Depositor")] and GE Capital Mortgage Services, Inc. (the
"Depositor"), dated as of __________ (the "Agreement"), no transfer of a
Restricted Certificate may be made unless such transfer is exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities laws, or is made in
accordance with the Securities Act and such laws.
3. The Investor understands that (a) the Restricted Certificates have not
been and will not be registered or qualified under the Securities Act, or the
securities laws of any state, (b) neither the Depositor nor the Trustee is
required, and neither intends, to so register or qualify the Restricted
Certificates, (c) the Restricted Certificates cannot be resold unless (i) they
are registered and qualified under the Securities Act and the applicable state
securities laws or (ii) such sale is exempt from the requirements of the
Securities Act, (d) the Agreement contains restrictions regarding the transfer
of the Restricted Certificates and (e) the Restricted Certificates will bear a
legend to the foregoing effect.
4. The Investor is acquiring the Restricted Certificates for its own
account for investment only and not with a view to or for sale or other transfer
in connection with any distribution of the Restricted Certificates in any manner
that would violate the Securities Act or any applicable state securities laws.
5. The Investor (a) is a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters, and in
particular in such matters related to securities similar to the Restricted
Certificates, such that it is capable of evaluating the merits and risks of
investment in the Restricted Certificates, (b) is able to bear the economic
risks of such an investment and (c) is an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) promulgated pursuant to the
Securities Act.
6. The Investor will not authorize nor has it authorized any person to (a)
offer, pledge, sell, dispose of or otherwise transfer any Restricted
Certificate, any interest in any Restricted Certificate or any other similar
security to any person in any manner, (b) solicit any offer to buy or to accept
a pledge, disposition or other transfer of any Restricted Certificate, any
interest in any Restricted Certificate or any other similar security from any
person in any manner, (c) otherwise approach or negotiate with respect to any
Restricted Certificate, any interest in any Restricted Certificate or any other
similar security with any person in any manner, (d) make any general
solicitation by means of general advertising or in any other manner, or (e) take
any other action that would constitute a distribution of any Restricted
Certificate under the Securities Act, that would render the disposition of any
Restricted Certificate a violation of Section 5 of the Securities Act or any
state securities law, or that could require registration or qualification
pursuant thereto. Neither the Investor nor anyone acting on its behalf has
offered the Restricted Certificates for sale or made any general solicitation by
means of general advertising or in any other manner with respect to the
Restricted Certificates. The Investor will not sell or otherwise transfer any of
the Restricted Certificates, except in compliance with the provisions of the
Agreement.
7. If an Investor in a Restricted Certificate sells or otherwise transfers
any such Certificate to a transferee other than a "qualified institutional
buyer" under Rule 144A of the Securities Act, such Investor will obtain (a) from
any subsequent purchaser the same certifications, representations, warranties
and covenants contained in the foregoing paragraphs and in this paragraph or (b)
an opinion of counsel in form and substance satisfactory to the Trustee pursuant
to the Agreement.
8. The Investor hereby indemnifies the Trustee and the Depositor against
any liability that may result if the Investor's transfer of a Restricted
Certificate (or any portion thereof) is not exempt from the registration
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws. Such indemnification
of the Trustee and the Company shall survive the termination of the Agreement.
[9. The Restricted Certificates shall be registered in the name of
_____________________________ as nominee for the Investor.]
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] _____________ this _____ day of __________, __.
__________________________________
[name of Investor]
By: ______________________________
Name:
Title:
The undersigned
hereby acknowledges that
it is holding and will
hold the Restricted
Certificates at the
exclusive direction of
and as nominee of the
Investor named above.
______________________________
[name of nominee]
By:___________________________
Name:
Title:
EXHIBIT J
FORM OF DISTRIBUTION DATE STATEMENT
-----------------, ------
(month) (year)
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC Multi-Class Pass-Through Certificates,
Series
Pursuant to the Pooling and Servicing Agreement dated as of __________ (the
"Agreement") between GE Capital Mortgage Services, Inc. (the "Company"), and
__________ (the "Trustee"), governing the Certificates referred to above, the
Company hereby certifies to the Trustee:
With respect to the Agreement and as of the Determination Date for this
month:
The amounts below are for a Single Certificate of $1,000:
(1) Amount of distribution allocable to principal:
[Classes of Certificates] $__________
(2) Aggregate principal prepayments included in distribution:
[Classes of Certificates] $__________
(3) Amount of distribution allocable to interest; Pay-out Rate:
[Classes of Certificates] $__________ ____________%
(4) Accrual Amount:
[Classes of Certificates] $__________
(5) Amount of distribution allocable to Unanticipated Recoveries:
[Classes of Certificates] $__________ ____________%
(6) Servicing Compensation:
[Classes of Certificates] $__________
The amounts below are for the aggregate of all Certificates:
(7) Pool Scheduled Principal Balance;
number of Mortgage Loans:
$__________
(8) Class Certificate Principal Balance (or Notional Principal Balance) of each
Class; Certificate Principal Balance (or Notional Principal Balance) of Single
Certificate of each Class:
Single Certificate
Class Balance Balance
----- ------- -------
[Classes of Certificates] $__________ $__________
(9) Book value of real estate acquired on
behalf of Certificate-holders; number of related
Mortgage Loans: $__________ __________
(10) Aggregate Scheduled Principal
Balance and number of delinquent
Mortgage Loans:
30-59 days delinquent $__________ __________
60-89 days delinquent $__________ __________
90 or more days delinquent $__________ __________
In foreclosure $__________ __________
(11) Aggregate Scheduled Principal Balance and number of
replaced Mortgage
Loans: $__________ __________
(12) Aggregate Scheduled Principal Balance and number of
modified Mortgage
Loans: $__________ __________
(13) Senior Percentage for such Distribution __________%
Date:
(14) Senior Prepayment Percentage for such __________%
Distribution Date:
(15) [Group II Senior Percentage for such __________%]
Distribution Date:
(16) [Group II Senior Scheduled Distribution __________%]
Percentage for such Distribution Date:
(17) [Group II Senior Prepayment Distribution __________%]
Percentage for such Distribution Date:
(18) Junior Percentage for such Distribution __________%
Date:
(19) Junior Prepayment Percentage for such __________%
Distribution Date:
Capitalized terms used in this Statement shall have the same meanings as in
the Agreement.
EXHIBIT K
FORM OF SPECIAL SERVICING
AND COLLATERAL FUND AGREEMENT
This SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT (the "Agreement") is
made and entered into as of ____________________, ____, between GE Capital
Mortgage Services, Inc. (the "Servicer") and _____________________________ (the
"Purchaser").
PRELIMINARY STATEMENT
___________________________ or an affiliate thereof is the holder of the
entire interest in REMIC Multi-Class Pass-Through Certificates, Series , Class
B_ (the "Class B_ Certificates"). The Class B_ Certificates were issued pursuant
to a Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
dated as of ________ 1, ___ between the Company (in its capacity as servicer
thereunder, the "Servicer") [GE Capital Mortgage Funding Corporation] and State
Street Bank and Trust Company as Trustee.
____________________________ or an affiliate thereof intends to resell all
of the Class B_ Certificates directly to the Purchaser on or promptly after the
date hereof.
In connection with such sale, the parties hereto have agreed that the
Servicer will engage in certain special servicing procedures relating to
foreclosures for the benefit of the Purchaser, and that the Purchaser will
deposit funds in a collateral fund to cover any losses attributable to such
procedures as well as all advances and costs in connection therewith, as set
forth herein.
[The parties hereto have further agreed that the Purchaser will have no
rights, and the Company will have no obligations under this Agreement until the
Class Certificate Principal Balance of the REMIC Multi-Class Pass-Through
Certificates, Series , Class B (the "Class B Certificates") has been reduced to
zero, and any Special Servicing and Collateral Fund Agreement in respect of such
Class between the Company and the Purchaser has been terminated.]
In consideration of the mutual agreements herein contained, the receipt and
sufficiency of which are hereby acknowledged, the Servicer and the Purchaser
agree that the following provisions shall become effective and shall be binding
on and enforceable by the Servicer and the Purchaser upon the acquisition by the
Purchaser of the Class B_ Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday of (ii) a day
on which banking institutions in New York City or Boston, Massachusetts are
required or authorized by law or executive order to be closed.
Collateral Fund: The fund established and maintained pursuant to Section
3.01 hereof.
Collateral Fund Permitted Investments: Either (i) obligations of, or
obligations fully guaranteed as to principal and interest by, the United States,
or any agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States, (ii) repurchase agreements on
obligations specified in clause (i) provided that the unsecured obligations of
the party agreeing to repurchase such obligations are at the time rated by each
Rating Agency in the highest long-term rating category, (iii) federal funds,
certificates of deposit, time deposits and banker's acceptances of any U.S.
depository institution or trust company incorporated under the laws of the
United States or any state provided that the debt obligations of such depository
institution or trust company at the date of acquisition thereof have been rated
by each Rating Agency in the highest long-term rating category, (iv) commercial
paper of any corporation incorporated under the laws of the United States or any
state thereof which on the date of acquisition has the highest short term rating
of each Rating Agency, and (v) other obligations or securities that are
acceptable to each Rating Agency as a Collateral Fund Permitted Investment
hereunder and will not, as evidenced in writing, result in a reduction or
withdrawal in the then current rating of the Certificates and, for each of the
preceding clauses, the maturity thereof shall be not later than the earlier to
occur of (A) 30 days from the date of the related investment and (B) the
Business Day preceding the next succeeding Distribution Date.
Commencement of Foreclosure: The first official action required under local
law in order to commence foreclosure proceedings or to schedule a trustee's sale
under a deed of trust, including (i) in the case of a mortgage, any filing or
service of process necessary to commence an action to foreclose, or (ii) in the
case of a deed of trust, the posting, publishing, filing or delivery of a notice
of sale, but not including in either case (x) any notice of default, notice of
intent to foreclose or sell or any other action prerequisite to the actions
specified in (i) or (ii) above and, upon the consent of the Purchaser which will
be deemed given unless expressly withheld within two Business Days of
notification, (y) the acceptance of a deed-in-lieu of foreclosure (whether in
connection with a sale of the related property or otherwise) or (z) initiation
and completion of a short pay-off.
Current Appraisal: With respect to any Mortgage Loan as to which the
Purchaser has made an Election to Delay Foreclosure, an appraisal of the related
Mortgaged Property obtained by the Purchaser as nearly contemporaneously as
practicable to the time of the Purchaser's election, prepared based on the
Servicer's customary requirements for such appraisals.
Election to Delay Foreclosure: Any election by the Purchaser to delay the
Commencement of Foreclosure, made in accordance with Section 2.02(b).
Election to Foreclose: Any election by the Purchaser to proceed with the
Commencement of Foreclosure, made in accordance with Section 2.03(a).
Required Collateral Fund Balance: As of any date of determination, an
amount equal to the aggregate of all amounts previously required to be deposited
in the Collateral Fund pursuant to Section 2.02(d) (after adjustments for all
withdrawals and deposits prior to such date pursuant to Section 2.02(e)) and
Section 2.03(b) (after adjustment for all withdrawals and deposits prior to such
date pursuant to Section 2.03(c)) and Section 3.02, reduced by all withdrawals
therefrom prior to such date pursuant to Section 2.02(g) and Section 2.03(d).
Section 1.02. Definitions Incorporated by Reference. All capitalized terms
not otherwise defined in this Agreement shall have the meanings assigned in the
Pooling and Servicing Agreement.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
the Servicer shall provide to the Purchaser the following notices and reports:
(i) Within five Business Days after each Distribution Date (or
included in or with the monthly statements to Certificateholders
pursuant to the Pooling and Servicing Agreement), the Servicer, shall
provide to the Purchaser a report, using the same methodology and
calculations in its standard servicing reports, indicating for the
Trust Fund the number of Mortgage Loans that are (A) thirty days, (B)
sixty days, (C) ninety days or more delinquent or (D) in foreclosure,
and indicating for each such Mortgage Loan the loan number and
outstanding principal balance.
(ii) Prior to the Commencement of Foreclosure in connection with
any Mortgage Loan, the Servicer shall provide the Purchaser with a
notice (sent by facsimile transmission) of such proposed and imminent
foreclosure, stating the loan number and the aggregate amount owing
under the Mortgage Loan. Such notice may be provided to the Purchaser
in the form of a copy of a referral letter from the Servicer to an
attorney requesting the institution of foreclosure or a copy of a
request to foreclose received by the Company from the related primary
servicer which has been approved by the Servicer.
(b) If requested by the Purchaser, the Servicer shall make its servicing
personnel available (during their normal business hours) to respond to
reasonable inquiries, in writing by facsimile transmission, by the Purchaser in
connection with any Mortgage Loan identified in a report under subsection (a)(i)
or (a)(ii) which has been given to the Purchaser, provided, that (1) the
Servicer shall only be required to provide information that is readily
accessible to its servicing personnel and is non-confidential and (2) the
Servicer shall respond within five Business Days orally or in writing by
facsimile transmission.
(c) In addition to the foregoing, the Servicer shall provide to the
Purchaser such information as the Purchaser may reasonably request concerning
each Mortgage Loan that is at least sixty days delinquent and each Mortgage Loan
which has become real estate owned, through the final liquidation thereof,
provided, that the Servicer shall only be required to provide information that
is readily accessible to its servicing personnel and is non-confidential.
Section 2.02. Purchaser's Election to Delay Foreclosure Proceedings.
(a) The Purchaser shall be deemed to direct the Servicer that in the event
that the Servicer does not receive written notice of the Purchaser's election
pursuant to subsection (b) below within 24 hours (exclusive of any intervening
non-Business Days) of transmission of the notice provided by the Servicer under
Section 2.01(a)(ii) subject to extension as set forth in Section 2.02(b), the
Servicer may proceed with the Commencement of Foreclosure in respect of such
Mortgage Loan in accordance with its normal foreclosure policies without further
notice to the Purchaser. Any foreclosure that has been initiated may be
discontinued (i) without notice to the Purchaser if the Mortgage Loan has been
brought current or if a refinancing or prepayment occurs with respect to the
Mortgage Loan (including by means of a short payoff approved by the Servicer) or
(ii) with notice to the Purchaser if the Servicer has reached the terms of a
forbearance agreement with the borrower. In such latter case the Servicer may
complete such forbearance agreement unless instructed otherwise by the Purchaser
within two Business Days of notification.
(b) In connection with any Mortgage Loan with respect to which a notice
under Section 2.01(a)(ii) has been given to the Purchaser, the Purchaser may
elect to instruct the Servicer to delay the Commencement of Foreclosure until
such time as the Purchaser determines that the Servicer may proceed with the
Commencement of Foreclosure. Such election must be evidenced by written notice
received within 24 hours (exclusive of any intervening non-Business Days) of
transmission of the notice provided by the Servicer under Section 2.01(a)(ii).
The Purchaser shall send a copy of such notice of election to each Rating Agency
as soon as practicable thereafter. Such 24-hour period shall be extended for no
longer than an additional four Business Days after the receipt of the
information if the Purchaser requests additional information related to such
foreclosure within such 24-hour period; provided, however, that the Purchaser
will have at least one Business Day to make such election following its receipt
of any requested additional information. Any such additional information shall
(i) not be confidential in nature and (ii) be obtainable by the Servicer from
existing reports, certificates or statements or otherwise be readily accessible
to its servicing personnel. The Purchaser agrees that it has no right to deal
with the mortgagor. However, if the Servicer's normal foreclosure policies
include acceptance of a deed-in-lieu of foreclosure or short payoff, the
Purchaser will be notified and given two Business Days to respond.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the Purchaser shall obtain a Current Appraisal as
soon as practicable, and shall provide the Servicer with a copy of such Current
Appraisal.
(d) Within two Business Days of making any Election to Delay Foreclosure,
the Purchaser shall remit by wire transfer to the Trustee, for deposit in the
Collateral Fund, an amount, as calculated by the Servicer, equal to the sum of
(i) 125% of the greater of the Scheduled Principal Balance of the Mortgage Loan
and the value shown in the Current Appraisal referred to in subsection (c) above
(or, if such Current Appraisal has not yet been obtained, the Servicer's
estimate thereof, in which case the required deposit under this subsection shall
be adjusted upon obtaining such Current Appraisal), and (ii) three months'
interest on the Mortgage Loan at the applicable Mortgage Rate. If any Election
to Delay Foreclosure extends for a period in excess of three months (such excess
period being referred to herein as the "Excess Period"), the Purchaser shall
remit by wire transfer in advance to the Trustee for deposit in the Collateral
Fund the amount of each additional month's interest, as calculated by the
Servicer, equal to interest on the Mortgage Loan as the applicable Mortgage Rate
for the Excess Period. The terms of this Agreement will no longer apply to the
servicing of any Mortgage Loan upon the failure of the Purchaser to deposit the
above amounts relating to the Mortgage Loan within two Business Days of (i) the
Election to Delay Foreclosure or (ii) the beginning of the related Excess
Period, as the case may be.
(e) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the Servicer or the Trustee may withdraw from the
Collateral Fund from time to time amounts necessary to reimburse the Servicer
for all related Monthly Advances and Liquidation Expenses thereafter made by the
Servicer as Servicer in accordance with the Pooling and Servicing Agreement. To
the extent that the amount of any such Liquidation Expense is determined by the
Servicer based on estimated costs, and the actual costs are subsequently
determined to be higher, the Servicer or the Trustee may withdraw the additional
amount from the Collateral Fund to reimburse the Company. In the event that the
Mortgage Loan is brought current by the mortgagor, the amounts so withdrawn from
the Collateral Fund shall be redeposited therein as and to the extent that
reimbursement therefor from amounts paid by the mortgagor is not prohibited
pursuant to the Pooling and Servicing Agreement as of the date hereof. Except as
provided in the preceding sentence, amounts withdrawn from the Collateral Fund
to cover Monthly Advances and Liquidation Expenses shall not be redeposited
therein or otherwise reimbursed to the Purchaser. If and when any such Mortgage
Loan is brought current by the mortgagor, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
previous withdrawals and deposits pursuant to this subsection and after
reimbursement to the Servicer for all related Monthly Advances) shall be
released to the Purchaser.
(f) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the Servicer shall continue to service the
Mortgage Loan in accordance with its customary procedures (other than the delay
in Commencement of Foreclosure as provided herein). If and when, following such
election, the Purchaser shall notify the Company that it believes that it is
appropriate to do so, the Servicer shall proceed with the Commencement of
Foreclosure; provided that, in any event, if the Mortgage Loan is not brought
current by the mortgagor by the time the loan becomes 6 months delinquent, the
Purchaser's election shall no longer be effective, unless the Purchaser shall
have purchased the related Mortgage Loan promptly following (and in any event
not later than the third Business Day after) the end of such 6-month period in
the manner provided in the following two sentences, and the Servicer shall be
entitled to proceed with the Commencement of Foreclosure. Any purchase of such
Mortgage Loan by the Purchaser pursuant to the preceding sentence shall be at a
purchase price equal to the unpaid principal balance of the Mortgage Loan plus
accrued interest at the Mortgage Rate from the date last paid by the mortgagor.
Such purchase price shall be deposited by the Purchaser into the Collateral Fund
in immediately available funds on the Business Day which is the date of purchase
and the Purchaser shall instruct the Trustee (with notice to the Servicer) to
withdraw such amount therefrom on such Business Day and remit the same to the
Trust Fund for application as Liquidation Proceeds pursuant to the Pooling and
Servicing Agreement. Following such withdrawal, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
previous withdrawals and deposits pursuant to this Agreement and after
reimbursement to the Servicer for all related Monthly Advances) shall be
released to the Purchaser.
(g) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Delay Foreclosure and as to which
the Servicer proceeded with the Commencement of Foreclosure in accordance with
subsection (f) above, the Servicer shall calculate the amount, if any, by which
the value shown on the Current Appraisal obtained under subsection (c) exceeds
the actual sales price obtained for the related Mortgaged Property (net of
Liquidation Expenses and unreimbursed Monthly Advances related to the extended
foreclosure period), and the Servicer or the Trustee shall withdraw the amount
of such excess from the Collateral Fund and shall remit the same to the Trust
Fund for application as additional Liquidation Proceeds pursuant to the Pooling
and Servicing Agreement. After making such withdrawal, all amounts remaining in
the Collateral Fund in respect of such Mortgage Loan (after adjustment for all
withdrawals and deposits pursuant to subsection (e) and after reimbursement to
the Servicer for all related Monthly Advances) shall be released to the
Purchaser.
Section 2.03. Purchaser's Election to Commence Foreclosure Proceedings.
(a) In connection with any Mortgage Loan identified in a report under
Section 2.01(a)(i)(B), the Purchaser may elect to instruct the Servicer to
proceed with the Commencement of Foreclosure as soon as practicable. Such
election must be evidenced by written notice received by the Servicer by 5:00
p.m., New York City time, on the third Business Day following the delivery of
such report under Section 2.01(a)(i).
(b) Within two Business Days of making any Election to Foreclose, the
Purchaser shall remit to the Trustee, for deposit in the Collateral Fund, an
amount, as calculated by the Company, equal to 125% of the current Scheduled
Principal Balance of the Mortgage Loan and three months' interest on the
Mortgage Loan at the applicable Mortgage Rate. If and when any such Mortgage
Loan is brought current by the mortgagor, all amounts in the Collateral Fund in
respect of such Mortgage Loan (after adjustment for all withdrawals and deposits
pursuant to subsection (c) below) shall be released to the Purchaser. The terms
of this Agreement will no longer apply to the servicing of any Mortgage Loan
upon the failure of the Purchaser to deposit the above amounts relating to the
Mortgage Loan within two Business Days of the Election to Foreclose.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Foreclose, the Servicer shall continue to service the Mortgage Loan
in accordance with its customary procedures. In connection therewith, the
Servicer shall have the same rights to make withdrawals for Monthly Advances and
Liquidation Expenses from the Collateral Fund as are provided under Section
2.02(e), and the Servicer shall make reimbursements thereto to the limited
extent provided under such subsection. The Servicer shall not be required to
proceed with the Commencement of Foreclosure if (i) the same is stayed as a
result of the mortgagor's bankruptcy or is otherwise barred by applicable law,
or to the extent that all legal conditions precedent thereto have not yet been
complied with, or (ii) the Servicer believes there is a breach of
representations or warranties by the Servicer, which may result in a repurchase
or substitution of such Mortgage Loan, or (iii) the Servicer has or expects to
have the right under the Pooling and Servicing Agreement to purchase the
defaulted Mortgage Loan and intends to exercise such right or (iv) the Servicer
reasonably believes the Mortgaged Property may be contaminated with or affected
by hazardous wastes or hazardous substances (and the Servicer supplies the
Purchaser with information supporting such belief) or (v) the same is prohibited
by or is otherwise inconsistent with the provisions of the Pooling and Servicing
Agreement. Any foreclosure that has been initiated may be discontinued (i)
without notice to the Purchaser if the Mortgage Loan has been brought current or
if a refinancing or prepayment occurs with respect to the Mortgage Loan
(including by means of a short payoff approved by the Purchaser) or (ii) with
notice to the Purchaser if the Servicer has reached the terms of a forbearance
agreement unless instructed otherwise by the Purchaser within two Business Days
of notification.
(d) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Foreclose and as to which the
Servicer proceeded with the Commencement of Foreclosure in accordance with
subsection (c) above, the Servicer shall calculate the amount, if any, by which
the Scheduled Principal Balance of the Mortgage Loan at the time of liquidation
(plus all unreimbursed Monthly Advances and Liquidation Expenses in connection
therewith other than those previously paid from the Collateral Fund) exceeds the
actual sales price obtained for the related Mortgaged Property, and the Company
or the Trustee shall withdraw the amount of such excess from the Collateral Fund
and shall remit the same to the Trust Fund for application as additional
Liquidation Proceeds pursuant to the Pooling and Servicing Agreement. After
making such withdrawal, all amounts remaining in the Collateral Fund (after
adjustment for all withdrawals and deposits pursuant to subsection (c) above and
after reimbursement to the Servicer for all related Monthly Advances) in respect
of such Mortgage Loan shall be released to the Purchaser.
Section 2.04. Termination.
(a) With respect to all Mortgage Loans included in the Trust Fund, the
Purchaser's right to make any Election to Delay Foreclosure or any Election to
Foreclose and the Company's obligations under Section 2.01 shall terminate on
the earliest to occur of the following: (i) at such time as the Class
Certificate Principal Balance of the Class B_ Certificates has been reduced to
zero, (ii) if the greater of (x) 43% (or such lower or higher percentage that
represents the Company's actual loss experience with respect to the Mortgage
Loans in the related pool) of the aggregate principal balance of all Mortgage
Loans that are in foreclosure or are more than 90 days delinquent on a
contractual basis and the aggregate book value of REO properties or (y) the
aggregate amount that the Servicer estimates through its normal servicing
practices will be required to be withdrawn from the Collateral Fund with respect
to Mortgage Loans as to which the Purchaser has made an Election to Delay
Foreclosure or an Election to Foreclose exceeds (z) the then-current Class
Certificate Principal Balance of the Class B_ Certificates, or (iii) upon any
transfer by the Purchaser of any interest (other than the minority interest
therein, but only if the transferee provides written acknowledgment to the
Servicer of the Purchaser's right hereunder and that such transferee will have
no rights hereunder) in the Class B_ Certificates [or in the Class B5
Certificates] (whether or not such transfer is registered under the Pooling and
Servicing Agreement), including any such transfer in connection with a
termination of the Trust Fund. Unless earlier terminated as set forth herein,
this Agreement and the respective rights, obligations and responsibilities of
the Purchaser and the Servicer hereunder shall terminate immediately upon (x)
the later to occur of (i) the final liquidation of the last Mortgage Loan as to
which the Purchaser made any Election to Delay Foreclosure or any Election to
Foreclose and the withdrawal of all remaining amounts in the Collateral Fund as
provided herein and (ii) ten (10) Business Days' notice or (y) the occurrence of
any event that results in the Purchaser becoming an "affiliate" of the Trustee
within the meaning of the Prohibited Transaction Exemption (as defined in the
Pooling and Servicing Agreement).
(b) The Purchaser's rights pursuant to Section 2.02 or 2.03 of this
Agreement shall terminate with respect to a Mortgage Loan as to which the
Purchaser has exercised its rights under Section 2.02 or 2.03 hereof, upon
Purchaser's failure to deposit any amounts required pursuant to Section 2.02(d)
or 2.03(b) after one Business Day's notice of such failure.
Section 2.05. Notification. The Purchaser shall promptly notify the Trustee
and the Servicer if such Purchaser becomes aware of any discussions, plans or
events that might lead to such Person's becoming an "affiliate" (within the
meaning of the Prohibited Transaction Exemption) of the Trustee, provided that
the contents of any such notification shall be kept confidential by the parties
to this Agreement.
ARTICLE III
COLLATERAL FUND; SECURITY INTEREST
Section 3.01. Collateral Fund. Upon payment by the Purchaser of the initial
amount required to be deposited in the Collateral Fund pursuant to Article II,
the Servicer shall request the Trustee to establish and maintain with the
Trustee a segregated account entitled "REMIC Multi-Class Pass-Through
Certificates 199_-__ Collateral Fund, for the benefit of GE Capital Mortgage
Services, Inc. and ____________________ on behalf of Certificateholders, as
secured parties" (the "Collateral Fund"). Amounts held in the Collateral Fund
shall continue to be the property of the Purchaser, subject to the first
priority security interest granted hereunder for the benefit of such secured
parties, until withdrawn from the Collateral Fund pursuant to the Section 2.02
or 2.03 hereof.
Upon the termination of this Agreement and the liquidation of all Mortgage
Loans as to which the Purchaser has made any Election to Delay Foreclosure or
any Election to Foreclose pursuant to Section 2.04 hereof, the Servicer shall
distribute to the Purchaser all amounts remaining in the Collateral Fund
together with any investment earnings thereon (after giving effect to all
withdrawals therefrom permitted under this Agreement).
The Purchaser shall not take or direct the Servicer or the Trustee to take
any action contrary to any provision of the Pooling and Servicing Agreement. In
no event shall the Purchaser (i) take or cause the Trustee or the Servicer to
take any action that could cause any REMIC established under the Pooling and
Servicing Agreement to fail to qualify as a REMIC or cause the imposition on any
such REMIC of any "prohibited transaction" or "prohibited contribution" taxes or
(ii) cause the Trustee or the Servicer to fail to take any action necessary to
maintain the status of any such REMIC as a REMIC.
Section 3.02. Collateral Fund Permitted Investments. The Servicer shall, at
the written direction of the Purchaser, direct the Trustee to invest the funds
in the Collateral Fund in the name of the Trustee in Collateral Fund Permitted
Investments. Such direction shall not be changed more frequently then quarterly.
In the absence of any direction, the Servicer shall direct the Trustee select
such investments in accordance with the definition of Collateral Fund Permitted
Investments in its discretion.
All income and gain realized from any investment as well as any interest
earned on deposits in the Collateral Fund (net of any losses on such
investments) and any payments of principal made in respect of any Collateral
Fund Permitted Investment shall be deposited in the Collateral Fund upon
receipt. All costs and realized losses associated with the purchase and sale of
Collateral Fund Permitted Investments shall be borne by the Purchaser and the
amount of net realized losses shall be promptly deposited by the Purchaser in
the Collateral Fund. The Company shall periodically (but not more frequently
than monthly) direct the Trustee to distribute to the Purchaser upon request an
amount of cash, to the extent cash is available therefor in the Collateral Fund,
equal to the amount by which the balance of the Collateral Fund, after giving
effect to all other distributions to be made from the Collateral Fund on such
date, exceeds the Required Collateral Fund Balance. Any amounts so distributed
shall be released from the lien and security interest of this Agreement.
Section 3.03. Grant of Security Interest. In order to secure the
obligations of the Purchaser hereunder to the Company and the Trustee for the
benefit of Certificateholders (other than its obligations under Section 4.10),
the Purchaser hereby grants to the Servicer and to the Trustee for the benefit
of the Certificateholders a security interest in and lien on all of the
Purchaser's right, title and interest, whether now owned or hereafter acquired,
in and to: (1) the Collateral Fund, (2) all amounts deposited in the Collateral
Fund and Collateral Fund Permitted Investments in which such amounts are
invested (and the distributions and proceeds of such investments) and (3) all
cash and non-cash proceeds of any of the foregoing, including proceeds of the
voluntary or involuntary conversion thereof (all of the foregoing collectively,
the "Collateral").
The Purchaser acknowledges the lien on and security interest in the
Collateral for the benefit of the Servicer and the Trustee on behalf of the
Certificateholders. The Purchaser shall take all actions requested by the
Company or the Trustee as may be reasonably necessary to perfect the security
interest created under this Agreement in the Collateral and cause it to be prior
to all other security interests and liens, including the execution and delivery
to the Company or at its direction the Trustee for filing of appropriate
financing statements in accordance with applicable law.
Section 3.04. Collateral Shortfalls. In the event that amounts on deposit
in the Collateral Fund at any time are insufficient to cover any withdrawals
therefrom that the Servicer or the Trustee is then entitled to make hereunder,
the Purchaser shall be obligated to pay such amounts to the Servicer or the
Trustee immediately upon demand. Such obligation shall constitute a general
corporate obligation of the Purchaser. The failure to pay such amounts within
two Business Days of such demand (except for amounts to cover interest on a
Mortgage Loan pursuant to Sections 2.02(d) and 2.03(b)), shall cause an
immediate termination of the Purchaser's right to make any Election to Delay
Foreclosure or Election to Foreclose and the Servicer's obligations under this
Agreement with respect to all Mortgage Loans to which such insufficiencies
relate, without the necessity of any further notice or demand on the part of the
Servicer.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Amendment. This Agreement may be amended from time to time by
the Servicer and the Purchaser by written agreement signed by the Servicer and
the Purchaser provided that no such amendment shall have a material adverse
effect on the holders of other Classes of Certificates.
Section 4.02. Counterparts. 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 4.03. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 4.04. Notices. All demands, notices and direction hereunder shall
be in writing or by telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company, with respect to notices pursuant to
Sections 2.02 and 2.03 hereto,
GE Capital Mortgage Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _____
Telephone: _____
Facsimile: _____
with respect to all other notices pursuant to this Agreement,
GE Capital Mortgage Services, Inc.
Three Executive Campus
Cherry Hill, New Jersey 08002
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished in writing by the
Company, or
(b) in the case of the Purchaser, with respect to notices pursuant to
Section 2.01,
--------------------------------
--------------------------------
Attention:______________________
Telephone:______________________
Facsimile:______________________
with respect to all other notices pursuant to this Agreement,
--------------------------------
--------------------------------
Attention:______________________
Telephone:______________________
Facsimile:______________________
or such other address as may hereafter be furnished in writing by the
Purchaser, or
(c) in the case of the Trustee,
--------------------------------
--------------------------------
Attention:______________________
Telephone:______________________
Facsimile:______________________
Section 4.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever, including regulatory, 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.
Section 4.06. Successor and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and the
respective successors and assigns of the parties hereto; provided, however, that
the rights under this Agreement cannot be assigned by the Purchaser without the
consent of the Servicer.
Section 4.07. Article and Section Headings. The article and section
headings herein are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
Section 4.08. Third Party Beneficiaries. The Trustee on behalf of
Certificateholders is the intended third party beneficiary of this Agreement.
Section 4.09. Confidentiality. The Purchaser agrees that all information
supplied by or on behalf of the Servicer pursuant to Section 2.01 or 2.02,
including individual account information, is the property of the Servicer and
the Purchaser agrees to use such information solely for the purposes set forth
in this Agreement and to hold such information confidential and not to disclose
such information.
Section 4.10. Indemnification. The Purchaser agrees to indemnify and hold
harmless the Company against any and all losses, claims, damages or liabilities
to which it may be subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
actions taken by the Servicer in accordance with the provisions of this
Agreement and which actions conflict or are alleged to conflict with the
Servicer's obligations under the Pooling and Servicing Agreement. The Purchaser
hereby agrees to reimburse the Servicer on demand for the reasonable legal or
other expenses incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action.
[Section 4.11. Delayed Effectiveness. The Purchaser agrees that,
notwithstanding any other provision of this Agreement, the Purchaser shall have
no rights hereunder, and the Company shall have no obligations hereunder, until
the Class Certificate Principal Balance of the Class B Certificates has been
reduced to zero and any Special Servicing and Collateral Fund Agreement between
the Servicer and the Purchaser relating to such Class B Certificates has been
terminated.]
IN WITNESS WHEREOF, the Servicer and the Purchaser have caused their names
to be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
GE CAPITAL MORTGAGE SERVICES, INC.
By: _______________________________
Name:
Title:
[PURCHASER]
By: _______________________________
Name:
Title:
Acknowledged and agreed to:
[TRUSTEE]
By:___________________________________
Name:
Title:
EXHIBIT L
FORM OF LOST NOTE AFFIDAVIT AND AGREEMENT
I, _________________________________________, being duly sworn, do hereby
state under oath that:
1. I am a duly elected ______________________ of GE Capital [Mortgage
Services,] Inc. [Funding Corporation] (the "Company") and am duly authorized to
make this affidavit.
2. This affidavit is being delivered in connection with the transfer of the
Mortgage Loan described in Paragraph 3 hereof by the Company pursuant to the
Pooling and Servicing Agreement dated as of [date] between [GE Capital Mortgage
Funding Corporation, as Depositor,] the [as Depositor,] the Company, as
[Depositor and Servicer] and ____, relating to the [Company]'s REMIC Multi-Class
Pass-Through Certificates, Series [____] ("Agreement").
Such Mortgage Loan constitutes a Designated Loan.
3. The Company is the payee under the following described Mortgage Note
("Mortgage Note") which evidences the obligation of the borrower(s) to repay the
Mortgage Loan:
Loan Number: __________________________________
Mortgage Note Date:_____________________________
Borrower(s): ___________________________________
Original Payee (if not the Company): ___________
Original Amount:________________________________
Mortgage Rate: _________________________________
Address of Mortgaged Property: _________________
------------------------------------------------
4. The Company is the lawful owner of the Mortgage Note and has not
canceled, altered, assigned or hypothecated the Mortgage Note. [Modify if sold
to Funding]
5. A thorough and diligent search for the executed original Mortgage Note
was undertaken and was unsuccessful.
6. Attached hereto is a true and correct copy of the Mortgage Note.
7. The Mortgage Note has not been endorsed by the Company in any manner
inconsistent with its transfer of the Mortgage Loan under the [Loan Sale]
Agreement.
8. Without limiting the generality of the rights and remedies of the
Trustee contained in the [Loan Sale] Agreement, the Company hereby confirms and
agrees that in the event the inability to produce the executed original Mortgage
Note results in a breach of the representations and warranties appearing in
Agreement subsections 2.03(a)(ii) (the validity and enforceability of the lien
created by the Mortgage Loan) or (x) (no valid offset, defense or counterclaim
to any Mortgage Note or Mortgage), the Company shall repurchase the Mortgage
Loan at the Purchase Price and otherwise in accordance with Section 2.03(b) of
the Agreement. In addition, the Company covenants and agrees to indemnify the
Trustee and the Trust Fund from and hold them harmless against any and all
losses, liabilities, damages, claims or expenses (other than those resulting
from negligence or bad faith of the Trustee) arising from the Company's failure
to have delivered the Mortgage Note to the Trustee, including without limitation
any such losses, liabilities, damages, claims or expenses arising from any
action to enforce the indebtedness evidenced by the Mortgage Note or any claim
by any third party who is the holder of such indebtedness by virtue of
possession of the Mortgage Note.
9. In the event that the Company locates the executed original Mortgage
Note, it shall promptly provide the Mortgage Note to the Trustee.
10. Capitalized terms not otherwise defined herein shall have the meanings
given them in the Agreement.
Date: _______________________
________________________________
(signature)
________________________________
(print name)
________________________________
(print title)
State of New Jersey )
) ss.:
)
On this ____________________day of ___________________, __, before me
appeared ____________________________, to me personally known, who acknowledged
the execution of the foregoing and who, having been duly sworn states that
he/she is a/the ______________________________of GE Capital Mortgage Services,
Inc., that any representations therein contained are true, that this Lost Note
Affidavit was signed and sealed on behalf of GE Capital Mortgage Services, Inc.
and that this Lost Note Affidavit is the free act and deed of GE Capital
Mortgage Services, Inc.
---------------------------------------
(Notary Public)
[Notarial Seal]
EXHIBIT M
SCHEDULE OF DESIGNATED LOANS
EXHIBIT N
[LOAN SALE AGREEMENT]
EXHIBIT O
SENIOR PRINCIPAL PRIORITIES
[Distributions on the Certificates]